Delhi District Court
Sh. Jaspal Singh vs Sh.Rakesh Yadav on 26 February, 2021
CS No. 112/2016 Jaspal Singh v. Rakesh Yadav & ors. DOD : 26.02.2021
: IN THE COURT OF :
DR. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Civil Suit no. 112/2016 (15241/2016)
In the matter of:
Sh. Jaspal Singh
S/o. Sh.Ajit Singh
R/o242, Village Nangli Sakhrawati
Delhi
.....Plaintiff
Versus
1. Sh.Rakesh Yadav
S/o Sh.Kanwal Singh Yadav
R/o95, Amba Enclave
Sector9, Rohini, Delhi
2. Sh.Krishan
son of Sh.Paras Ram
R/oVillage & POJharoda Kalan
New Delhi
....Defendants
Page nos. 1
CS No. 112/2016 Jaspal Singh v. Rakesh Yadav & ors. DOD : 26.02.2021
Date of Institution of Suit : 27.05.2015
Date of reserving judgment : 27.01.2021
Date of pronouncement : 26.02.2021
Appearance:
(i) Sh.Sunil Chauhan, Advocate, Ld. Counsel for the plaintiff.
(ii) Sh.B.K.Sood, Advocate Ld. Counsel for the defendant no.1
(iii) Defendant No.2 ex parte.
SUIT FOR POSSESSION UNDER SECTION 6 OF THE SPECIFIC
RELIEF ACT
J U D G M E N T:
1. This is a suit for possession filed by the plaitniff under Section 6 of the Specific Relief Act. Brief facts relevant as emanating from the plaint are as under:
i) Plaintiff is the owner of the residential plot bearing No. 83, measuring 120 sq.yds situated within the revenue estate of village Pochanpur, Delhi (hereinafter referred to as the suit property) having purchased the same through sale documents, GPA, agreement to sell etc. in the year 2001 which were executed by the erstwhile owner in possession of the suit property.
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ii) It is averred that plaintiff is in actual physical possession of the suit property which was purchased by the plaintiff for consideration in the sum of ₹ 1 lakh and, thereafter, plaintiff has raised construction of a boundary wall around the suit property and had also constructed a room as detailed in the site plan. The suit property was originally allotted to one Shri Om Prakash s/o Sh.Chandgi Ram resident of village Pochanpur under the 20 point programme in the year 1987 in terms of the certificate of allotment issued by Sh. Ram Chander Pradhan by Gram Panchayat of village Pochanpur for ₹ 60 as the lease money duly acknowledged through a receipt in LR form 37. The original allottee remained in possession of the suit property till the time the transfer of the suit property to the predecessorininterest of the plaintiff, namely, Sh.Om Prakash through documents of conveyance dated 23rd of June 1990 for a sale consideration of ₹ 70,000. The said Om Prakash remained in actual physical possession of the suit property since 23rd of June 1990 till he transferred the same to the plaintiff on 5 March 2001.
iii) The plaintiff had been enjoying the actual physical possession of the suit property since 5th March 2001 till December 2014 when the defendants illegally and forcibly dispossessed the plaintiff from the suit property after removing the locks fixed on the gate of the suit property. The defendants have no right, title or interest in the suit proeprty in as Page nos. 3 CS No. 112/2016 Jaspal Singh v. Rakesh Yadav & ors. DOD : 26.02.2021 much as defendants have illegally occupied the suit property after removing the lock of the main gate as well as the lock fixed on the door of the rooms built in the suit property. The defendants thereafter, removed all the household goods of the plaintiff which were lying in the room and thus plaintiff has been illegally and forcibly dispossessed from the suit property.
iv) The fact of illegal dispossession of plaintiff from the suit property came to the knowledge of the plaintiff when a neighbour informed him on 5th of December 2014 that name of defendants was painted on the gate of the suit property. The plaintiff, immediately, visited the suit property and came to know that defendants had illegally and forcibly occupied the suit property after breaking open the locks put on the suit property by the plaintiff. The plaintiff had immediately approached the police and filed a complaint to PS Dwarka on 6 th of December 2014. However, despite the police complaint made by the plaintiff, no action was taken against the defendants by the police authorities. The plaintiff in fact came to know that the defendants took illegal possession of the suit property with the active connivance and help of local police who had assured the defendants that no action will be taken against them. The defendants have no right, title or interest in the suit property and they are neither the owner nor have any other right in the suit property.
