Delhi District Court
S.B. Aggarwal vs Baba Avtar Singh on 21 January, 2025
IN THE COURT OF MS. SHILPI M JAIN : DISTRICT JUDGE-05,
SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI
CS DJ ADJ 15631/16
CNR No. DLSW010006892016
IN THE MATTER OF:
Sh. S.B. Aggarwal
S/o Late S.K. Aggarwal
R/o C-1/119, Janakpuri, New Delhi
Through his attorney
Sh. Madanjit Singh
S/o Late Sh. Lakhjeet Singh
R/o 341, Nav Sansad Vihar,
Sector-22, Dwarka, New Delhi ................Plaintiff
VERSUS
Baba Avtar Singh
Salhakul Mandir
Mohit Nagar, Kakrola,
New Delhi. ................Defendant
Date of Institution : 20.09.2013
Date of arguments : 20.11.2024
Date of judgment : 21.01.2025
SUIT FOR RECOVERY OF POSSESSION AND
DAMAGES/MESNE PROFITS AND FOR PERMANENT
INJUNCTION.
Digitally
signed by
SHILPI SHILPI M
CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 1 of 40 M
JAIN
Date:
JAIN 2025.01.21
17:03:46
+0530
JUDGMENT
INDEX FACTUAL BACKGROUND ...................3 ISSUES .................13 EVIDENCE GIVEN BY PARTIES .................14 SUBMISSIONS OF THE PARTIES ................18 ISSUEWISE ANALYSIS & FINDINGS ................21 CONCLUSION .................38
1. Present suit for recovery of possession and damages/mesne profits as well as permanent injunction filed by the plaintiff against defendant with the following relief:
a) Pass a decree of possession in favour of the plaintiff and against the defendant whereby directing the defendant to vacate the suit property i.e. plot bearing no. 48, ad-measuring 250 sq. yards comprising in khasra no.28/4 situated in village Kakrola, Delhi presently known as Mohit Nagar, Kakrola, New Delhi, most specifically shown in red in colour in the site plan, and hand over the vacant physical possession of the suit property to the plaintiff;
b) Pass a decree of damages / mesne profit in favour of plaintiff and against the defendant whereby directing the defendant to pay a sum of Rs.3,40,000/- to the plaintiff being the damages / mesne profit for the illegal and unauthorized use and occupation of the suit property and further directing the defendant to pay the pende-lite and future mesne profit / damages @ Rs.20,000/- per month till handing over the vacant physical possession of the suit property to the plaintiff;
c) Pass a decree of permanent injunction in favour of the plaintiff and against the defendant whereby restraining the defendant, his servant (s), agent (s), attorney (s) etc. from raising any kind of construction over the suit property or creating a third party interest of any kind over the suit property;
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JAIN 2025.01.21 17:03:40 +0530
d) Award the cost of the suit in favour of the plaintiff.
e) pass any further order which this Hon'ble court may deem fit and proper in the facts and circumstances of the present case.
FACTUAL BACKGROUND:
2. It is averred that, the plaintiff is the owner of property bearing plot no. 48 out of khasra no. 28/4, ad-measuring 250 Sq. Yards situated in the revenue estate of village Kakrola, New Delhi, presently known as Mohit Nagar, Kakrola, New Delhi (hereinafter, called the 'suit property') which is shown as "red in colour" in the site plan. It is further averred that, the plaintiff is a Government contractor and due to his busyness, he executed a special power of attorney dated 10.09.2013 in favour of Sh. Madanjit Singh for filing the present suit and pursuing the same on behalf of plaintiff. It is further averred that, after purchasing the suit property by the plaintiff, the same was looked after by Sh. Madanjit Singh in the absence of the plaintiff as he is residing nearby the suit property and Sh. Madanjit Singh used to visit the suit property within an interval of week or 10 days.
