Delhi District Court
Shri Jagat Singh vs Samey Singh on 31 August, 2016
In the Court of Ms. Sonam Singh, Civil Judge-05, Central District, Tis Hazari
Courts, Delhi.
CS No. 595014/16
Unique ID No. 02401C0480282003
1.Shri Jagat Singh S/o Late Shri Sahab Ram
2. Shri Sukh Ram S/o Late Shri Sahab Ram (Through Lrs) 2a) Smt. Gian Wati Wd/o Shri Sukh Ram 2b) Shri Rajesh Kumar S/O Shri Sukh Ram 2c) Master Sudhir Kumar (minor) (Through his mother as his natural guardian & next friend)
3. Shri Mukh Ram S/o Late Shri Sahab Ram
4. Shri Balbir Singh S/o Late Shri Sahab Ram
5. Shri Ranbir Singh S/o Late Shri Bhagat Singh @ Bhagat Ram
6. Shri Rajinder Singh S/o late Shri Daulat Ram
7. Devinder Singh S/o late Shri Daulat Ram
8. Smt. Shish Kaur D/o Late Shri Sahab Ram All R/o House No. 340, Village Lado Sarai, Tehsil Mehrauli, New Delhi. ...Plaintiffs Versus
1. Samey Singh S/o of Late Shri Dhani Ram
2. Shri Dharam Singh S/o of Late Shri Dhani Ram
3. Smt. Samey Kaur D/o Late Sh. Dhani Ram
4. Shri Baljit Singh S/o late Sh. Sardar Singh
5. Shri Sarjit Singh S/o late Sh. Sardar Singh
6. Shri Rishi S/o Late Sh. Bhim Singh All residents of village Lado Sarai, New Delhi.
7. Shri Jagpal Singh, S/o Shri Ram Swaroop Singh
8. Shri Dalip Singh, S/o Shri Ram Rikh
9. Shri Shishu Pal, S/o Shri Dalip Singh All Residents of Village Said-ul-Aiab, Tehsil Mehrauli, Delhi ...Defendants Date of institution:09.12.1993 Date of final Decision: 31.08.2016 Judgment:
1. The Plaintiffs have filed the present suit for relief of injunction in order to restrain the Defendants from illegally, forcibly and without due process of law dispossessing the Plaintiffs and from interfering in the peaceful possession of the Plaintiffs from the property shown in yellow colour in the site plan, comprised of Khasra No. 347/58 min. (5-02) measuring 5 bighas 2 biswas, situated within the revenue estate of Village Said-ul-ajaib, Tehsil Mehrauli, New Delhi and more clearly shown in the red color in the site plan (hereinafter referred to as "suit property") and also to direct Defendants no. 1 to 6 to restrain from selling any portion of said Khasra no. and/or parting with the possession of any portion to any person whosoever .
Plaintiffs' case as per the plaint:
2. Plaintiffs have averred that the Plaintiffs and Defendant no. 1 to 6 are the co-owners and in joint possession of plot of land measuring 5 bighas 2 biswas (5-02) comprised of Khasra No. 347/58 min, situated within the revenue estate of village Said-ul-ajiab, Tehsil Mehrauli, New Delhi. Further, it is pleaded that by virtue of family settlement, the Plaintiffs were put in possession of the area shown in yellow colour in the site plan attached.
Moreover, it is asserted by the Plaintiffs that the Defendants No. 1 to 6 have been in possession of portion shown in green in the site plan attached. Further, it is pleaded that the Defendants are trying to dispossess the Plaintiffs from the portion shown in yellow in the site plan.
Defendant no. 1, 2, 4 to 9's case as per their written statement:
3. In the Written Statement filed by Defendant no. 1, 2, 4 to 9 have taken the objection that the suit is not maintainable on account of mis-joinder and non-joinder of necessary parties. It was pleaded that the of Defendant no. 3 has died about 6 years ago and the LRs of Defendant no. 3 had not been impleaded and as such the suit has been filed against a dead person. Further, Defendants alleged that the Plaintiffs were never in possession of the suit property as alleged in the plaint at any point of time. It was pleaded that the documents filed by the Plaintiff are totally manipulated and fabricated in connivance with Revenue staff of Tehsil Mehrauli. Further, it was alleged that the suit is not maintainable as the Plaintiffs have not come to this court with clean hands as the Plaintiff deliberately did not disclose at the time of filing the present suit that the Defendant no. 7, has already filed a suit for permanent injunction against some of the Plaintiffs and Defendants etc and that the said suit is pending in the court Ms. Mamta Singla, SJ, Delhi bearing no. 1444/93 titled as Jaspal Singh Vs. Samey Singh and others. It was pleaded that in that case, the Ld. Court appointed a Local Commissioner who visited the spot and filed his report. It is further averred that as per the report of the Local Commissioner, the Plaintiffs were never in possession of the suit premises. Further, Defendants alleged that the present suit is not maintainable under the provisions of the Delhi Land Reforms Act 1954. It was also pleaded that the suit of the Plaintiffs merits dismissal as the same has not been properly valued for purpose of court fees and jurisdiction. It was also alleged that the Defendant no. 8 had purchased 196 sq. yds of the suit property i.e. the area shown in green in the site plan filed by the Defendants from Smt. Raj Kumari and Defendant no.7 is in possession in the remaining area, shown in yellow in the site plan. Lastly, the Defendant no. 1, 2, 4 to 9 denied all the facts as made by the Plaintiffs in their plaint.