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v) It is submitted that defendants are habitual land grabbers and are always looking for the vacant plots in order to occupy them. The plaintiff since the day of his illegal and forcible dispossession from the suit property on 5th December 2014 has been running from pillar to post but to no effect. The plaintiff has not only filed complaints before the local police but he had requested the defendants to remove the locks illegally affixed over the doors of the suit property and to hand over the vacant and peaceful possession of the suit property to him, however, the defendants have not paid any heed to the request of the plaintiff. Hence the present suit has been filed.
2. After filing the suit summons for settlement of issues was issued and defendants were served with the summons. Defendant no.1 has filed a written statement, interalia, submitting that suit for possession under section 6 of the Specific Relief Act (in short, the Act) filed on behalf of the plaintiff is not maintainable as the plaintiff was never in possession of the suit property. Plaintiff did neither have any title nor has ever been in possession of the suit property. The plaintiff is not entitled to any relief as claimed in the suit as the sale documents are forged, fabricated and manipulated by plaintiff. The original documents relating to the suit property are in possession of the defendant no. 1.
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3. It is further averred that defendant no. 1 became the owner of the suit property by virtue of sale documents executed and registered in his favour by erstwhile owner, who had registered sale documents executed in his favour from the previous owner. The said previous owner also had the original registered sale documents in his favour duly executed by the original allottee of the suit property. Defendant no.1 came in possession of the suit property in the year 2005, thereafter, defendant has raised boundary wall and a room in the suit property in the year 2006 and the defendant no. 1 has been in possession of the suit property since 2006 without any disturbance from anyone. The roads in the said area, where suit property is situated are yet to be metalled, however, electricity supply was sanctioned in the said colony in January 2015. The suit has not been valued properly for the purposes of court fees and jurisdiction and plaintiff is liable to pay ad valorem court fees on the value of suit property being in not possession of the same.
4. The defendant No.1 is lawful owner in possession of the suit property being a bonafide purchaser of the same since the year 2005. The suit property was allotted to one Sh.Om Prakash, who sold the suit property to Mr Nitin Mittal vide registered WILL, GPA, agreement to sell dated 18th of October 1994 for sale consideration of ₹ 30,000. The said Nitin Mittal transferred the suit property to one Page nos. 6 CS No. 112/2016 Jaspal Singh v. Rakesh Yadav & ors. DOD : 26.02.2021 Rajesh Khattar for a sale consideration of ₹ 35,000 through agreement to sell, GPA and WILL dated 10th of September 1996. Defendant no. 1 purchased the suit property from Sh.Rajesh Khattar through registered WILL, GPA, agreement to sell dated 7 th of April 2005 for a consideration of ₹ 80,000.
5. It is further averred that the defendant no. 1 applied for electricity connection with BSES in December 2014, which was activated on 27th of January 2015. The employees of the BSES inspected the suit property and issued fitness certificate in the name of defendant no. 1. The suit property was allotted to Sh. Om Prakash under 20 point programme in the year 1987 and upon the complaint of plaintiff, defendant no. 1 was called by the police to ascertain the facts and defendant no. 1 clarified the entire position along with supporting documents. The police complaint was against one Mr Vijay, who is not even a party in the present suit. The allegations made by the plaintiff are false and manipulated and have been made only with a view to file the present suit.
6. Despite service, defendant no.2 failed to appear and right to file written statement closed vide order dated 21.09.2015 thereafter, then he was proceeded exparte in terms of order dated 19.05.2016.
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7. Replication has been filed to the written statement of defendant no.1 wherein the contents of the plaints have been reiterated and the allegations made in the written statement are denied.
8. From the pleading of the parties, vide order dated 05.10.2015, following issues are framed:
1. Whether plaintiff has been dispossessed of the suit property? OPP
2. Relief.
9. Thereafter, the plaintiff led evidence through their witnesses.
10. Plaintiff Jaspal Singh has examined himself as PW1 and has reiterated the contents of the plaint. He has relied upon following documents:
i). The original General Power of Attorney dated 05.03.2001 executed by Mr. Puran Chand is Ex.PW1/1.
ii). The original Agreement to Sell dated 05.03.2001 executed by Mr.Puran Chand is Ex.PW1/2.
iii). The original affidavit of Mr. Puran Chand dated 05.03.2001 is Ex.PW1/3.