3. It is further averred that, the suit property initially belonged to Sh. Balbir Singh, Sh. Sukhbir Singh, Sh. Bhagat Singh and Sh. Tej Ram all sons of Sh. Chander Singh R/o village Kakrola, New Delhi. It is further averred that, they sold the same to Sh. Daya Nand S/o Sh. Nand Lal R/o village Kakrola by executing agreement to sell, General Power of Attorney, affidavit etc. all dated 22.10.1986 for the sale consideration of Rs.8,000/-. It is further averred that, Sh. Daya Nand sold the same to Sh. H.D. Bhalla S/o Sh. Sh. Sukh Dev Singh R/o H.NO.33-I, Surbha Nagar, Ludhiana by executing agreement to sell, GPA, receipt and Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 3 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:33 +0530 affidavit etc. all dated 16.8.1990 for a sum of Rs.35,000/-. The receipt dated 16.8.1990 is also got registered before the Sub Registrar being document no.38469 dated 16.8.1990. It is further averred that, Sh. H.D. Bhalla sold the suit property to Sh. Raj Kumar s/o Sh. Daya Nand R/o E
143. Sect.-1. Papan Kalan, New Delhi, by executing agreement to sell, GPA, affidavit and receipt all dated 3.7.2004. It is further averred that, Sh. Raj Kumar S/o Sh. Daya Nand sold the suit property to Sh. Rampat S/o Late Sh. Bishan Singh R/o H. No.205, village & post office Nawada, New Delhi and Sh. Yogesh Kumar S/o Sh. Sardar Singh R/o 208, village & post office Nawada, New Delhi, by executing agreement to sell, GPA, affidavit and receipt dated 10.5.2007 for the sale consideration of Rs.2,50,000/- and also handed over the possession of the suit property on the spot and also executing the possession letter in his favour. It is further averred that, Sh. Rampat S/o Late Sh. Bishan Singh and Sh.
Yogesh Kumar S/o Sh. Sardar Singh sold the suit property to the plaintiff by executing agreement to sell, GPA, affidavit, receipt, possession letter and Wills all dated 10.3.2008 for the sale consideration of Rs. 4 Lacs and after executing the said documents in favor of the plaintiff, they handed over the actual physical possession of the suit property to the plaintiff and plaintiff came in actual physical possession of the suit property.
4. It is further averred that, at the time of purchasing the suit property by the plaintiff, the suit property consists of a room which is shown yellow in colour in the site plan with boundary wall as shown in the site plan. It is further averred that, suit property is situated in an unauthorized colony known as Mohit Nagar, Kakrola, New Delhi which is subject matter of regularization and as such the purchase of the suit Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 4 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:42 +0530 property by the plaintiff from its previous owner namely Sh. Rampat and Sh. Yogesh Kumar by way of agreement to sell coupled with GPA and other documents is a valid mode of transfer. Thereafter, the plaintiff was in peaceful possession of the suit property upto April 2012. It is further averred that, the plaintiff is residing at Block C-1, Janakpuri, New Delhi, which is 8-10 KMs away from the suit property. After purchasing the suit property, the plaintiff locked the room and main gate of the suit property and kept on visiting the suit property after the interval of 2-3 months. It is further averred that, adjacent to the suit property there is another plot of Sh. Chaman Lal Kakkar, S/o Late Sh. Ganga Ram R/o Plot no. 9, Ashoka Creacent Road, DLF Phase-1, Gurgaon, Haryana, which is shown as green in colour in the site plan.
5. It is further averred that, initially the plot no. 48 comprising of khasra no. 28/4, situated in the revenue estate of village Kakrola, New Delhi, presently known as Mohit Nagar, Kakrola, New Delhi, was ad- measuring 477 Sq. Yds which is clearly shown as red green in colour in the site plan and also shown in the lay-out plan of colony Mohit Nagar, Kakrola, New Delhi. Out of the said 477 Sq Yards of the plot, the plot ad-measuring 227 Sq. Yards is towards the Southern side as shown green in colour in the site plan was purchased and belongs to Sh. Chaman Lal Kakkar and the remaining part of the said plot ad-measuring 250 Sq yards towards the Northern side, shown as red in colour in the site plan was purchased by the plaintiff and same belongs to the plaintiff. It is further averred that, nearby the suit property there is a Salhakul Mandir and the defendant claimed himself as owner of the said Mandir and he is the self-styled Guru of the said Mandir. It is further averred that, in the Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 5 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:47 +0530 year 2008, the defendant and his persons who claimed to be the disciple of the said temple had constructed the temporary Chulhas over the suit property behind the back and without the consent of the plaintiff and in the plot of Sh. Chaman Lal Kakkar for the purpose of distribution of Langar / community kitchen. When the attorney of the plaintiff namely Sh. Madanjit Singh visited the suit property and raised the objection, then the defendant and said disciples of the above said temple promised and assured to remove the same within 2 days and same was removed.
