Delhi District Court
Chandan Kumar vs Surender Pal on 4 December, 2023
IN THE COURT OF MS. MANU VEDWAN,
ADDITIONAL DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 476402/2015
CNR No. DLNE01-000366-2013
Chandan Kumar
S/o Sh. Daulat Prasad
R/o House No. 128, Gali No. 2,
Gamri, Bhajanpura, Delhi. .....Plaintiff
Versus
1. Surender Pal
S/o Sh. Ganga Ram
R/o G-Block, Gali No. 16-B,
Sonia Vihar, Delhi.
2. Meena
W/o Sh. Ganga Ram
R/o E-2/11, Gali No. 1,
5th Pusta, Sonia Vihar, Delhi.
3. Pramod Kumar
S/o Sh. Maheshwar Prasad
R/o Village Bisanpura,
Thana Madhipur, District, Madhubani. ..... Defendants
Date of Institution : 29.10.2013
Date of Reserving Judgment : 28.11.2023
Date of Judgment : 04.12.2023
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendants CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 1 of 19 seeking the decree of possession, permanent injunction and for recovery of use and occupational charges.
2. Brief facts, as stated in the plaint are that plaintiff is the sole and absolute owner of the property/plot measuring 30 square yards out of Khasra number 438, situated at Village Biharipur, in the abadi of G-Block, 58th Pushta, Sonia Vihar, Delhi (hereinafter referred to as suit property). It is stated that the plaintiff had purchased the suit property from its erstwhile owner Sh. Rajender Singh S/o Sh. Asha Ram R/o 17, Sadat Pur Gujran, Delhi-94 by virtue of General Power of Attorney, agreement to sell, Deed of Will, receipt and possession letter, all dated 25.02.2014 executed in the presence of marginal witnesses. It is further stated that plaintiff had never sold his property/suit property at any point of time and was in the peaceful physical possession of the same. It is further stated that unfortunately on 10.08.2011, plaintiff was sent to Judicial Custody in First Information Report bearing number 362/2011 filed under sections 498A/304B/34 of Indian Penal Code and remained in Judicial Custody for about one and half year. It is further stated that after releasing from judicial custody on 30.10.2012, when plaintiff reached back to his house where he used to reside on rent, he found that all the documents related to his property/suit property alongwith other material was not lying there.
It is further stated that landlord of plaintiff was Sh. Pramod Kumar S/o Sh. Mishri Lal, who in collusion and conspiracy of one Sh. Pramod Yadav and other associates manufactured and manipulated some forged and fabricated documents. It is further stated that on the basis of these forged documents, possession of the property was handed over to some other persons with the sole motive to cause wrongful loss to the plaintiff and gain to themselves. It is further stated that in that regard, plaintiff had also filed the complaint before the Deputy Commissioner of Police, North CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 2 of 19 East Delhi and an First Information Report, bearing number 108/2013, was lodged before the Police Station Bhajanpura under sections 448/420/468/471/380/406 of Indian Penal Code in which Sh. Pramod Kumar and his co-accused Sushil Yadav were put in the Judicial Custody. It is further stated that the defendant has no right, title or interest over the suit property in any manner. It is further stated that the plaintiff had approached the defendant and asked him to hand over the suit property, but, instead of vacating the same, defendant started quarreling with the plaintiff.
It is also stated that the plaintiff had also sent a legal notice to the defendant, on 21.09.2013, and defendant had sent the false and frivolous reply on 09.10.2013. It is further stated that now the plaintiff came to know that defendant had purchased the property in question from Smt. Meena W/o Sh. Ganga Ram on the basis of forged and fabricated documents which are liable to be cancelled. It is further stated that plaintiff had also come to know that as per the defendants, plaintiff had sold the property in question to one Sh. Pramod Kumar S/o Sh. Maheshwar Prasad R/o 502, D- Block, Village Gamri, Delhi, on 25.04.2012 vide General Power of Attorney, agreement to sell, affidavit, possession letter and receipt for sale consideration of rupees 1,60,000/-. It is further stated that plaintiff had never sold the suit property either to Sh. Pramod Kumar or to any other person because the plaintiff was lodged in Judicial Custody since 10.08.2011 and was released from jail only on 30.10.2012 so the question of execution of alleged documents dated 25.04.2012 in favour of Sh. Pramod Kumar did not arise. It is further stated that when plaintiff had not sold the property to Sh. Pramod Kumar then how and on what basis Sh. Pramod Kumar had further transferred the property to any other person. It is therefore requested that the decree of possession, declaration, permanent injunction and the decree of use and occupation charges be passed in CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 3 of 19 favour of plaintiff and against the defendant.