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iv). The original receipt dated 05.03.2001 executed by Mr. Puran Chand is Ex.PW1/4.
v). The original possession letter dated 05.03.2001 executed by Mr. Puran Chand is Ex.PW1/5.
vi). The original Will dated 05.03.2001 executed by Mr.Puran Chand is Ex.PW1/6,
vii). The allotment certificate dated 18.11.1987 is Ex.PW1/7 (date of this document has been mentioned as 18.11.1983 in the affidavit Ex.PW1/A),
viii). The original general power of attorney dated 23.06.1999 executed by Mr.Om Parkash S/o Mr. Chandgi Ram is Ex.PW1/8,
ix). The agreement to sell dated 23.06.1999 executed by Mr. Om Parkash S/o Mr.Chandgi Ram is Ex.PW1/9,
x). The Receipt dated 23.06.1990 BY Mr. Om Parkash S/o Mr.Chandgi Ram is Ex.PW1/10,
xi). The site plan is Ex.PW1/11 (The documents Ex. PW1/4 to Ex. PW1/11 are objected to for the mode of proof).
xii). The copy of complaint dated 07.12.2014 bearing the original stamp of PS Dwarka Sector 23 in acknowledgment of receipt is Ex.PW1/12.
11. Sh. Yogesh has been examined has PW2, however he expired before being crossexamined. Sh. Rajesh Kumar, has been Page nos. 9 CS No. 112/2016 Jaspal Singh v. Rakesh Yadav & ors. DOD : 26.02.2021 examined as PW3 and Sh. Balwan has been examined as PW4, who has deposed on the lines of the plaintiff/PW1. Sh. Omvir Singh, Panchayat Secretary has been examined as PW5, who has proved on record the LR Form no. 37, which is Ex. PW5/A1. Ct. Parminder has been examined as PW6 who has proved on record the DD No. 26B is Ex. PW6/A. Sh. Dharmender Kumar, Draftsman has been examined as PW7, who has proved on record the site plan prepared by him. Thereafter, plaintiff's evidence was closed and matter was listed for recording of defendants evidence.
12. The defendant led evidence and DW1 testified through his evidence affidavit Ex. DW1/A, and reiterated the contents of the written statement which are not reproduced for the sake of brevity and will be dealt with at the time of recording the findings on the issues so framed. Defendant no. 1 has relied on the following documents :
i) Agreement to sell dated 18.10.1994 is Ex. DW1/1,
ii) Power of attorney dated 18.10.1994 is Ex. DW1/2,
iii) Copy of the registered Will dated 18.10.1994 is Ex. DW1/3,
iv) Agreement to sell dated 10.09.1996 is Ex. DW1/4,
v) Receipt dated 10.09.1996 is Ex. DW1/5,
vi) Copy of registered power of attorney is Ex. DW1/6,
vii) Copy of the registered will dated 10.09.1996 is Ex. DW1/7,
viii) Copy of agreement to sell dated 07.04.2005 is Ex. DW1/8, Page nos. 10 CS No. 112/2016 Jaspal Singh v. Rakesh Yadav & ors. DOD : 26.02.2021
ix) Affidavit dated 07.04.2005 is Ex. DW1/9,
x) Copy of the registered POA dated 07.04.2005 is Ex. DW1/10,
xi) Copy of receipt dated 07.04.2005 is Ex. DW1/11
xii) Copy of the registered will dated 07.04.2005 is Ex. DW1/12,
xiii) Copy of possession letter dated 07.04.2005 is Ex. DW1/13,
xiv) Copy of the application to the BSES is Mark A,
xv) Copies of the electricity bills from February to May 2015 is Ex.