6. It is further averred that, in the month of January 2012, the defendant and his persons again constructed the Chulhas over the suit property and in the plot of Sh. Chaman Lal Kakkar. It is further averred that, when the above said attorney of the plaintiff namely Sh. Madanjit Singh and Sh. Chaman Lal Kakkar requested the defendant and his persons, they started a quarrel and abused Sh. Madanjit Singh and Sh. Chaman lal Kakkar and did not remove the said Chulhas. It is further averred that, in the month of April 2012, there was a Bhandara in the above said temple. It is further averred that, in the intervening night of 01.04.2012, the defendant and his persons removed the old separated middle wall which was between the suit property and the plot of Sh. Chaman Lal Kakkar which has been shown as red dotted line in the site plan and illegally and unauthorizedly took the possession of the suit property and the plot of Sh. Chaman Lal Kakkar. It is further averred that, that in the month of April 2012, when the plaintiff and his attorney Sh. Madanjit Singh met with the defendant and requested him to vacate the suit property, defendant told them that in the month of April-May 2012, some function of the temple was to be held and after completion of Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 6 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:42 +0530 the said function, he shall vacate the suit property and also assured that he shall reconstruct the middle separating wall which had been demolished by him and believing the defendant, plaintiff had not taken any action against the defendant to get the suit property vacated from the defendant at that time. However, defendant kept avoiding the request of plaintiff on one pretext or the other and did not vacate the suit property.
7. It is further averred that, in the month of December 2012, the defendant and other disciples of the Salhakul Mandir installed the tin- sheds over the suit property and also over the plot of Sh. Chaman Lal Kakkar as shown in the site plan and also put mud in both the said plots.
It is further averred that, when the attorney of the plaintiff Sh. Madanjit Singh and Sh. Chaman Lal Kakkar tried to stop the defendant and his disciples, Sh. Madanjit Singh and Sh. Chaman Lal Kakkar were threatened by the defendant and his disciples with dire consequences. In this regard, Sh. Sh. Chaman Lal Kakkar lodged an F.I.R before Police Station Dwarka (North), being F.I.R No. 300/2012 dated 31.12.2012, U/s 448/506/34 I.P.C.
8. It is further averred that, defendant who is the self styled Guru of the Salhakul Mandir has illegally and unauthorizedly trespassed over the suit property in the intervening night of 01.04.2012, and is in illegal and unauthorized possession of the suit property. The defendant has no right, title and interest of any kind over the suit property and has no right to retain the possession of the suit property. It is further averred that, in the month of March 2013, the plaintiff and Sh. Madanjit Singh requested the defendant to remove the tin-sheds which have been Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 7 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:38 +0530 illegally and unauthorizedly installed by the defendant over the suit property and to vacate the suit property but the defendant did not pay any heed to the request made by the plaintiff and Sh. Madanjit Singh and has still been illegally and unauthoriseldy retaining the possession of the suit property. It is further averred that, the defendant has no right, title and interest to remain in possession of the suit property which is owned by the plaintiff by virtue of the above said documents dated 10.03.2008 executed by the previous owner of the suit property in favour of the plaintiff. The defendant who has illegally and unauthorizedly occupied the suit property since 01.04.2012 is liable to pay the damages for illegal and unauthorized use and occupation of the suit property. The plaintiff assessed the said damages @ of Rs. 20,000/-per month. It is further averred that, since 01.04.2012, the defendant is in illegal and authorized occupation of the suit property, hence from 01.04.2012, till vacating of the suit property by the defendant and hand over the vacant possession of the suit property to the plaintiff, the defendant is liable to pay damages @ of Rs. 20,000/- to the plaintiff.