3. Written statement has been filed on behalf of the defendant number 1 in which in which apart from denying the allegations, levelled in the plaint, it is stated by the defendant number 1 that the plaintiff had already sold the suit property to one Pramod Kumar S/o Sh. Maheshwar Prasad on 25.04.2012 for a sum of rupees 1,60,000/- and executed various documents that is General Power of Attorney, Agreement to Sell, Will, affidavit, possession letter and receipt in favour of Sh. Pramod Kumar. It is further stated that the defendant is bonafide purchaser of the suit property which was purchased from its owner Smt. Meena W/o Sh. Ganga Ram and the original chain of the documents of the suit property is in the possession of defendant from the date of purchase that is 07.12.2012. It is further stated that the plaintiff has no cause of action and his suit is liable to be dismissed. It is also stated that the defendant is absolute, rightful owner and in the possession of the suit property from the date of its purchase. It is further stated that the plaintiff had tried to dispossess the defendant forcibly from the suit property and therefore, the defendant had filed the suit bearing CS No. 262/2013 for permanent injunction against the plaintiff. It is therefore requested that the suit of plaintiff be dismissed.
Defendant number number 2 in her written statement stated that defendant number 2 has no concern with the suit property as she had already sold out the same to the defendant number number 1, on 07.12.2012. It is further stated that the defendant number 2 had purchased the suit property from Sh. Sharad S/o Sh. Om Prakash and plaintiff had no right, title or interest in the suit property as he had already sold the same to one Sh. Pramod Kumar S/o Sh. Maheshwar Prasad on 25.04.2012 and thereafter, aforesaid Pramod Kumar had sold the same to Sharad on 29.06.2012 through documents viz. General Power of Attorney, agreement CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 4 of 19 to sell, etc. Despite due service, defendant number 3 Sh. Pramod Kumar has miserably failed to appear before the Court and to present his case therefore, he was proceeded ex-parte, vide order dated 02.11.2015.
4. Separate rejoinders to the written statement of defendant number 1 and 2 was filed which is essentially a reiteration of the averments in the plaint and denial of contentions in the written statements.
5. On the basis of pleadings, the following issues were framed:-
(i) Whether the plaintiff had already sold suit property on 25.04.2012 to defendant number 3?OPD-1
(ii) Whether defendant number 1 is bonafide purchaser of the suit property, if so its consequences? OPD-1
(iii) Whether the suit is bad for mis-joinder and non-joinder of the parties? OPD-1
(iv) Whether the suit is not maintainable without seeking relief of declaration? OPD-1
(v) Whether the plaintiff is entitled to the decree for possession of the suit property as prayed for? OPP
(vi) Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP
(vii) Whether the plaintiff is entitled for decree of damages/use and occupation charges as claimed for? OPP
(viii) Relief.
6. After framing of issues, plaintiff has led his piece of evidence. Plaintiff got examined himself as PW1. He reiterated the facts as are mentioned by him in his plaint. He tendered his evidence by way of CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 5 of 19 affidavit which is Ex.PW1/A and relied upon the documents i.e. site plan of the suit property as Ex.PW1/1, photographs of the suit property as Ex.PW1/2, copy of judgments passed by the Hon'ble Court of Ms. Nisha Saxena, Ld. ASJ, KKD Court alongwith order of release Ex.PW1/3, copy of complaint, dated 19.02.2013 against the defendant number 3 as Ex.PW1/4, copy of First Information Report bearing number 108/2013 Police Station Bhajanpura as Ex.PW1/5, copy of legal notice sent to defendant, dated 21.09.2013 as Ex.PW1/6, copy of reply of defendant as Ex.PW1/7 and copy of reply of RTI from the office of PIO, North East Delhi as Ex.PW1/8 (colly).