DW1/14 to Ex. DW1/17,
xvi) Copy of inspection report is Ex. DW1/18,
13. Sh. Ombir Singh Panchayat Secretary has been examined as DW2 who has proved on record the LR form No. 37. Sh. Raj Kumar from the Office of Sub Registrar , Kapashera has been examined as DW3 who has proved on record the Registered Will dated 07.04.2005. Sh. Vijay Kumar from the Office of Sub Registrar, Basai Darapur, has been examined as DW4 who has proved on record the Registered Will dated 10.09.1996. Sh. Rajeev Ranjan from the Office of BSES has been examined as DW5 who has proved on record the application for new electricity connection along with other documents. Sh. Krishan Dahiya has been examined as DW6 who has deposed on the lines of DW1. Thereafter, the defendants evidence was closed.
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14. I have heard the submissions of learned Counsel for the plaintiff and defendant and with their assistance have also gone through the record.
My issue wise findings are as under : Issue no. 1
15. The onus to prove this issue is on the plaintiff. It may be relevant to note down here that a proceeding under Section 6 of the Act, is intended to be a summary proceeding the object of which is to afford an immediate remedy to an aggrieved party to reclaim possession of which he may have been unjustly denied by an illegal act of dispossession. Questions of title or better rights of possession does not arise for adjudication in a suit under Section 6 of the Act where the only issue required to be decided is as to whether the plaintiff was in possession at any time six months prior to the date of filing of the suit. The legislative concern underlying Section 6 of the Act is to provide a quick remedy in cases of illegal dispossession so as to discourage litigants from seeking remedies outside the arena of law. The same is evident from the provisions of Section 6(3) which bars the remedy of an appeal or even a review against a decree passed in such a suit.
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16. It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner and if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.
17. The aforesaid view was approved by Hon'ble Supreme Court of India in Nair Service Society v. Alexander AIR 1968 SC 1165. It was observed that the plaintiff (therein) being in peaceful possession was entitled to remain in possession and only the State could evict him. It was further said that the action of the Society was a violent invasion over the possession of the plaintiff. It was further observed that the law as it stands in India the plaintiff could maintain a possessor suit under the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised.
18. Though not quoted, reliance is placed upon judgment passed in C.R.P. No.176/2016 by Hon'ble High Court of Delhi titled as Page nos. 13 CS No. 112/2016 Jaspal Singh v. Rakesh Yadav & ors. DOD : 26.02.2021 Ravinder Chaudhary vs Kishan Kumar Pauchauri & Ors, wherein in para no. 11 & 12 it has been observed as under :
"11. Supreme Court, in East India Hotels Ltd. Vs. Syndicate Bank 1992 Supp 2 SCC 29 held that the purpose behind Section 6 is to restrain a person from using force to dispossess a person without his consent, otherwise than in due course of law.
12. Notice in this regard may also be taken of Articles 64 & 65 in PartV titled „Suits Relating to Immovable Property ‟ of the Schedule to the Limitation Act, 1963. Article 64 provides for a suit for recovery of possession of immovable property based on previous possession and not on title, when the plaintiff, while in possession of the property, has been dispossessed. Article 65 provides for a suit for recovery of possession of immovable property or any interest therein based on title. For both classes of suits, limitation of 12 years is provided commencing, for Article 64, from the date of dispossession and for Article 65, from the date when possession of the defendant becomes adverse to the plaintiff. The same also indicates that a suit for recovery of possession of immovable property can be filed either merely on the basis of prior possession de hors title or on the basis of title. Though Article 64 provides for limitation of 12 years but Section 6 supra, for a suit thereunder, provides for a limitation of six months only. A suit for recovery of immovable property, based on previous possession can thus be filed either under Section 6, within six months from date of dispossession or under Article 64 supra, within twelve years from date of dispossession. While against a decree in a suit Page nos. 14 CS No. 112/2016 Jaspal Singh v. Rakesh Yadav & ors. DOD : 26.02.2021 for recovery of possession of immovable property based on previous possession filed otherwise, an appeal under Section 96 of the CPC would lie but against a decree in a suit for recovery of possession of immovable property based on previous possession, filed under Section 6, the remedy of appeal is barred and only a Revision Petition lies. The reason therefor is that the scope of enquiry in a suit under Section 6 is limited to, whether the plaintiff was formerly in possession and whether he was dispossessed without his consent, otherwise than in due course of law within six months immediately preceding the date of institution of the suit. The Court in such a suit does not try the question of title. Reference in this regard can be made to Lallu Yeshwant Singh Vs. Rao Jagdish Singh AIR 1968 SC 620 and Somnath Burman Vs. S.P. Raju AIR 1970 SC 846. The procedure under Section 6, in S.R. Ejaz Vs. T.N. Handloom Weavers' Cooperative Society Ltd. (2002) 3 SCC 137, was held to be summary, as aforesaid, to discourage people from adopting any foul means to dispossess a person. In State of U.P. Vs. Maharaja Dharmender Prasad Singh (1989) 2 SCC 505, Krishna Ram Mahale Vs. Shobha Venkat Rao (1989) 4 SCC 131 and Muddanna Vs. Panthanagere Group Panchayat, Kengeri Hobli (2003) 10 SCC 349, it has been held that where a person is in settled possession of property, even on the assumption that he had no right to remain in the property, he cannot be dispossessed by the owner of the property except by due process of law."