9. It is further averred that, even if the above said documents relied upon by the plaintiff are not treated as titled documents by this Hon'ble Court, then also the plaintiff is entitled to recover the possession of the suit property from the defendant in as much as the plaintiff was in prior settled and peaceful physical possession of the suit property and the plaintiff has been dispossessed by the defendant illegally, unlawfully without following due process of law and without any right as such the plaintiff is entitled for recovery of possession of the suit property based on his prior possession over the suit property. It is further averred that, Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 8 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:34 +0530 the plaintiff if defendant succeeds in creating any third party interest in the suit property, then the plaintiff will suffer irreparable loss and injury and there is a chance of multiplicity of litigation and that except to approach this Hon'ble Court the plaintiff has no efficacious remedy.
10. In his WS, defendant stated that, the present suit filed by the Plaintiff against the suit of the Plaintiff is not maintainable and same may be dismissed because the Plaintiff has admittedly not shown the possession of the disputed property at any point of time after purported purchase and no document such as electricity bill, election 1-card, ration card etc. has been placed on record to substantiate that the Plaintiff at any point of time had resided and possessed the suit property. It is further stated that the plaintiff has no locus standi to file the instant suit, as the plaintiff has not raised any dispute in the suit, about the property owned and possessed by the Defendant as the plot number and plot size of purported suit property of the Plaintiff is different than the property owned and possessed by the Defendant and, thus, the instant suit is liable to be dismissed, as continuance of this suit will be gross abuse of the process of law. It is further stated that the Plaintiff's purported suit property is plot No.48, falling in Khasra No.28/4 situated in the revenue estate of Village Kakrola, New Delhi presently known as Mohit Nagar, Kakrola, New Delhi, admeasuring 250 sq. yds., whereas, the Defendant's property is situated at Plot No. 49, falling in Khasra No.28/4, situated in the revenue estate of Village Kakrola, New Delhi presently known as Mohit Nagar, Kakrola, New Delhi admeasuring 400 sq. yds. It is further stated that, the Plaintiff has no documentary evidence to show that he is the owner and ever held the possession of plot No.49, falling in Khasra Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 9 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:36 +0530 No.28/4, situated in the revenue estate of Village Kakrola, New Delhi presently known as Mohit Nagar, Kakrola, New Delhi admeasuring 400 sq. yds. According to Plaintiff's own submissions in the plaint, he is purported owner of plot No.48 not the plot No. 49 in the Colony ibid. It is further stated that, the Plaintiff has admittedly not shown the possession of the suit property at any point of time, since the alleged purchase of the property and to substantiate his claim of possession. The Plaintiff has not filed even a single document on record to prove on which date, he has come in the possession of the suit property.
11. It is further stated that, the present suit of the Plaintiff is hit by limitation clause as provided under Limitation Act, 1963 and is time barred and liable to be dismissed with cost. It is further stated that, the instant suit of the Plaintiff is not maintainable and liable to be dismissed, as the Plaintiff has attempted to use FIR No.300/2012 dated 31.12.2012 U/s 448/506/34 IPC which was lodged by Shri Chamanlal Kakkar S/o Late Shri Ganga Ram (who is not the party in the instant suit) in connivance and collusion with the Plaintiff, to execute preplanned conspiracy, to make a ground to file the instant suit against the Defendant before the Hon'ble Court and grab the property of the Defendant. It is further stated that, the ground on which the said FIR has been filed against the Defendant by Chamanlal Kakkar S/o Shri Ganga Ram is not sustainable and tenable ground as Shri Chamanlal Kakkar is not the Plaintiff and Plaintiff is not the Complainant of the said FIR. It is further stated that, the title document placed on record by the Plaintiff in respect of suit property are GPA. and Agreement to Sell that too are unregistered and notarized document, which are not valid title document for transfer Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 10 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:36 +0530 of property, as held by the Hon'ble Supreme Court of India in case of Suraj Lamp & Industries Pvt. Ltd. Versus State of Haryana. It is further stated that, the Plaintiff had never made any complaint to Defendant or to any Govt. Authority including the police about the alleged encroachment/ dispossession of them by the Defendant from the subject property, from the purported date of purchase to the date of filing this suit. It is further stated that, the story disclosed by the Plaintiff in the instant plaint is a concocted story, foundation of which is laid down on forged fraudulent, fictitious documents, fabricated and created by the Plaintiff to grab the Defendant's property, which falls flat as per their own admissions and commissions/omissions. It is further stated that, the suit of the Plaintiff is not maintainable and is liable to be dismissed as it has been filed without proper court fee. The market value of the subject property is approx. Rs. 2 crores.