PW1 was cross examined at length by Ld. Counsel for defendants. During the course of his cross examination, PW1 has vehemently denied the suggestion put to him by Ld. Counsel for defendants that he had sold the suit property to one Pramod on 25.04.2012. During the course of further cross examination, PW1 has admitted his photograph on the photocopy of transfer documents in favour of Sh. Pramod Kumar, dated 25.04.2012 in which he was wearing a police cap though, at the same time, he has clarified that the photograph was lying in his house and it was stolen when he was in custody. PW1 has further submitted that he had seen his signatures and thumb impression on the photocopies of transfer documents and the same did not belong to him.
Ms. Anshu Verma, Officer, Bank of Baroda, Yamuna Vihar Branch, Delhi was examined as PW2. PW2 produced the statement of account of plaintiff bearing number 27890100013267 from 01.09.2011 to 04.11.2011. PW2 has deposed that the abovesaid account is maintained in Bhajanpura Branch. The statement of account is Ex.PW2/1. PW2 was cross examined by Ld. Counsels for defendant number 1 and 2.
Assistant Sub Inspector Karan Singh from Rashtrapati Bhawan was examined as PW3. PW3 deposed that he was posted at Police Station CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 6 of 19 Bhajanpura in the year 2013. PW3 has further deposed that he received one complaint of plaintiff through Station House Officer and he conducted an inquiry upon the complaint and recorded the statements and submitted the report. After seeing the Court file, PW3 has stated that the statements of Ashok Mistri S/o Sh Ram Kishore and Girish S/o Ram Bharosey were in his handwriting. The report, dated 19.03.2013, was submitted to the Station House Officer. Thereafter, the case was registered and investigation was marked to some other officer. The report and the statements are Ex.PW1/8.
Sub Inspector Naveen Rathi, Defence Colony Circle, New Delhi was examined as PW4. PW4 has deposed that he was the Investigating Officer of the First Information Report bearing number 362/11 Police Station Bhajanpura under section 304B of Indian Penal Code. PW4 has further deposed that he had arrested the accused Chandan Kumar (plaintiff in the present Court), his brother and his mother in the aforesaid case in the month of August 2011. PW4 has also deposed that he remained in the custody till the completion of trial of the case. He was acquitted finally by the Court of Ld. ASJ.
Sh. Rajesh was examined as PW5. PW5 during the course of his examination in chief has deposed that his statement was recorded by the police during the investigation of the criminal case. PW5 has further deposed that he gave his statement after seeing the documents. The statement was in his handwriting and bearing his signatures at point A and the same is Ex.PW5/A. He had seen the papers bearing the photographs of his father at point B, C and D in police station and the same are Ex.PW5/B and Ex.PW5/E. PW5 has further deposed that he had seen the back side of receipt of rupees 55,000/- mentioning therein that he had received sum of rupees 20,500/- on 06.04.2010, however, he had not signed this receipt.
Sh. Ashok Kumar was examined as PW6. PW6 in his examination in CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 7 of 19 chief deposed that he had purchased a plot measuring about 47 square yards at Sonia Vihar alongwith his younger brother about 5 years back. He did not remember the khasra number of that plot. PW6 further deposed that when he was constructing the boundary wall of that plot about 4-4½ years back during winter season, one boy, namely, Pramod came there. He was having photocopy of registry. It was bearing the photograph of plaintiff Chandan. There was a rumor that plaintiff Chandan had gone to jail in a criminal case of death of his bhabhi. PW6 told Pramod that plaintiff Chandan is in jail then he told him that he had to meet Sharad who was living in one plot away from his plot. PW6 did not know whether Pramod met Sharad or not. Thereafter, PW6 went to his village for few days. After 7-8 days of coming back from village, Sharad called and asked him to meet at Bhajanpura. Sharad told him on meeting that he had given bayana to Pramod. The talk took place at a shop where plaintiff Chandan used to sell the gas.
