Delhi District Court
Sh. Purshottam Lal Gupta vs Sh. Naresh Kumar on 9 September, 2013
1
IN THE COURT OF SH. SHAILENDER MALIK, SCJ/RC/NW/ROHINI COURTS,
DELHI
RCA NO.03/13
Sh. Purshottam Lal Gupta
S/o Late Sh. Khushi Ram Aggarwal
R/o B183,3rd Floor,
Lok Vihar, Pitampura
Delhi110034
....Appellant
Versus
1. Sh. Naresh Kumar
2. Sh.Suresh Kumar
3. Smt. Sunita
W/o Late Sh.Ramesh Kumasr
4. Master Rahul (Minor)
S/o Late Sh. Ramesh Kumar
(Respondent No.4 being minor,
to be pursued through his mother/
guardian Smt. Snita/Respondent No.3)
All R/o Village & Post Kanjhawala
Delhi110081
....Respondents
Date of institution: 24.01.2013
Date of reserving judgment:09.09.2013
Date of announcing judgment:09.09.2013
RCA3/13 Sh.Purshottam Lal Gupta Vs. Sh. Naresh Kumar & Ors.
2
J U D G M E N T:
1. This order of mine will dispose off the appeal filed by the Appellant/plaintiff against judgment/decree dt. 14.12.12 passed by Ld. Civil Judge whereby Suit no. 588/08 of plaintiff/appellant herein, for relief of Permanent Injunction was dismissed.
2. Factual background of the matter precisely is, plaintiff Sh. Purshottam Lal Gupta filed the suit for decree of Permanent Injunction claiming that he had purchased on 29.05.2000 a plot which plaintiff claims to be industrial plot being part of Khasra no. 143/363 (206) of Revenue Estate of Village Kanjhawala, Delhi(suit property) from one Sultan Singh S/o Sh. Jeevan on the basis of registered GPA, Will, notarized Agreement to Sell, indemnity Bond, cash receipt. Case of the plaintiff further is that said Sultan Singh had purchased the above said suit property from its original allottee under consolidation proceedings namely Sh. Hoshiyar Singh S/o Sh.Mam Chand by registered attorney, registered Will, notarized Agreement to Sell, Affidavit and Cash Receipt all dt. 11.03.1999. It is sated that both Sh. Sultan Singh and Sh. Hoshiyar Singh have already expired. It is further averred in the plaint that regular sale deed of the suit property could not be executed and registered for want of any legal provision as land of village is under consolidation proceedings.
The case of the plaintiff further is that since the purchase of the above said suit property, plaintiff is in possession of the same and stated to have also raised construction of a room measuring 10'X12' in the suit property alongwith a boundary wall covering plot no. 143/363364. It is also stated that plaintiff has also got sanctioned the domestic electricity connection in the abovesaid suit property from the NDPL upon making requisite payment. It is stated that plaintiff has obtained the copy of he register (Karbahi Chakbandi) dt. 29.6.2000 to ascertain latest position of the suit property and the plaintiff came to know that mutation proceedings have been effected only in respect of the RCA3/13 Sh.Purshottam Lal Gupta Vs. Sh. Naresh Kumar & Ors.
3residential plot no. 142/703 (202).
It is stated that plaintiff has been enjoying the possession of the suit property except some trifle bit on behalf of defendants, however on 12.08.2008 when plaintiff alongwith his servant went to the suit property, he found defendant no.1 already at the spot alongwith 34 other persons with the intention to take possession of the suit property on the basis of mutation order dt 20.04.2007 in favour of defendant no.1 passed by consolidation officer concerned. It is stated that mutation order dt. 20.04.2007 has already been challenged before the Deputy Commissioner (NW), Kanjhawala. It is stated that after the intervention of the local persons matter was pacified and plaintiff was advised to confirm the status of the suit property and to take legal recourse. It is stated that defendant no.1 has got the mutation order passed in his favour whereas plaintiff claims to be owner in possession of the property. Hence the suit was filed with the prayer for decree of permanent injunction to restrain the defendant from creating any third party interest by selling, gifting, mortgaging the suit property and also with the prayer for restraining the defendant from dispossessing the plaintiff from the suit property except with the due process of law.