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19. With the abovesaid principles of law I would advert to the facts of the present case. Plaintiff appeared as PW1 and testified that he has purchased the suit property in terms of the sale documents. However, as stated above, the question of title is not to be gone into the suit under Section 6 of the Act, as per mandate of law laid down by the superior courts.
20. It may be noted that plaintiff to prove his possession, has reiterated the facts of plaint, however, during crossexamination, PW testified that he does not know the present residential address of Mr. Krishan earlier, he used to live in Palam Village in the year 2001 and he did not know as to where Mr. Krishan is living after the year 2001. He further testified that he does not know Mr. Vijay, however, he had contacted Mr. Vijay on the telephone number, which was mentioned on the suit property on 06.12.2014 but he is not aware about his residence. He testified that he did not know Mr. Rakesh Yadav (defendant no. 1). He had not mentioned name of Mr.Rakesh Yadav in his complaint dated 07.12.2014. He deposed that Mr. Balwan Singh had informed him on 05.12.2014 that names of Mr. Vijay and Mr. Krishan were mentioned on the suit property. He admitted that Mr. Balwan Singh (PW4) is not resident of the area where the suit property is situated. He further testified that Mr. Balwan Singh (PW4) is doing a Page nos. 16 CS No. 112/2016 Jaspal Singh v. Rakesh Yadav & ors. DOD : 26.02.2021 private job for last about 78 years but but prior to that Mr. Balwan Singh (PW4) was engaged in agricultural work.
21. He deposed that the suit property is having road on its North and South direction. He testified that there is no such police complaints against Mr. Rakesh Yadav for occupying plots in the area/colony where the suit property is situated but he was not aware whether Mr. Rakesh Yadav has occupied any other plot in the area/colony where the suit property is situated.
22. PW1 admitted that Mr. Puran Chand is resident of Azad Pur. He admitted that roads are not constructed in the area/colony in which the suit property is situated. He admitted that Mr. Om Parkash is the original allottee of the suit property in the year 1987. He was not aware whether there was any boundary wall or any room on the suit property when Mr. Om Parkash had sold the suit property.
23. PW1 further testified that he never met Mr. Rakesh Yadav or that he never visited residence of Mr. Rakesh Yadav. He admitted that the averments made in para 10 of his affidavit Ex.PW1/A from point A to A are wrong. To a specific question put to him, he deposed that plot in question (the suit property) belongs to him, therefore, there Page nos. 17 CS No. 112/2016 Jaspal Singh v. Rakesh Yadav & ors. DOD : 26.02.2021 was no occasion for Mr. Rakesh Yadav to offer to sell the suit property.
24. PW1 was not aware about the name of person with whom he talked on telephone i.e. the number which was mentioned on the suit property. He testified that he met Mr. Vijay as well as Mr. Kishan at the suit property after he contacted them on telephone. He had not lodged any complaint with higher police officers against the police officials who helped defendant no.1. He can identify the signatures of Sh. Ram Chander Pardhan and the original certificate dated 18.11.1987 was shown to the witness and after seeing signatures at point X, he submitted that these are not the signatures of Sh. Ram Chander Pardhan. He testified that he after making inquiries came to know that Sh. Krishan alongwith Sh. Rakesh Yadav had forcibly occupied the suit property. He also came to know from the inquiries that Sh. Vijay was not involved.