It is further stated that the owner of shop kept the photocopy of the registry with him. Thereafter, he left for his work. PW6 further deposed that the plaintiff Chandan came out of the jail after one year and he met Chandan in the way and told him all the story. At his request, he took him to Sharad. Sharad abused them and thereafter they came back. PW6 further deposed that his statement was recorded by the police during some investigation. Sharad had also lodged a complaint against him in Police Station Sonia Vihar. PW6 gave his statement to the police in Police Station Bhajanpura. He narrated all the incidents to the police. PW6 identified his statement Ex.PW6/A. PW6 was cross examined at length by Ld. Counsels for defendant number 1 and 2. During the course of his cross examination, PW6 submitted that he knew plaintiff Chandan for about two years prior to his going to jail.
After closing of plaintiff's evidence, defendant number 1 has led his CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 8 of 19 piece of evidence. Defendant number 1 Surender Pal had himself stepped into the witness box and deposed as DW1. DW1 has reiterated the same facts as are mentioned by him in his written statement. He tendered his evidence by way of affidavit which is Ex.DW1/A and relied upon the documents i.e. original General Power of Attorney, agreement to sell, Deed of Will, receipt and possession letter, dated 25.02.2010 executed by Sh. Rajender Siingh in favour of plaintiff Chandan Singh as Ex.DW1/1 (colly), original General Power of Attorney, agreement to sell, Will, affidavit, receipt and possession letter, dated 25.04.2012 executed by plaintiff Chandan Kumar in favour of Sh. Parmod Kumar as Ex.DW1/2 (colly), original General Power of Attorney, agreement to sell, Deed of Will, affidavit, receipt and possession letter, dated 29.06.2012, executed by Sh. Pramod Kumar in favour of Sh. Sharad as Ex.DW1/3 (colly), original General Power of Attorney, agreement to sell, Deed of Will, affidavit, receipt and possession letter, dated 07.12.2012, executed by Sh. Sharad in favour of defendant number 2 Smt. Meena Devi as Ex.DW1/4 (colly) and original General Power of Attorney, agreement to sell, Deed of Will, receipt and possession letter, dated 07.12.2012, executed by defendant number 2 Smt. Meena Devi in favour of defendant number 1 Surender Pal as Ex.DW1/5 (colly). DW1 was cross examined at length by Ld. Counsel for plaintiff. DW1 submitted that the plaintiff had not sold the suit property to Pramod Kumar on 25.04.2012 in his presence.
7. I have heard the arguments advanced on behalf of all the parties and perused the case file carefully. Written submissions have also been filed on behalf of the parties.
Plaintiff has filed the written submissions in which once again he has reiterated the contents of the plaint as well as his deposition made by CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 9 of 19 him before the Court. It is stated in the written submissions that on the complaint of plaintiff, one First Information Report bearing number 108/2013 under Section 448/420/468/471/380 of Indian Penal Code was registered against his landlord, namely, Pramod Kumar. It is specifically stated that the plaintiff had never sold the suit property to anybody at any point of time. It is stated by the plaintiff that as per the contentions of defendant number 1 and 2 and especially defendant number 2 Smt. Meena, she had purchased the suit property from one Sharad. Latter, had purchased the same from Sh. Parmod Kumar, S/o Sh. Maheshwar Prasad on 29.06.2012. It is also claimed by both the defendants that plaintiff had sold the suit property to Sh. Parmod Kumar S/o Sh. Maheshwar Prasad on 25.04.2012. It is stated that plaintiff had never sold the suit property to anybody and on the alleged point of time he was in custody. Thereafter, plaintiff has discussed the issues vis-a-vis the evidence. It is stated qua the issue number 1 that no cogent evidence was put forward to prove this issue as the Parmod Kumar who had claimed to have purchased the suit property was never produced before the court. Neither any of the witnesses to those documents were produced for corroborating the stand taken by the defendants. It is stated that the plaintiff could not execute the concerned documents in favour Parmod Kumar S/o sh. Maheshwar Parsad on 25.04.2012 as he was in judicial custody in the First Information Report bearing number 362/2011 under sections 498A/304B/34 of Indian Penal Code. It is stated that the plaintiff was released from the custody only on 30.10.2012, after the pronouncement of the order of acquittal by the Hon'ble Sessions Court. With respect to non maintainability of the suit in the absence of claiming the relief of declaration, it is stated that defendant number 1 and 2 had never denied as such the title of the plaintiff over the suit property and, therefore, there is no requirement for seeking the relief of declaration.
CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 10 of 19 Defendant number 1 had also filed the written submission in which once again he had reiterated the contents of written statement alongwith the testimonies of the witnesses appeared on his behalf. It is stated that plaintiff had purchased the suit property from Sh. Rajender Singh S/o Sh. Asha Ram, on 25.02.2010, vide notarized documents that is General Power of Attorney, agreement to sell, Deed of Will, receipt of sum of rupees 1,50,000/- and possession letter, all dated 25.02.2010. It is stated that plaintiff had then sold the suit property, on 25.04.2012, to Sh. Parmod Kumar S/o Sh. Meheswar Prasad vide notarized documents that is General Power of Attorney, agreement to sell, Will, receipt of sum of rupees 1,60,000/-, possession letter and affidavit, all dated 25.04.2012 in favour of Sh. Pramod Kumar that is defendant number 3. Defendant number 3 then again sold the suit property to one Sh. Sharad S/o Sh. Om Prakash vide notarized documents that is General Power of Attorney, agreement to sell, Deed of Will, receipt of sum of rupees 3,00,000/-, possession letter and affidavit, all dated 29.06.2012. It is stated that thereafter Sharad sold the suit property to Meena Devi vide notarized documents that is General Power of Attorney, agreement to sell, Deed of Will, receipt of sum of rupees 3,00,000/-, possession letter and affidavit, all dated 07.12.2012 that is defendant number 2, who sold the suit property to defendant number 1 Surender Pal vide notarized documents that is General Power of Attorney, agreement to sell, Deed of Will, receipt of a sum of rupees 4,00,000/-, possession letter and affidavit, all dated 07.12.2012. It is further stated that the suit of plaintiff is not maintainable and is liable to be rejected under Order I Rule 13 CPC because of non-joinder/mis-joinder of the parties as plaintiff had intentionally and deliberately did not make Sharad a party in the present case. Plaintiff has filed the false suit against the defendant number 1 as the defendant number 1 Surender Pal is the bonafide purchaser of the suit property.
CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 11 of 19
8. After recording the gist of evidence led by both the parties and discussing the written submissions filed on behalf of parties, let me record the findings on each issue.
Issue number 1, that is, whether the plaintiff had already sold suit property on 25.04.2012 to defendant number 3? Issue number 2, that is, whether defendant number 1 is bonafide purchaser of the suit property, if so its consequences? and Issue number 5, that is, whether the plaintiff is entitled to the decree for possession of the suit property as prayed for? The onus of proving issue number 1 and 2 is on the defendant number 1, while the onus to prove issue number 5 is upon the plaintiff. As all these issues are interconnected and having the bearing upon each other as well as on the other issues are taken up together and in preference to other issues.