3. The defendant during the trial filed the WS taking various objections interalia suit being devoid of cause of action, bad for non joinder of Ms. Shanti Devi (mother of defendant no.1 to 3), suit being not properly valued for the purpose of court fees and jurisdiction, suit being liable to be stayed in view of pendency of the proceedings before the Collector (NorthWest) wherein mutation order dt. 20.4.07 is challenged. Defendants have also taken the plea that the suit is barred by limitation and Civil Court has no jurisdiction to entertain the suit. While denying the case of the plaintiff on merits defendants (who are son of Sh.Hoshiyar Singh admittedly the original allottee of the suit land under consolidation proceedings) have pleaded that plaintiff has no right in the suit property as plaintiff could not have purchased the property by documents dt. 29.05.2000 and all alleged documents of sale are false and disputed. It is RCA3/13 Sh.Purshottam Lal Gupta Vs. Sh. Naresh Kumar & Ors.
4pleaded that Sh. Sultan Kanwar himself has no title or interest in the suit property, therefore could not have entered into any sale transaction regarding suit property as there has been no sale transaction between Sh. Hoshiyar Singh and Sh.Sultan Kanwar and no sale consideration was ever paid by said Sh. Sultan Kanwar to Sh. Hoshiyar Singh. Moreover, under the original terms of consolidation proceedings property could not have been transfered or alienated by way of sale. It is stated that the documents in favour of Sh. Sultan Kanwar dt. 11.3.99 were infact prepared by fraud, cheating and illegal practice, therefore those documents are not binding on defendants. It is pleaded that Sh. Hoshiyar Singh could not have sell the suit property nor had obtained any sale consideration as he was not under a sound disposing mind and was suffering from paralysis on the right side and thus was incapable of understanding the consequences of his actions. It is stated that alleged sale transaction in favour of Sh. Sultan Kanwar is illegal. It is also denied that under the Chakbandi proceedings dt. 29.6.2000 mutation was affected only in respect of the residential pot bearing no. 142/703. it is denied that the plaintiff has ever been in possession of the suit property or that plaintiff is owner of the same. It is stated that plaintiff has illegally got domestic electricity connection sanctioned. While denying the case of the plaintiff it is further pleaded that infact defendants are lawfully in possession of the suit property.
4. Plaintiff/appellant during the trial filed the replication wherein all the facts as pleaded in the WS were controverted. Plaintiff has stated in the replication that order dt. 20.04.2007 of Tehsildar has been challenged before the Collector(NW) U/s 65 of DLR Act, 1954 and it is stated that defendant no.1 got the mutation regarding suit property in his name by filing false declaration and concealing material facts.
5. Considering the pleadings, Ld. Trial Court framed the following issues on 30.7.2012:
i) Whether the plaintiff is entitled for decree of Permanent Injunction, as prayed for ?OPP RCA3/13 Sh.Purshottam Lal Gupta Vs. Sh. Naresh Kumar & Ors.5
ii) Whether the suit is barred by limitation ?OPD.
Iii) Relief.
6. During the trial defendants stopped appearing and thus were proceeded exparte on 17.7.2012. Plaintiff in order to establish his case has examined himself being only witness.
Ld. Trial Court after examining the facts and circumstances and the evidence of the plaintiff dismissed the suit holding that plaintiff has failed to establish his right in the suit property. Ld. Trial Court opined that since suit property is agriculture land and it is the revenue record which can reflect the title in respect of agriculture land and same can not be questioned in civil court and plaintiff failed to place on record any revenue record of his title. Ld. Trial Court further opined that Injunction being equitable relief can not be given to the plaintiff who has failed to establish his right over the suit property specifically when plaintiff has stated in para 2 of the plaint that sale deed of the suit property could not have been executed because of want of any legal provision as village was under consolidation proceedings. Ld. Trial Court held that plaintiff failed to establish title as well as possession in the suit property.