25. PW1 testified that original documents including the original certificate were given to him on the day when he had passed on the consideration amount and documents with respect to the suit property.
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26. The defendant no. 1 to prove his possession over the suit property relied upon the contents of written statement as detailed in his evidence affidavit Ex. DW1/A. During crossexamination he testified that the suit property belonged to him and the same is situated in Village Pochanpur. The original allottee of the suit property was Sh.Om Prakash whom he had not seen. The suit property in question was purchased by him from Sh. Rajesh Khattar in the year 2005 through sale documents i.e. General Power of Attorney, Agreement to Sell, Will etc. He testified that at the time of execution of documents witnesses Sh. K.K. Dahiya and Sh. Mehtab along with the vendor Sh. Rajesh Khattar were present and the sale consideration of the suit property in the sum of Rs. 80,000/ was paid by him in cash. He further testified that at the time of purchasing the suit property he had verified that the documents were in favour of Sh.Rajesh Khattar and all the documents were also verified from the Panchayat office. He had seen the plot at site which was lying vacant and there was no boundary wall constructed at site. The suit property falls in khasra no. 6/9 and he was not in a position to tell the area of khasra no. 6/9 or its boundaries.
27. During the course of arguments, ld. counsel for the plaintiff has raised contentions that the plaintiff was illegally dispossessed within six months from the date of filing of the suit i.e. in Page nos. 19 CS No. 112/2016 Jaspal Singh v. Rakesh Yadav & ors. DOD : 26.02.2021 December 2014 and the factum of his illegal dispossession is duly corroborated by the defence of the defendant that defendant no. 1 has purchased the suit property in the year 2005 and till 2015, he has never taken any electricity connection in the suit property. Therefore, the suit deserves to be decreed.
28. Whereas, the contention of the defendant no. 1 is that there are number of contradictions in the pleadings and evidence of the plaintiff which belies the case of the plaintiff in as much as the general allegations has been levelled in the pleadings as well as in the complaint made to the police and no specific name of any person including defendant no. 1 has been named who had illegally dispossessed plaintiff from the suit property, yet while leading evidence the plaintiff has specifically named defendant no. 1 as a person, who has illegally dispossessed the plaintiff from the suit property. The plaintiff is also not sure about the location of the suit property at the site and there are material contradictions in the exact location and situation of the suit property at the site in the pleadings and site plan, therefore, the plaintiff failed to prove his case and suit deserves to be dismissed.
29. To prove that plaintiff happened to be in possession of the suit property, the document relied upon by the plaintiff is possession Page nos. 20 CS No. 112/2016 Jaspal Singh v. Rakesh Yadav & ors. DOD : 26.02.2021 letter Ex.PW1/5 through which Sh.Puran Chand has handed over the possession of the suit property to plaintiff in presence of two witnesses, namely, Sh.Krishan Kumar and Sh.Yogesh Kumar on 05.03.2001. PW1 testified that after purchase of the suit property, he raised boundary wall over the suit property and also built up a room inside therein and remained in possession till December 2014 when he was illegally and forcibly dispossessed by defendants after breaking open the locks put up by the plaintiff. This fact came to his knowledge on 05.12.2004 when he was informed by PW4 Sh.Balwan Singh. The plaintiff to prove the factum of possession over the suit property has led evidence of PW2, PW3 and PW4 also, however, PW2, who happened to be a attesting witness to the possession letter, Ex.PW1/5 was examined in chief but, thereafter, he expired and his crossexamination could not be recorded.
30. PW3 Sh.Rajesh Kumar has testified that his father and brother had been allotted plot nos. 53 and 54 under the scheme of rehabilitation under 20 point programme which are situated at a distance of about 200250 sq.ft. from the suit property. Plaintiff had raised construction of the boundary wall and a room over the suit property and plaintiff was owner in possession of the suit property. PW3 helped the plaintiff as PW3 had arranged water tank for raising construction over the suit property. In crossexamination, he admitted Page nos. 21 CS No. 112/2016 Jaspal Singh v. Rakesh Yadav & ors. DOD : 26.02.2021 that he has not brought any documentary evidence regarding allotment of plot nos.53 and 54 in the name of his father and brother which allegedly situated in the vicinity of the suit property. Plaintiff perhaps raised the boundary wall and a room in the year 2001. To prove the factum of possession of the suit property, PW3 supported the case of the plaintiff.