To start with, it is observed by the Hon'ble Supreme Court in R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr, 2003 SCC Online SC 1117 that: "....Whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It is the evaluation of the result drawn by applicability of the rule, which makes the difference. The probative effects of evidence in civil and criminal cases are not however always the same and it has been laid down that a fact may be regarded as proved for purposes of a civil suit, though the evidence may not be considered sufficient for a conviction in a criminal case...." Hodson, LJ has observed that In civil cases there may be balance of probability/degrees of probability. No doubt, appreciation of evidence is the backbone of a CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 12 of 19 judgment. Appreciation is basically, the systematic, scientific and methodical evaluation of evidence. As, according to Benjamin N. Cardozo J in "The Nature of Judicial Process" a judge is not totally free during the course of appreciation of evidence instead, he has to draw his inspiration from consecrated principles. The belief regarding the existence of a fact considered to be founded on a balance of probabilities. The first step in this process is to fix the probabilities, the second to weight them though, the two may often intermingle. As, per Lord Denning, the degree of probability depends on the subject matter with respect to the appreciation of documentary evidence in civil cases. Cardinal principle is that clear and unambiguous words prevail over the intention. Reliance is placed upon Avadh Kishore vs. Ram Gopal AIR 1979 SC 861.
With respect to the burden of proof/onus, the incidence of the burden on different issues may lie in different places, and issues may rise or fall according to the facts proved, but on analysis of issue the legal burden will not change it is the burden of establishing the facts and contentions which will support a party's case. If at the conclusion of the trial plaintiff has failed to establish these to the appropriate standard, he will lose. The incidence of this burden is usually clear from the pleadings, it usually being incumbent upon the plaintiff to prove what he contends. The evidential burden, however, may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; this burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be, was adduced by either side. Reliance is placed upon 'The Law of Evidence' by Rattan Lal & Dhiraj Lal. With respect to the Indian Evidence Act, as per, Section 101 of the Act, burden of proof of any fact lies on the person claiming or assenting that fact. Section 102 of the Act also says that the burden of proof lies on the person, who would fail, if no evidence was given at either CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 13 of 19 side. The Court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. The burden of proof is of importance where by reason of not discharging the burden which was put upon it, a party must eventually fail. The initial burden of proving a prima facie case in his favour is cast on the plaintiff, when he gives such evidence as will support a prima facie case, onus shifts on the defendants. Reliance is placed upon Life Insurance Corporation of India v Ram Pal Singh Bisen, (2010) 4 SCC 491, Ram Bhajan v Abdul Rahman, AIR 1997 AII 17, Rajasthan State Road Transport Corporation v Bajrang Lal, (2014) 4 SCC 693.
Now, in the instant case, burden of proof with respect to the fact that plaintiff is entitled to the possession of the suit property falls upon the plaintiff and the same has to be discharged by the plaintiff, in the light of, the specific counter allegations of the defendants. Plaintiff has himself appeared in the witness box as PW1 and relied upon the wide range of the documents viz. General Power of Attorney, agreement to sell, affidavit, receipt, all dated 25.02.2010 executed in favour of plaintiff by the admitted erstwhile owner. Even otherwise also, admittedly, plaintiff is the owner of the suit property as both the defendants that is defendant number 1 and 2 (defendant number 3 Pramod S/o Sh. Maheshwar since not appeared despite due service, proceeded ex-parte) who are appearing before the Court have claimed their titles through the plaintiff only. It is the case/defence of both the defendants that plaintiff had sold the suit property to defendant number 3 on 25.04.2012. Defendant number 3 as already discussed in detail never appeared before the Court despite due service and his version as such is not known through him, but, from the defendant number 1 and 2 only. Now, defendant number 1 has also relied upon the documents purportedly executed between the plaintiff and the defendant number 3, but, neither the defendant number 3 nor any of the witnesses CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 14 of 19 mentioned on those documents ever be produced by the defendant number 1 to substantiate/prove/establish his stand that too especially in the light when plaintiff is vehemently contesting his case stating that he has never sold the suit property to that Pramod Kumar that is defendant number 3.