The impugned judgment dt. 14.12.12 of Ld.Civil Judge has been challenged in the present appeal on the ground that Ld. Trial Court failed to appreciate the evidence led on behalf of plaintiff, specifically when defendants who were proceeded exparte and were not contesting the claim of the plaintiff as such evidence of the plaintiff remained unchallenged in the record. It is stated in the appeal that Ld. Trial Court failed to appreciate that once the agriculture land loose its character of being agriculture then Civil Court has jurisdiction to entertain a suit more specifically for relief of injunction and Ld. Trial Court ignored the order dt. 02.02.2010 passed during the trial when application of defendants u/o 7 rule 11 CPC was dismissed holding that Civil Court has jurisdiction. The decree of dismissal of suit has been challenged also on the ground that Ld. Trial court has ignored the order dt. 31.01.2012 Ex.PW1/17, RCA3/13 Sh.Purshottam Lal Gupta Vs. Sh. Naresh Kumar & Ors.
6passed by Deputy Commissioner (NW) Kanjhawala, whereby the mutation order in favour of defendant dt. 20.04.2007, passed by Tehsildar was set aside and proceedings were referred back. It is stated that, that order dt. 31.1.2012 of deputy Commissioner has not been considered at all by Ld.Trial Court while coming to the conclusion. It is further stated that since for the relief of permanent injunction the basic ingredients required to be proved was possession, plaintiff during the trial has lead enough evidence to establish his possession in the suit property however the evidence regarding possession of the plaintiff in the suit property has not been properly appreciated. There are documents of possession proved on record as Ex.PW1/1 to Ex.PW 1/12 which not only established the ownership but also the possessiory right of the plaintiff in the suit property beside the order dt. 31.01.12 passed by Deputy Commissioner (NW) Kanjhawala. It is stated that plaintiff was seeking only relief of decree of permanent injunction on the basis of ownership and possession in the suit property.
7. I have heard Ld. Counsel for appellant and Ld.Counsel for respondent. I have also gone through the written arguments filed on behalf of appellant. Having heard the submissions at bar and having gone through the record of the Trial Court, first of all it is necessary to observe that even if defendants during trial were proceeded exparte as after filing the WS defendants have stopped appearing to contest the suit, this does not meant that suit has to be mechanically decreed only on the evidence of the plaintiff. It is needless to reiterate well established preposition of law that plaintiff is required to prove his case by leading positive evidence, by preponderance of probability, therefore, merely because defendants were proceeded exparte it can not be stated that suit was wrongly dismissed. Provision of Section 101/102 of Indian Evidence Act clearly put onus on the plaintiff to establish his case for relief as sought for.
Now let us appreciate the facts and evidence as come on record, as discussed above plaintiff has examined himself as only witness who was not RCA3/13 Sh.Purshottam Lal Gupta Vs. Sh. Naresh Kumar & Ors.
7even cross examined on behalf of defendants as defendants stopped appearing and were proceeded exparte. If we read the evidence of PW1 Sh. Purshottam Lal Gupta he in his examination in chief has testified all those facts as stated in the plaint. PW 1 claims to have purchased suit property being part of Khasra No. 143/363 within extended abadi of village Kanjhawala from one Sh. Sultan Kanwar by GPA dt. 29.5.2000, Will, Agreement to Sell, indemnity bond, possession letter, affidavit, receipt Ex.PW1/6 to Ex.PW 1/12. PW 1 says that said Sh. Sultan Kanwar had purchased the above said property from Sh. Hoshiyar Singh (father of defendants herein) by documents GPA, Will, Affidavit, Agreement to Sell, Receipt all dt. 11.03.1999, Ex.PW1/1 to Ex.PW1/5. Perusal of these documents will clearly indicate that it is mentioned in these documents that a industrial plot measuring 6 biswas comprised in Khasra No. 143/363 situated within the extended abadi of village Kanjhawala is being sold. Evidently documents Ex.PW1/1 to Ex.PW1/5 in favour of Sh. Sultan Kanwal by Sh. Hoshiyar Singh and documents Ex.PW1/6 to Ex.PW1/12 by Sh. Sultan Kanwar in favour of Appellant herein are though documents of sale but there is no registered sale deed in respect of alleged industrial plot. Plaintiff has admittedly stated in para 2 of the plaint that sale deed of the suit property could not be executed because of want of any legal provision as village was under