31. PW4 is the person, who has informed the plaintiff on 05.12.2014 regarding the name of defendants painted on the gate of the suit property and accordingly plaintiff informed the local police. However, in crossexamination he did not remember as to whose name was written on the main gate of the suit property and he did not call the plaintiff from the suit property itself.
32. So far as the testimony of PW3 is concerned, although he has testified that he has seen the plaintiff in possession of the suit property and he helped the plaintiff in raising construction of the suit property yet he failed to prove on record that his father and brother are having plots in the vicinity of suit property. As far as testimony of PW 4 is concerned, PW4 is the person, who has informed the plaintiff regarding his illegal dispossession from the suit property, however, he has not deposed in respect of any construction raised over the suit property by plaintiff in his presence.
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33. So far as the testimony of PW1 is concerned, plaintiff in the complaint made to the police i.e. Ex.PW1/12 has made a complaint regarding illegal dispossession of plaintiff by defendant/ Sh.Krishan and Sh.Vijay as on the outer gate of the suit property, name of Sh.Krishan and Sh.Vijay was written and a mobile No.9999071771 was written in between the name of Sh.Krishan and Sh.Vijay. However, in plaint, plaintiff has admittedly pleaded in para 5 that defendants i.e. Sh.Rakesh Yadav and Sh.Krishan have illegally dispossessed plaintiff from the suit property. Plaintiff in para 9 of his affidavit of evidence Ex.PW1/A has stated that he was informed by his neighbour on 15.12.2014 (inadvertently it is written 15.12.2014 otherwise it is 05.12.2014 in other pleadings) that defendants have illegally dispossessed plaintiff from suit property. However, plaintiff in his crossexamination specifically disclosed name of that neighbour as that Sh.Balwan (PW4) who has informed him on 05.12.2014 that defendants had illegally dispossessed plaintiff from the suit property, however, PW1 at the same time has admitted that PW4, is not resident of the area where the suit property is situated.
34. As far as identity of defendant No.1 is concerned, plaintiff in para 5 of the plaint alleged that he came to know the name of defendant no.1/Sh. Rakesh Yadav, as the person, who has illegally occupied the suit property on 05.12.2014. However, in cross Page nos. 23 CS No. 112/2016 Jaspal Singh v. Rakesh Yadav & ors. DOD : 26.02.2021 examination, PW1 admitted that he has not mentioned the name of defendant No.1 in his complaint dated 07.12.2014 as Mr.Vijay has not disclosed the name of Sh. Rakesh Yadav. PW1, thereafter, in cross examination further admitted that he has mentioned in his plaint that he came to know about the name of defendant no.1 on 05.12.2014.
35. It may be noted that plaintiff has tried to prove that plaintiff happened to be in possession of the suit property in terms of the possession letter Ex.PW1/5 in the presence of two attesting witnesses, namely, Sh.Krishan and Sh.Yogesh. However, Sh. Yogesh died and Sh. Krishan has not been summoned to prove the factum of the possession of the plaintiff over the suit property since 05.03.2001. Testimonies of PW3 and PW4 although supports the case of the plaintiff that plaintiff is in possession of the suit property as pleaded by the plaintiff, yet the testimonies of PW3 and PW4 did not inspire confidence so as to conclude that plaintiff is in possession of the suit property as claimed by PW1, PW3 and PW4 in as much as there is no documentary evidence on record to support the oral deposition as made by PWs including the plaintiff.
36. A conjoint reading of the testimonies of PW1, PW2 and PW3 lead to conclude that except the oral statements of plaintiff, PW3 & PW4, that plaintiff happened to be in possession of the suit Page nos. 24 CS No. 112/2016 Jaspal Singh v. Rakesh Yadav & ors. DOD : 26.02.2021 property in terms of possession letter Ex.PW1/5, there is no other evidence on record. So far as the contention of the plaintiff that plaintiff had been in possession of the suit property since 2001, there is no document on record to substantiate the claim of the plaintiff that he happened to be in possession of the suit property since 05.03.2001 in as much as the plaintiff has neither examined the attesting witness Sh.Krishan nor there is evidence of another attesting witness Sh.Yogesh on record to prove that plaintiff was handed over possession by the said Puran Chand as he expired before recording of his cross examination.
