Delhi District Court
Sh. Rajneesh Sharma vs Sh. Kishan Pal on 20 January, 2015
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In the Court of Anubhav Jain, Civil Judge05, Central District, Tis Hazari
Court, Delhi.
CS No. 541/14
Unique ID No. 02401C0075342001
1.Sh. Rajneesh Sharma S/o Late Sh. Hari Kishan Sharma R/o Village Burari, Delhi09 GPA of
2. Sh. Kali Charan S/o Sh. Govind Sahai R/o Village Burari, Delhi110009. .............. Plaintiff Versus
1. Sh. Kishan Pal S/o Sh. Phool Singh, R/o Village Burari, Delhi110009.
2. Sh. Nem Chand S/o Sh. Chander R/o Village Burari, Delhi110009 ..................Defendant Date of institution: 09.05.2001 Date of final decision: 27.01.2015 CS No. 541/14 Rajneesh Sharma Vs. Kishan Pal 2 Judgment
1. Present suit is filed by the plaintiff against the defendant for permanent injunction stating therein that plaintiff has purchased about 2500 Sq yards of land out of land bearing no. 97 Kila No. 18, Burari, Delhi from its registered owner Kali Charan on the basis of GPA, money receipt etc executed on 26.05.1992. It is further stated that the defendants are unsocial elements and on 08.05.2001 at about 7.00 PM both defendants along with some muscle men came to the suit property and started abusing the plaintiff and started throwing the goods of the plaintiff and because of interference of the neighbours, defendant left the suit property. It is further stated that plaintiff approached the Local Police for help but the concern police neither listen to the plaintiff nor registered any case against the defendant. It is further stated that plaintiff has left with no other efficacious remedy but to file present suit for permanent injunction to restrain the defendants from dispossessing the plaintiff forcefully and illegally from the possession of the suit property.
2. In reply thereof written statement was filed by the defendant no.1 wherein it is stated by the defendant that present suit is bad for nonjoinder of the necessary parties and the present suit is liable to be dismissed. It is further stated that present suit is barred under section 185 of the D.L.R Act, 1954 and plaint is liable to be rejected under order 7 rule 11 CPC. Beside denying other averment made by the plaintiff in his plaint it is stated that beside Sh. Manu, CS No. 541/14 Rajneesh Sharma Vs. Kishan Pal 3 Smt. Indira and Smt Chameli D/o Tek Chand were also recorded Bhumidhar to the extent of 2/3 share in the suit property and after death of Smt. Indira her rights devolve upon Sh. Banwari, Sh. Lakhmi, Sh. Mai Chand having equal share of 1/3 share of Smt. Indira. It is further stated that Smt. Chameli has executed a sale deed dated 29.03.01 in favour of Ram Kishan for sum of Rs. 21,000/ in respect of 1/3 share in the suit property. It is denied by answering the defendant that the suit property was purchased by the plaintiff from Kali Charan or that plaintiff is in possession of the suit property. It is further stated that plaintiff no. 1 or 2 never come into possession of the suit property at any point of time and it is original bhumidhar, their LRs who are in actual and physical possession of the suit property having 2/3 share therein except that of land measuring 600 sq Yards which were sold away to one Pushp Lata Gupta. Defendant further prayed for dismissal of the suit.
3. In reply thereof written statement was filed by the defendant no.2 wherein it is stated that answering defendant has no concern with the suit property. Answering defendant denied all averments made by plaintiff in his plaint and prayed for dismissal of the suit.
4. In reply to the written statement filed by the defendant, plaintiff filed the replication wherein he denied all the averment as made by the defendant in his WS and reiterated those facts made by him in his plaint.
CS No. 541/14 Rajneesh Sharma Vs. Kishan Pal 4
5. On the basis of pleading of the parties following issues were framed by the court vide order dated 04.02.2013:
i) Whether the plaintiff is entitled for relief of permanent injunction as prayed?