Replication:
4. Replication was filed by the Plaintiffs to the Written Statement filed by the Defendants. Plaintiffs denied the averments made by the Defendant in their written statement and reiterated their stand taken in the plaint.
Issues:
5. Issues were framed on 27.05.2003. The following issues were framed as given below:
1) Whether the Plaintiff is entitled for decree of permanent injunction as prayed for? OPP
2) Whether the suit is bad for (sic: not maintainable on account of) mis-joinder and non-joinder of necessary parties ? OPD
3) Whether the suit is lack of cause of action (sic:suit lacks cause of action )?
OPD 4) Whether the suit is not maintainable under the provisions of Delhi Reforms Act ? OPD 5) Relief. Evidence on behalf of Plaintiffs:
6. PW-1 Sh. Rajinder Kumar, the Plaintiff no 6 himself stepped into the witness box and was examined-in-chief by way of affidavit Ex.PW1/A and relied on the following documents:
Sr. No Exhibit/Mark Nature of Documents
1. Ex. PW 1/1 Site Plan
2. Ex. PW-1/2 to Ex The certified copies of Khatoni and Khasra PW-1/10 Giradawari entries.
3. Ex. PW 1/11 to Six photographs Ex PW-1/16
4. Ex. PW 1/17 The Copy of Kalandara u/s 100 of D.P. Act, dated 24.11.1993
5. Ex. PW-1/18 The copy of DD No. 15-A dated 24.11.1993
6. Ex. PW 1/19 The copy of Personal Bond of Sukh Ram
7. Ex. PW-1/20 The copy of Surety bond of Mukh Ram
8. Ex. PW 1/21 The copy of complaint dated by DDA dated 24.11.1993.
9. Ex. PW 1/22 The certified copy of the judgment dated 29.05.1995, passed by Smt. Archana Sinha, MM, Delhi
10. Ex. PW 1/23 The copy of order passed by S.D.M./R.A , New Delhi dated 25.07.1974
11. Ex. PW 1/24 The copy of order passed by S.D.M. dated 13.05.1974
12. Ex. PW-1/25 The copy of plaint in suit no./93
13. Ex. PW-1/26 to The copy of MLC of Laxmi, Dalbir Singh and Ex PW-1/28 Mahabir.
PW-1, Sh. Rajinder Kumar, was duly cross examined by ld. counsel for the Defendants.
Evidence on behalf of Defendants:
7. The Defendants in support of their case have filed affidavit in evidence of Sh. Dalip Singh, who is Defendant no.8, which is Ex. DW-1/A and placed on record the following documents:
Sr. Exhibits Nature of Documents
No.
1. Ex.DW-1/1 Agreement to sell in favour of the Deponent on
08.06.1993 executed by Smt. Raj Kumari.
2. Ex. DW-1/2 to Ex DW- "Declaration and No objection" and "General 1/3 Power of Attorney" in favour of Deponent on the same day along with a Declaration and GPA in favour of the Deponent
3. Ex. DW-1/4 Copy of the receipt executed by Deponent
4. Ex DW-1/5 Will executed by Smt. Raj Kumari in favour of the Deponent
4. Ex DW-1/6 to Ex DW- The Khasra Girwadwari entries in the name of 1/12 Smt. Raj Kumari and other vendors had been effected by the revenue staff in their name upto 1988.
5. Mark A Copy of mutual partition between recorded Bhoomidars DW-1, was duly cross examined by Plaintiff's counsel.
8. The Defendants in support of their case have also filed affidavit in evidence of Sh.
Sunder Lal, Defendant no.8 which is Ex. DW-2/A and who was also duly cross examined by the Plaintiffs' counsel.
9. The Defendants in support of their case have filed affidavit in evidence, which is Ex. DW-3/A of Sh. Baldev Raj Mulla, Defendant no. 8, who is DW-3, and the documents Ex DW-1/1 to Ex DW-1/5 were shown to the witness and the signatures of his wife were identified by the witness and who was also duly cross examined by the Plaintiffs' counsel.