To be more specific plaintiff is contesting this case on the ground that at the time of the alleged execution of documents between him and Pramod Kumar S/o Sh. Maheshwar Prasad, he was in judicial custody. To prove this fact, plaintiff has got examined PW4 Investigating Officer of the case bearing First Information Report number 362/2011, Police Station Bhajanpura under section 304B of Indian Penal Code and relied upon the judgment of the concerned Court dated 30.10.2012 in which plaintiff was acquitted and was directed to be released. It is to be noted that on one hand plaintiff is able to prove that he was lodged in judicial custody at the time of alleged execution of documents between him and Sh. Pramod Kumar S/o Sh. Maheshwar Prasad and is successful in shifting onus upon defendant number 1 who is claiming his ownership through Sh. Pramod Kumar S/o Sh. Maheshwar Prasad. On the other hand, defendant number 1 has failed to discharge the onus lying upon him by not placing any document for consideration by the Court or say no document annexed in accordance with the prescribed procedure/law to show that any type of permission from the concerned jail authority/Court was ever taken for the execution of alleged documents in favour of defendant number 3, plaintiff being in judicial custody on 25.04.2012. Even, no evidence has been put forward negating the fact that the plaintiff was not in such custody on that date/during that period. Also, there is no mention of such fact of custody/out of custody in these documents.
Further, not out of place here to take recourse of provisions of section 73 of the Indian Evidence Act with the caution that it should be exercised with prudence and with great care and caution. It is basically an CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 15 of 19 alternative method and is only discretionary and enabling power. The object of provision is to enable the Court to find out the truth and to do the complete justice between the parties. This section enables the Court to assist itself rather than to assist the party. Reliance is placed upon Ritesh Tiwari vs. State of UP, (2010) 10 SCC 677 and Popathal Jethabai Shah v. State of Maharashtra, 2007 CrLJ (NOC) 605 (Bom.). Therefore, in light of provision alongwith caution even the comparison of the signatures prima facie show that the signatures declared to be of plaintiff on the documents executed between him and Sh. Pramod Kumar as such does not match with the signatures appended by plaintiff on earlier documents executed between him and Sh. Rajender Singh. Again, it may seem not to be of much relevance to the present facts and circumstances, but, it needs to be considered also. PW2 Ms. Anshu Verma, Officer, Bank of Baroda has deposed that she has brought the statement of account of plaintiff from the period 01.09.2011 to 04.11.2011 from which an amount of rupees 1,11,680/- was withdrawn during the period when plaintiff was in custody. At the same time, it is mysterious/inexplicable and further never bothered to be explained by either of the defendants that how the two successive transactions pertaining to the same property happened on a single date that is on 07.12.2012 and that too with the different consideration amount. This is in relation to the transactions between Sharad and Meena that is defendant number 2 and between Surender Pal that is defendant number 1 and Meena Devi. Both these sets of documents between the parties pertaining to the same date that is 07.12.2012, still neither of the parties bothered to mention the time of the execution of the alleged documents when time may be the essence of these documents.
As, right to possession of an immovable property arises not only from a complete ownership right in the property, but, having a better title or a better entitlement/right to possession of the property than qua the CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 16 of 19 person who is in actual physical possession thereof. Reliance is placed upon Shri Ramesh Chand v. Suresh Chand & Anr on 09.04.2012 decided by Hon'ble High Court of Delhi, Maya Devi v. Lalta Prasad 2014 Legal Eagle (SC) 120, Hardip Kaur v. Kailash (2012 ) 193 DLT 168 and Maria Margarida Sequeria Fernandes v. Erasmo Jack De Sequeira (Dead) through LRs. Civil Appeal No. 2968/2012 (arising out of SLP (C) No. 15382/2009. In view of the aforesaid facts/evidence/discussion plaintiff though may not be the classical owner of suit property as would an owner be under a duly registered sale deed, but he would have better rights/entitlement of possession of the suit property than the defendants. Accordingly, in view of the above discussion, it can be safely said that the burden of proof/onus lying upon the plaintiff has been well discharged by him in accordance with the aspect of preponderance of probabilities. Therefore, all these issues are decided in favour of plaintiff.