OPP
ii) Whether the suit is bad for misjoinder of necessary parties/recorded bhumidar of the suit land? OPD
iii) Whether plaintiff has filed the suit in collusion with defendant no. 2 hence suit is liable to be dismissed? OPD
iv) Whether the present court does not have territorial jurisdiction to entertain the present suit under section 185 of DLR Act, 1954?OPD
v) Whether the suit is liable to be dismissed under order 7 rule 11 CPC being without any cause of action? OPD
vi) Relief
6. In support of his case plaintiff no. 1 has filed an affidavit in evidence Ex. PW1/A and has examined Sh. Mukhtar Mahto, record Keeper, Office of Sub Registrar, Kashmere Gate as PW2,Sh. Jagdeep, Patwari,Tehsil Civil Lines as PW3, plaintiff no. 2 Sh. Kali Charan as PW4, Sh. Kishan Kumar, S/o Sh. Kali Charan as PW5 and further relied upon the documents i.e. original sale deed dated 19.02.1988 Ex. PW1/1, Original Registry Receipt Ex. PW1/2, Original General Power of Attorney dated 26.05.1992 Ex. PW1/3, Original Deed of Agreement dated 26.05.1992 Ex. PW1/4, Receipt in original Ex.
CS No. 541/14 Rajneesh Sharma Vs. Kishan Pal
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PW1/5, Will in original is Ex. PW1/6, Original Affidavit dated
26.05.1992 Ex. 1/7, Khatuni for 199394 Ex. PW1/8, Copy of complaints dated 08.03.2002 and 22.05.2002 Ex. PW1/9 & Ex. PW1/10, copy of the complaint to the Commissioner of Police dated 22.06.01 Ex. PW 1/11, Copy of the complaint to the Lt. Governor dated 25.06.2001 Ex. PW1/12, Copy of receipts issued from Irrigation Department (4 in number in original) Ex. PW/13 (Colly), Attested Copy of order of Tehsil, Civil Lines dated 16.09.01 Ex. PW1/14, site plan Ex. PW1/15, Copy of Khasra Girdawari for 2000 2001 Ex. PW1/16.
7. In his defence defendant no.1 has filed his affidavit in evidence Ex. DW1/A and relied upon the documents i.e certified copy of plaint suit bearing no. 175/10 title as, "Phool Singh & Ors. Vs. Pushp Lata Gupta & Ors." Ex. RW 1/1, Certified copy of Complaint filed before court of Ld. CMM, Delhi bearing no.492/1/06 Ex. RW1/2, copy of the Khatoni for the period 199394 Ex. RW 1/3, certified copy of Khasra Girdawari for the period 200405 and 2005 06 Ex RW1/4 and Ex PW1/5, copy of plaint suit bearing no. titled as Phool Singh Vs Pushp Lata Gupta Mark A, copy of complaint to police commissioner dated 01.04.2005 Mark B, copy of communication report dated 01.04.2005 Mark C, copy of order passed by Additional Collector, North dated 30.07.2007 Mark D, copy of order passed by Additional Collector, North dated 31.08.2007 Mark E, copy of order of second appeal passed by Second Commissioner, CS No. 541/14 Rajneesh Sharma Vs. Kishan Pal 6 Delhi dated 25.08.2011 Mark F, Certified copy of application under order 1 rule 10 CPC Ex DW2/3(colly), certified copy of reply to the application under order 1 rule 10 CPC Ex DW2/4.
8. I have heard the ld. counsel for the parties and perused the case file carefully. My Issue wise finding are as follows:
Issue No. 1.
9. Burden to prove present issue lies upon the plaintiff. By way of present suit plaintiff has sought permanent injunction that defendant may be restrained in interfering into the possession of the plaintiff or dispossessing the plaintiff forcibly and illegally from the possession of the suit property. In order to avail the relief as sought, plaintiff has to prove:
(a) That he is in lawful possession of the suit property
(b) That defendant is trying to dispossess the plaintiff from the suit property.