consolidation proceedings. Evidently alleged documents of sale can not be taken up as good title documents in favour of plaintiff/appellant. These documents do not establish title in favour of the plaintiff from any angle, first because the title of Sh. Sultan Kanwar itself is not established because even documents in his favour are also not recognizable in law. Consequently land being within extended abadi of the village can not be a land for industrial purpose. Any land can not be made a industrial land by just mentioning in any documents of sale. There is no denial that land comprised in Khasra No. 142/363 is within the Abadi of village Kanjhawala and was in the name of Sh. Hoshiyar Singh. As is evident from the revenue record placed on record, plaintiff has not placed on record any revenue record showing incorporation of his name RCA3/13 Sh.Purshottam Lal Gupta Vs. Sh. Naresh Kumar & Ors.8
after the alleged sale. The plaintiff/appellant claims to have purchased the suit land on 29.5.2000 and has also claimed to be in its possession till 22.8.08, if according to plaintiff he has been in possession of above said suit land for continuous period of 8 years. It is hard to understand as to why he has not taken any step to get his name mutated in the revenue record on the basis of alleged documents. During the trial plaintiff has also relied upon in evidence, photographs Ex.PW1/19 to establish his possession as well as NDPL Bill Ex.PW1/16 to show that a domesic electricity connection has been taken in suit property. These documents also to my mind do not establish any possessiory right in favour of plaintiff because on one hand plaintiff is claiming it to be an industrial plot and on the other hand stated to have obtained a domestic electricity connection. Moreover perusal of the NDPL bill Ex.PW1/16 would show that it was a temporary connection and pertains to year 2008. Thus document Ex.PW1/16 i.e. Bill of electricity do not establish that plaintiff has been in possession of the suit property since 2000. Similarly photograph only established a boundary wall and presene of the plaintiff in the suit property on the relevant day. Photograph can not be taken to be a conclusive evidence of continuous possession of plaintiff from 2000 till 2008 as claimed. Thus it is very much evident from carefully examining the evidence and the documents proved on the record that Ld. Trial Court has correctly concluded in para 16 of its judgment that evidence is not sufficient to establish the right of the plaintiff over the suit property for claiming equitable relief of injunction againat alleged dispossession or creating of third party interest.
So far as arguments of Ld. Counsel for appellant that Trial Court had not considered and appreciated the order of Collector (NW) dt. 31.01.2012,Ex.PW1/17. No doubt there is no reference regarding the abovesaid order Ex.PW 1/17 passed by Collector(NW) but I find upon perusal of the order dt. 31.01.2012 Ex.PW1/17, it is only stated that in view of the alleged claim of purchase of suit property by Sh. Purshottam Lal Gupta (appellant) earlier mutation order dt. 20.4.2007 was set aside and case was again remanded to RCA3/13 Sh.Purshottam Lal Gupta Vs. Sh. Naresh Kumar & Ors.9
RA/SDM for proper adjudication u/s 23 of Delhi Rent Control Act, 1954. Thus this order does not conclusively established any right in favour of plaintiff. It only refers regarding remanding back of the matter to SDM concern for fresh adjudication. Moreover this order Ex.PW1/17 is silent as to the possession of the plaintiff in the suit property. Thus this order can not be of any help for plainiff for seeking the relief of injunction as prayed in this court. Thus for the reasons discussed above I find that there is no improprietory in the finding of Ld. Trial Court.Therefore, appeal is being dismissed. TCR be sent back alongwith copy of the order. Appeal file be consigned to record room.
Announced in the open Court On 09.09.2013 (SHAILENDER MALIK) SCJ/RC,NW/ROHINI COURTS/DELHI RCA3/13 Sh.Purshottam Lal Gupta Vs. Sh. Naresh Kumar & Ors.
10RCA03/13 09.09.13 Present. None for appellant Respondent in person.
Vide my separate judgment of even date appeal stands dismissed. TCR be sent back alongwith copy of the order. File be consigned to record room.
(SHAILENDER MALIK) SCJ/RC,NW/ROHINI COURTS/DELHI 09.09.2013 RCA3/13 Sh.Purshottam Lal Gupta Vs. Sh. Naresh Kumar & Ors.
11RCA3/13 Sh.Purshottam Lal Gupta Vs. Sh. Naresh Kumar & Ors.