12. It is further stated that, the Defendant is legitimate owner of plot No.49, falling in Khasra No.28/4, situated in the revenue estate of Village Kakrola, New Delhi presently known as Mohit Nagar, Kakrola, New Delhi admeasuring 400 sq. yds. and is in continuous possession since 5th April, 1986 to till date, which is not under dispute in the instant suit, whereas, in the suit, the disputed property is plot No.48 in Khasra No.28/4. It is further stated that, the instant suit of the Plaintiff is not maintainable and liable to be dismissed, as Smt. Norati Devi purchased plot No.49, falling in Khasra No.28/4, situated in the revenue estate of Village Kakrola, New Delhi presently known as Mohit Nagar, Kakrola, New Delhi admeasuring 400 sq. yds. from Shri Sukhbir Singh and Shri Balbir Singh, both sons of Shri Chander R/o Village Kakrola, New Delhi Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 11 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:39 +0530 vide Deed of Agreement and General Power of Attorney both dated 27.02.1986 and acquired the possession of the said plot on 27.02.1986 itself. On 5th April, 1986, Smt. Norati Devi handed over possession of aforesaid plot No.49, to the Defendant for the use of temple.
13. It is further stated that, on 18th April, 1986, Ram Navmi Mela and Celebration organized by Sulhakul Temple first time took place at said plot No.49, as per wish of Smt. Norati Devi. Since then, the plot is in continuous possession and use of temple trust of the Defendant and every year during Chaitra Navratra and Ram Navmi festival is celebrated and Mela is held at the said plot. During the rest of part of year also the said plot is regularly used by Temple Trust for temple related activities and gathering of the devotees of the temple trust. It is further stated that, till her life time i.e. upto year 1998 Late Sant. Norati Devi participating in Ram Navmi celebration managed by temple trust at the said plot No.
49. It is further stated that, Smt. Norati Devi bequeathed the plot No.49, falling in Khasra No.28/4, situated in the revenue estate of Village Kakrola, New Delhi presently known as Mohit Nagar, Kakrola, New Delhi admeasuring 400 sq. yds. to the Defendant, vide Will Deed dated 31.12.1997 which was duly registered with the Office of Sub Registrar, Seelampur Shahdara, Delhi vide registration No.61505, in additional book No.IV, volume No.4771 on pages 28 and 29 executed by Smt. Norati Devi wife of Late Shri Ramji Dass resident of 1220, Subhash Road, Gandhi Nagar, Delhi-110031. Alongwith Will, the Testator Smt. Norati Devi executed General Power of Attorney dated 31.12.1997 in favour of the Defendant which was duly registered with the office of Sub Registrar, Seelampur, Shahdara, Delhi vide registration No. 58403 in Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 12 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:46 +0530 additional book No.3, volume No. 258 on pages 68 and 69. Copies of Will and G.P.A. both dated 31.12.1997 executed by Smt. Norati Devi wife of Late Shri Ramji Dass.
14. It is further stated that, Defendant became owner of property bearing No. 49, falling in Khasra No. 28/4, situated in the revenue estate of Village Kakrola, New Delhi presently known as Mohit Nagar, Kakrola, New Delhi admeasuring 400 sq. yds., by virtue of registered Will Deed dated 31st day of December, 1997 on 11.09.1998 after the death of Smt. Norati Devi and that the possession of the said plot No.49 remained in continuous possession of the Defendant from 5th April, 1986 to till date. In parawise reply, defendant has denied the entire contents of plaint.