It is the case of plaintiff that one Manu was complete owner of the suit property measuring 4 bighas 16 biswa bearing Must. no.97, Kila No. 18, Village Burari, Delhi and he sold his rights in land to plaintiff no. 2 i.e. Kalicharan, who further sold 2500 sq. yds. of said land to the plaintiff no. 1 in year 1992 & since then plaintiff is in settled possession of 2500 sq. yds. Land. On the other hand it is stated by defendant no. 1 that plaintiff was never in possession of suit property & it is LR's of Sisters of Manu who are in possession of suit property.
CS No. 541/14 Rajneesh Sharma Vs. Kishan Pal 7
10. In order to prove his possession plaintiff has filed registered sale deed dated 19.02.98 executed by Manu in favour of Kalicharan with regard to the suit property and same was proved by Sh. Muktar Mahto, Record Keeper office of Sub Registrar, Kashmere Gate, who was examined as PW2. Plaintiff further placed on record GPA, deed of agreement, receipt, will all dated 26.05.1992 executed by the plaintiff no. 2 in favour of plaintiff no. 1. Further plaintiff no. 2 i.e. Kalicharan & his son enter into witness box & deposed that they have transferred possession of suit land to plaintiff.
11. Furthermore in order to prove reasonable apprehension that defendants are trying to dispossess the plaintiff forcefully and illegally from the suit property, plaintiff has filed copy complaints lodged by him before different authorities.
12. Plaintiff in order prove his case, has filed Khautani for the year 199394 along with few recipts issued by development department, Minor Irrigation Division & site plan. Khatoni filed by the plaintiff as Ex PW1/8 and proved by Jagdeep Singh, Patwari PW2 shows name of Chameli and Indira both D/o Sh. Tek Chand have equal share upto extent of 1/3 share each in total area of 4 bighas 16 biswa. Further this fact is admitted by plaintiff no. 1 in the affidavit in evidence filed by him that Manu alongwith his two sisters namely Indira and Chameli had been joint owner in possession of the suit land. It is further stated in the affidavit in evidence filed by the plaintiff that both the sisters have relinquished their right in the suit property in favour of plaintiff. As this court CS No. 541/14 Rajneesh Sharma Vs. Kishan Pal 8 does not have jurisdiction to venture into the question as to the title/ ownership of Manu or plaintiff no. 1 and 2 in the suit property, the only issue which has to be dealt with by this court is whether plaintiff no. 1 is in possession of suit property or not. Once it is admitted by the plaintiff in the affidavit in evidence filed by him that Indira and Chameli were joint owner in possession of the suit property alongwith Manu, it became incumbent for him to prove that both the sisters of Manu handover the possession of the suit property to Manu, before suit property was sold by Manu in favour of Kalicharan. However plaintiff has not filed any relinquishment deed or any document which can show that Indira and Chameli either relinquish their right or possession in favour of Manu.