37. Now coming to the case of the defendant no. 1 to show that he was in possession of the suit property since the year 2005. The defendant no. 1 claimed to have been in possession of the same through possession letter dated 07.04.2005, Ex.DW1/13.
38. Defendant no.1 appeared as DW1 and testified that he happened to be in possession of the suit property through possession letter Ex.DW1/13 and DW1 has raised construction of the boundary wall and one room in the suit property in the year 2006 and since then he is in possession thereof. Plaintiff was never in possession of the suit property at any point of time till December, 2014, in as much as DW1 got installed an electricity meter in the suit property in December, 2014 which was activated on 27.01.2015 in terms of Page nos. 25 CS No. 112/2016 Jaspal Singh v. Rakesh Yadav & ors. DOD : 26.02.2021 Ex.DW1/14 to Ex. DW1/18. Although the defendant has not led any documentary evidence that as and when he raised construction over the suit property yet defendant no.1 has been found in possession of the suit property by the officers of BSES in terms of inspection report Ex.DW1/18. Although, the defendant No.1 in his crossexamination could not disclose the measurement of the room constructed at the suit property despite being a civil contractor and further defendant no.1 failed to disclose the name of owner of plot Nos.82 and 84 situated in the vicinity of the suit property yet these contradictions are not such material contradictions sufficient to discredit the testimony of DW1 and term him as a witness unworthy of credit.
39. It may also be noted that it is the contention of the counsel for the plaintiff that the electricity connection has been got installed by defendant no.1 after the complaint made by the plaintiff to the police on 07.12.2014 in terms of Ex.PW1/12, therefore, the defendant no. 1 happened to be in possession of the suit property since December 2014, after illegally dispossessing the plaintiff. This contention appears to be attractive but the same is fallacious in as much as it is the case of the defendant No.1 that there was no supply of electricity in the area, in the vicinity of which the suit property is situated prior to 2014 and as and when the supply of electricity was commenced by the BSES in the area, defendant no. 1 got installed the electricity Page nos. 26 CS No. 112/2016 Jaspal Singh v. Rakesh Yadav & ors. DOD : 26.02.2021 connection in the suit property. It may be relevant to mention here that no suggestion has been given to PW1 in this regard that there was supply or transmission of electricity by the BSES in the area in the vicinity of which suit property is situated prior to 2014. Furthermore, DW5 Sh.Rajeev Ranjan was crossexamined and he admitted that the address of the consumer was ascertained where the electricity was to be provided. DW5 further testified that he cannot say as to whether there was any electricity connection at the address where the present electricity connection was sanctioned prior to 2015. In addition to it, no suggestion has been given to DW5 that there was no transmission and supply of electricity by the BSES in the area prior to 2014. Apart from that DW6 Sh.Krishan Dahiya has deposed that suit property was possessed by the plaintiff through Sh.Rajesh Khattar and possession was given in his presence by Sh. Rajersh Khattar to defendant no. 1.
40. From the conjoint testimonies of DW1, DW5 and DW6, it can at least be inferred that defendant no.1 was in possession of the suit property before December 2014 and defendant no. 1 has got installed an electricity connection in the suit property in his name which fact further fortifies the claim of the defendant no.1 that he happened to be in possession of the suit property.
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41. From the above discussion, it can be safely concluded that plaintiff has led no evidence from which this court shall presume that plaintiff was in possession of the suit property since 2001 as pleaded and tried to be proved by the plaintiff and he was dispossessed in December 2014 by defendants. Therefore, issue no. 1 is decided against the plaintiff and in favour of the defendants.
Relief:
42. In view of the findings on issues aforesaid, I am of the considered opinion that plaintiff has not been able to establish its case against defendants. The suit filed by the plaitniff is accordingly dismissed.
Decree sheet be prepared accordingly.
File be consigned to record room.
Announced on
DR Digitally signed
by DR VIJAY
26th Day of February, 2021
VIJAY KUMAR
DAHIYA
KUMAR Date:
2021.03.16
DAHIYA 17:05:53 +0530
(V.K. DAHIYA)
ADDL.DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
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