10. The Defendants in support of their case have filed affidavit in evidence of Sh. Sh. Rishi Pal Singh, who is Defendant no. 6 which is Ex. DW-4/A and who was cross examined by the Plaintiffs' counsel.
11. It is also pertinent to note that on 18.11.1999, 09.02.2004 the Ld. Predecessor observed that the suit stood abated against Defendant no.1, Defendant no.4. On 03.01.2014, Ld. Predecessor had observed that the right to sue against LRs of deceased Defendant no.8 does not survive. Further, on 16.07.2010, all the remaining Defendants were proceeded ex parte.
12. I have gone through the record minutely and based on the evidence and arguments held before this court, the issue wise finding in this matter is as under:
Issue no. 2) Whether the suit is bad for (sic: not maintainable on account of) mis- joinder and non-joinder of necessary parties ? OPD The onus to prove this issue was on the Defendants. The Defendants had averred that since the Defendant no.3 had died about three years before the filing of the suit and the LRs. of Defendant no.3 were not impleaded, the suit was not maintainable. However, except a bald averment, no evidence was brought by the Defendants to prove the aforesaid fact. Hence, the Defendants have failed to prove the present issue.
Hence, the issue is accordingly decided against the Defendant and in favour of the Plaintiff.
13. Issue No. 4) Whether the suit is not maintainable under the provisions of Delhi Reforms Act? OPD The onus of the aforesaid issue was put on the Defendants but during the course of the final arguments and in their written submissions, they conceded that the suit is not barred under Section 185 of DLR Act, as the area in which the suit property is situated is built up area and no agriculture activities are going on in that area. In Ram Lubbaya Kapoor v. J.R. Chawala & Ors., 1986(10)DRJ 359 the Hon'ble Delhi High Court has held that any land before it can be termed "land" for the purpose of the Delhi Land Reforms Act,1954 must be held or occupied for purposes connected with agriculture, horticulture or animal husbandry etc. and if it is not used for the said purposes, it ceased to be a land for the purposes of the Act and the provisions thereof will no longer apply and the remedy of the aggrieved party, if any, would be under the general law of the land. Similar view was taken by the Hon'ble Delhi High Court in Narain Singh & Anr. vs. Financial Commissioner, 152 (2008) DLT 167. Since admittedly, there are no activities of agriculture, horticulture or animal husbandry etc going on in the suit property, thus the suit premises do not get covered by the definition of "land", as per DLR and thus, suit is not barred by Section 185 of DLR Act.
Thus, this issue is decided in the favour of the Plaintiffs and against the Defendants. It is ordered accordingly.
14. Since, both issue no.1 and 3 are inter-connected, both have been discussed by way of a common discussion:
Issue No. 1) Whether the Plaintiff is entitled for decree of permanent injunction as prayed for? OPP Issue No. 3) Whether the suit is lack of cause of action (sic:suit lacks cause of action )? OPD In the present case, the Plaintiffs has filed the suit for relief of injunction to restrain the Defendants from dispossessing and interfering in the possession of the Plaintiffs over the suit property and also to restrain Defendants no. 1 to 6 to restrain from selling any portion of said Khasra No. 347/58 and/or parting with the possession of any portion to any person whosoever. Per contra, the Defendants in their joint written statement have averred that that the Plaintiffs have nothing to do with the suit property and even are not in possession of the same. Further, it is averred in the Written Statement that the Defendant no. 8 had purchased 196 sq. yds of the suit property i.e. the area shown in green in the site plan filed by the Defendants from Smt. Raj Kumari and Defendant no.7 is in possession in the remaining area, shown in yellow in the site plan.But the Plaintiff despite knowledge of these averments made in the Written Statement did not incorporate the relief of declaration, declaring the Plaintiffs as owners of the suit property. It is a settled principle of law that a suit for permanent injunction simplicitor relating to immovable property is maintainable only when there is merely interference with Plaintiffs' lawful possession or threat for dispossession. However, when there is a cloud raised on the Plaintiffs' title, a suit for declaration, with or without consequential injunction is the remedy. The Hon'ble Supreme Court of India in Anathula Sudhakar v. P. Buchi Reddy (dead) by LR's and others, AIR 2008 SC 2033 wherein the Supreme Court had examined the nature of the relief that the Plaintiffs must plead and seek in different factual backgrounds, in a suit relating to an immovable property. Paragraphs 11 to 14 of that decision, read as follows:
"11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. 11.1) Where a Plaintiffs is in lawful or peaceful possession of a property and such possession is interfered or threatened by the Defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2) Where the title of the Plaintiffs is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 11.3) Where the Plaintiffs is in possession, but his title to the property is in dispute, or under a cloud, or where the Defendant asserts title thereto and there is also a threat of dispossession from Defendant, the Plaintiffs will have to sue for declaration of title and the consequential relief of injunction. Where the title of Plaintiffs is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the Plaintiffs will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the Defendant or challenge to Plaintiffs's title raises a cloud on the title of Plaintiffs to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the Plaintiffs has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the Plaintiffs's title, it does not amount to raising a cloud over the title of the Plaintiffs and it will not be necessary for the Plaintiffs to sue for declaration and a suit for injunction may be sufficient. Where the Plaintiffs, believing that Defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the Defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over Plaintiffs's title, then there is a need for the Plaintiffs, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
13. In a suit for permanent injunction to restrain the Defendant from interfering with Plaintiffs's possession, the Plaintiffs will have to establish that as on the date of the suit he was in lawful possession of the suit property and Defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The Plaintiffs may prove physical or lawful possession, either of himself or by him through his family members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation.