13. Further as it is case of plaintiff no. 1 that he is in possession of suit property since year 1992, Khasra Girdawri for the year 20002001 filed by the plaintiff as Ex. PW1/16 does not bear the name of either of the plaintiff. Although it is settled principle of law that revenue records are not a proof of ownership/ title over the suit property, but in the present case as this court is dealing with question as to possession of the plaintiff over the suit property, Khasra Girdawri is the best document which can show possession of a person over the suit land. It is further no where stated by the plaintiff in his plaint that he has applied for the change of name in Khasra Girdawari but same was not done by the revenue authorities. It is further pertinent to state in here that during the cross examination it is admitted by the plaintiff that he is not applied for CS No. 541/14 Rajneesh Sharma Vs. Kishan Pal 9 change of name in the khasra girdawri. Relevant extract of the cross examination of the plaintiff is as under: ".......I am aware about the documents i.e. Khatoni and Khasra Girdawari maintained in respect of the agriculture lands in Delhi. I can also read and understand these documents if written in Hindi. The Ex PW1/16 filed by me pertains to the land in question where it is mentioned that Mannu Pisar was the owner upto the extent of share 1/3rd land and Chameli and Indira were also were owner upto the extent of 1/3rd land. In place of Indira after her death the names of her LRs Banwari, Lakhmi and Maichand are mentioned. The Girdwari pertains to the year 200001 showing the possession of these recorded owners. Vol. In Girdwari Ex PW1/16 only the ownership is shown and the possession is not shown in the Girdwari. In Khatuni Ex PW1/8 (colly) pertaining to the year 199394, the ownership of Manu Pisar, Smt. Indira and Smt. Chameli is shown, upto the extent of 1/3rd share each in Khasra bearing no. 97/18 measuring 4 bighas and 16 biswas situated in the revenue estate of the village Burari." It is correct that I have got issued the documents Ex PW1/8 (colly) and Ex PW1/16 from the concerned Revenue Department. I do not remember whether I had filed any application for mutation before concerned Revenue department. I have not filed any application for correction in the Khasra, Girdwari and Khatoni"
" I have no grievance from the Revenue Authority. Vol. but my grievance is that my name is not entered in the revenue record. it is correct that I have not given any application for mutation at any point of time. I have not given any application for recording my possession."
There is no explanation by the plaintiff as to why he has not applied for change of name in revenue records since he was in possession of suit property since CS No. 541/14 Rajneesh Sharma Vs. Kishan Pal 10 year 1992. Also it is not explained by the plaintiff that as to why name of kalicharan was not entered in revenue records i.e. in khasra girdawri.
14. It is also pertinent to state in here that it is case of plaintiff that Manu sold 4 bigha 16 biswa of land to one Kalicharan of which Kalicharan sold 2500sq yds. To the plaintiff. In the General Power of Attorney dated 26.05.1992 executed by Kalicharan in favour of plaintiff with regard to 2500 sq. yds. land, boundries of the suit land are shown as :
East - other land West - Road 16 ft.
North - other land South - Remaining land of Must. No. 97, Killa No. 18 However in the site plan of the suit property filed by the plaintiff boundries are shown as:
East other properties West other properties North Road South other property As such site plan filed by the plaintiff does not corroborate the General power of attorney filed by plaintiff to show his ownership/ possession.
CS No. 541/14 Rajneesh Sharma Vs. Kishan Pal 11
15. It is settled principle of law that that burden lies upon the plaintiff to prove his own case. In this regard it would be gailful for me to refer in Apex Court in Rangammal v. Kuppuswami, (2011) 12 SCC 220 "101.Burden of proof.--Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
Thus, the Evidence Act has clearly laid down that the burden of proving a fact always lies upon the person who asserts it. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of the other party .
From the facts stated above, plaintiff has failed to show that he is in possession of the suit property.
16. Further more it is case of plaintiff that defendants are trying to dispossess him from the suit land illegally. In this regard plaintiff has filed complaint dated 08.03.2002 to Incharge Police Post Burari, complaint dated 22.05.2002 to Incharge Police Post Burari, complaint dated 22.06.2001 to Commissioner of Police, Delhi and complaint dated 25.06.01 to Lt. Governor of Delhi. However CS No. 541/14 Rajneesh Sharma Vs. Kishan Pal 12 all these complaints are filed by the plaintiff subsequent to the filing of suit i.e. after 09.05.2001. As all these complaints are filed by the plaintiff subsequent to the filing of present suit the same cannot be relied upon on the point that plaintiff has apprehension that the defendant may dispossess him from the suit property prior to filing of present suit. No documents as such is being filed by the plaintiff which can show/ prove the averment made by the plaintiff in his plaint with regard to apprehension of dispossession.
17. Furthermore plaintiff has not examined a single independent witness so as to prove his possession over the suit property or of the incident dated 08.05.2001 as stated by him in his plaint.
In view of the law and facts discussed above plaintiff has failed to show either that he is in possession of the suit property or that he has any reasonable apprehension. In view of the same present issue is decided against the plaintiff and in favour of defendant.