Issue number 3, that is, whether the suit is bad for mis-joinder and non-joinder of the parties? The onus to prove this issue is upon the defendant number 1. After giving ample effective opportunities, neither any effective evidence in that regard has been led by defendant number 1 nor he has clarified this issue during the course of oral arguments or in his written submissions. Even otherwise also, it is the defendant number 1, who is now in the possession of the suit property. Therefore, there seems to be no reason to arrive at the conclusion that the suit is bad for mis-joinder and non-joinder of the parties. Accordingly, this issue is decided against the defendant number 1.
Issue number 4, that is, whether the suit is not maintainable without seeking relief of declaration? The onus to prove this issue is upon the defendant number 1. Since both the appearing defendants that is defendant number 1 and 2 have never disputed the ownership of the plaintiff over the suit property therefore, there seems to be no reason for calling the CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 17 of 19 declaration of the title when the title has already been admitted by both the defendants. Further, the defendant number 1 has himself claimed the ownership over the suit property through plaintiff only. Accordingly, this issue is decided against the defendant number 1.
Issue number 6, that is, whether the plaintiff is entitled to the decree of permanent injunction as prayed for? The onus to prove this issue is upon the plaintiff. As the issue number 1, 2 and 5 have already been decided in favour of plaintiff, this issue is also decided in favour of plaintiff.
Issue number 7, that is, whether the plaintiff is entitled for decree of damages/use and occupation charges as claimed for? The onus to prove this issue is upon the plaintiff.
After viewing and analyzing the evidence led by plaintiff carefully it can be safely said that plaintiff has failed to file any positive evidence to prove that he is entitled to recover rupees 10,000/- per month from the defendants towards the use and occupation charges. With respect to this claim, neither plaintiff has filed any documentary proof nor examined witness who is versed with the rental rates prevailing in the area in which the suit property is situated. In the overall circumstances, it seems to be justified that the rental rates of the suit property can be assumed to be rupees 4,000/- per month. Therefore, rupees 4,000/- per month is granted to the plaintiff towards the use and occupation charges from 01.10.2013 till the handing over the possession by the defendants to the plaintiff subject to furnishing of deficit Court fee, if any by the plaintiff. Accordingly, this issue is decided in favour of plaintiff.
9. Thus, in the totality of circumstances and in view of foregoing discussion of the case coupled with evidence adduced on record by plaintiff, the suit of the plaintiff is decreed in favour of plaintiff and CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 18 of 19 against the defendants in the following terms:- (a) A decree of possession is passed in favour of plaintiff and against the defendants thereby defendants are directed to hand over the peaceful and vacant possession of the suit property that is property/plot measuring 30 square yards out of Khasra number 438 situated at Village Biharipur in the abadi of G-Block, 58th Pushta, Sonia Vihar, Delhi, (b) A decree of permanent injunction is passed in favour of plaintiff and against the defendants thereby restraining the defendants, their agents, servants, attorneys, legal heirs, successors and authorized legal representatives from selling, mortgaging, alienating and from creating any third party interest over the suit property that is property/plot measuring 30 square yards out of Khasra number 438 situated at Village Biharipur in the abadi of G-Block, 58th Pushta, Sonia Vihar, Delhi and (c) Defendants are also directed to pay an amount of rupees 4,000/- per month towards use and occupation charges to the plaintiff with effect from 01.10.2013 till the handing over the vacant and physical possession of the suit property that is property/plot measuring 30 square yards out of Khasra number 438 situated at Village Biharipur in the abadi of G-Block, 58th Pushta, Sonia Vihar, Delhi to the plaintiff, subject to furnishing of deficit Court fee, if any by the plaintiff.
10. Parties to bear their own costs.
11. Decree sheet be prepared accordingly.
12. File be consigned to Record Room after necessary compliance.
(Manu Vedwan) Addl. District Judge-02(NE)-01 Karkardooma Courts, Delhi.
Announced in the open court today i.e. 4th December, 2023 CS No. 476402/2015 Chandan Kumar Vs. Surender Pal & Ors. Page No. 19 of 19