The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the Plaintiffs to the remedy of a full-fledged suit for declaration and consequential reliefs."
15. Another decision is of E.Sathidass v. C.Ponnuswamy and another, 2011 (1) CTC 801 which would amply make the point clear that a Plaintiffs by filing a mere injunction Suit cannot call upon the Court to conduct a broad based roving inquiry in respect of the title of the parties over the suit property and the Court also would not be justified in doing so. Once the Court comes to the conclusion that there is some serious title dispute or cloud relating to the title over the suit property, then the parties should be driven to the extent of filing a comprehensive Suit only.
16. In view of the aforesaid law, firstly, the Plaintiff was required to prove his possession. It is observed by the court that a Local Commissioner was also appointed in the present matter vide order dated 24.12.1993 to ascertain the aspect of possession. The said Local Commissioner filed his report dated 04.01.1994 clearly stating that the Plaintiffs are not in possession of any portion of the suit property. It is settled law that for admission of the said Commissioner's report as evidence, it is not necessary that the Commissioner should enter the witness box, or he should produce the said report before the Court and the Court has to mark it as an exhibit in the case. In other words, without marking the Commissioner's report as exhibit, without the Commissioner being examined in the case, the said Commissioner's report can be taken as evidence in the case. In the present case, though objections were filed by the Plaintiffs but they were never pressed upon and hence, never decided and thus, the report of Local Commissioner will be accepted as it is. In the report, it is specifically stated that: "I have asked Sukh Ram, one of the Plaintiffs in presence of his counsel, Sh. N.K. Sharma, whether he can show his possession by unlocking any possession shown in yellow and green in the site plan,which he declined to do so as he does not have key to any of the plot shown in the site plan in the yellow and green in the site plan."
17. Further, the Plaintiffs have not placed a single document on record to show their possession of the property at any stage of time. There is no cogent evidence produced by the Plaintiffs in this regard. The photographs Ex. PW1/11 to Ex.PW/16 are photographs only of cattle and a man and do not show how the Plaintiffs are in possession of it. Moreover, the Plaintiffs did not make efforts to summon any independent witnesses so as to prove that they are in possession of the suit property. Further, the photographs produced on record are not accompanied with the negatives nor any photographer has stepped into the witness box to prove them. Therefore, these photographs are not proved as per law. Moreover, the date on which these photograph were taken, cannot be inferred from the bare perusal of these photographs, as they do not bear any date or time when they were allegedly taken. Further no police complaint was proved by the Plaintiffs to show that there was threat of dispossession. Moreover,the Plaintiffs by relying on Khatoni Ex. PW1/2 to Ex. PW1/10 submitted that the Khatoni shows that the Plaintiffs are owners of 7/17th share but this argument does not help the Plaintiffs, as it is settled law that revenue records do not create title in land. Apart from a mere self serving ipse dixit of the Plaintiffs that they are in possession of the suit property, there is no other evidence on record. Hence, the Plaintiffs have failed to show that they are in possession of the suit property. Secondly, since the Defendants alleged to be the owner of the suit property by way of documents executed by Smt. Raj Kumari in favour of Defendant no.8, a cloud was raised over the title of the Plaintiff but the Plaintiffs did not amend the plaint to include the relief of declaration, which has not become time-barred and on this account also, the suit also fails.
In light of the above, the issues are decided against the Plaintiffs and in favour of the Defendants. It is ordered accordingly.
Relief
18. In view of the facts and circumstances, the Plaintiffs are not entitled any relief in this matter.
Suit is dismissed.
Let a decree sheet be prepared.
No order as to costs.
All pending applications, if any, are disposed off as not pressed.
Announced in the Open Court on 31.08.2016 (Ms. Sonam Singh) Civil Judge-05, Central District Tis Hazari Courts,Delhi Present judgment consists of 15 pages and each page is signed by me.