ISSUE No. 2
18. Burden to prove the present issue lied upon the defendant. Present suit is filed by the plaintiff siplicitor for permanent injunction, that defendants may be restrained from interfering into his peaceful possession. It is stated by the defendant that in the present suit recorded bhumidar of the suit land are also one of the necessary party in the present suit and as such present suit is bad for mis joinder/non joinder of necessary parties. Present argument of the defendant CS No. 541/14 Rajneesh Sharma Vs. Kishan Pal 13 does not inspire the confidence of the court as the present suit is simiplictor for permanent injunction and LRs of the recorded Bhumidar are not necessary party for adjudication of the present case. In view of the same present issue is decided in favour of the plaintiff against the defendant. ISSUE NO. 3
19. Burden to prove present issue lies upon the defendant however defendant by way of evidence or during the course of his arguments has failed to show that present suit is filed by the plaintiff in collusion with defendant no. 2. In view of same present issue is decided against the defendant and in favour of plaintiff.
ISSUE NO. 4
20. Burden to prove present issue lies upon the defendant. Present suit is filed by the plaintiff that his defendant may be restrained from interfering into his peaceful possession in the suit property. It is settled principle of law that jurisdiction of civil court is barred in cases wherein plaintiff seeks declaration as to his bhumidari rights in the suit property. Present suit simplicitor for being permanent injunction, jurisdiction of civil court is not barred. In view of the same present issue is decided in favour of plaintiff and against the defendant. ISSUE NO. 5
21. Burden to prove present issue lies upon the defendant. It is settled principle of law that while dealing with clauses under Order 7 Rule 11 CPC averments CS No. 541/14 Rajneesh Sharma Vs. Kishan Pal 14 made in the plaint can be looked into. It would be relevant to state in here observation made in Usha Gupta v. Subash Chand Tyagi, 2011 SCC OnLine Del 5050 : (2012) 127 DRJ 27 : 2012 AIR CC 359 at page 28
4. It may be worthwhile to mention here that while considering an application under Order 7 Rule 11 CPC, the Court has to look at the averments made has the plaint by taking the same as correct on its face value as also the documents filed in support thereof. Neither defence of the defendant nor averments made in the application have to be given any weightage. Plaint has to be read as a whole together with the documents filed by the plaintiff. In Sri Kishan v. Shri Ram Kishan, 159 (2009) DLT 470 : 2009 (110) DRJ 323, a Single Judge of this Court observed thus, "Order 7 Rule 11 of the Civil Procedure Code contemplates that where the suit appears from the averments made in the plaint to be barred by any law, then the plaint can be rejected. The legal position is that to decide whether a plaint is laible to be rejected under Order 7 Rule 11, averments in the plaint have to be read without looking at the defence and thereupon it has to be seen whether on the averments made in the plaint under Order 7 Rule 11 of the Code of Civil Procedure gets attracted. For rejection of the plaint under Order 7 Rule 11 the averments in the plaint should be unequivocal, categorical and specific leading to only conclusion that the plaint is barred......"
Defendant is no where during the course of arguments has stated as to why the plaint is liable to be rejected under order 7 rule 11 CPC. Further from the CS No. 541/14 Rajneesh Sharma Vs. Kishan Pal 15 persual of the plaint as well as documents filed by plaintiff, present suit cannot be said to fall within the ambit of Order 7 rule 11 CPC. In view of the same present issue is decided against the defendant and in favour of the plaintiff. Relief In view of the observation made above especially in issue no. 1 suit of the plaintiff is dismissed. In such circumstances, there is no order as to cost. Decree sheet be prepared accordingly.
File be consigned to record room after due compliance. Pronounced in open court on 27.01.2015 ( Anubhav Jain ) Civil Judge05, Central District Tis Hazari Courts,Delhi Present judgment is consist of 15 pages and each page is signed by me.
CS No. 541/14 Rajneesh Sharma Vs. Kishan Pal