15. Replication to the written statement of defendants was filed on behalf of the plaintiff, thereby, reiterating and reaffirming the contents of the plaint.
ISSUES
16. On the basis of pleadings of parties, following issues were framed by Ld. Predecessor of this Court vide order dated 25.05.2016 :-
i. Whether the suit is bad for non-joinder of necessary parties?OPD ii. Whether the suit property of the plaintiff is different from the property owned and purchased by the defendant? OPD iii. Whether the plaintiff is entitled to decree of possession with respect to plot no. 8 out of khasra no. 28/4, ad measuring 250 sq. Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 13 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:43 +0530 Yds situated in the revenue estate of village Kakrola, New Delhi? OPP iv. Whether the plaintiffs are entitled to decree of damages/mesne profits for sum of Rs. 3,40,000/-, if so, at what rate and for what period?OPP v. Whether the plaintiff is entitled to a decree of permanent injunction? OPP vi. Relief.
EVIDENCE GIVEN BY PARTIES
17. In support of its case, plaintiff examined six witnesses. PW1 Sh. Madanjit Singh, s/o Sh. Late Lakhjeet Singh, R/o 341, Nav Sansad Vihar, Sector-22, New Delhi tendered his evidence by way of affidavit Ex.PW 1/1 and relied upon the following documents:
Sl. Particulars of Documents Exhibits/Mark No.
1. Site Plan Ex. PW-1/1
2. Special Power of Attorney Ex. PW-1/2
3. Original GPA, Deed of Agreement, Ex. PW-1/3 (Colly) Affidavit and Receipt, all dated 22.10.1986
4. Original GPA, Agreement to Sell, Ex. PW-1/4 (Colly) Affidavit, all dated 16.08.1990
5. Copy of receipt Mark A
6. Original GPA, Agreement to Sell, Ex. PW-1/5 (Colly) Affidavit, WILL, Possession Letter and Receipt, all dated 03.07.2024
7. Original GPA, Agreement to Sell & Ex. PW-1/6 (Colly) Purchase, Affidavit, Receipt, WILL and Possession Letter, all dated 10.05.2007 Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 14 of 40 M JAIN Date:
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8. Original GPA, Agreement to Sell, Ex. PW-1/7 (Colly) Affidavit, Receipt, Possession Letter, Two WILLs, all dated 10.03.2008
9. Copy of Cheques Mark B
10. Copy of FIR No. 300/12 Mark C PW1 was cross-examined by Ld. Counsel for defendants at length and discharged.
18. PW-2 Sh. Satbir Singh S/o late Sh. Bihari Lal, Aged 59 Years, R/o B-302, Rurdra Apartments, Plot No. 12, Dwarka, New Delhi tendered his evidence by way of affidavit Ex. PW2/A. He was cross- examined by Ld. Counsel for defendants and discharged.
19. PW-3 Sh. Yogesh Gahlot, S/o Sh. Sardar Singh, Aged about 45 Years, R/o 4 & 5, Nawada Extn., Uttam Nagar, New Delhi-110059 and also at 208, Nawada Village, Uttam Nagar, New Delhi-110059 tendered his evidence by way of affidavit Ex. PW3/A. He relied upon the documents already Ex. PW1/6 and Ex.PW1/7. PW3 was cross-examined by Ld. Counsel for defendants and discharged.
20. PW-4 Sh. Jaibeer Singh S/o Sh. Ram Rikh, aged about 61 Years, R/o RZ-F-87, Vishwas Park, Uttam Nagar, New Delhi-59 tendered his evidence by way of affidavit Ex. PW4/A. He relied upon the documents i.e. GPA, Agreement to Sell and Affidavit already Ex. PW1/4 (Colly) already exhibited/proved in the deposition of PW1 and document i.e. Receipt already marked as Mark A. PW4 was cross-examined by Ld. Counsel for defendants.
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21. PW-5 Sh. Raj Kumar S/o late Sh. Daya Chand, Aged about 55 Years, R/o A-1/103, Madhu Vihar, Uttam Nagar, New Delhi-110059 tendered his evidence by way of affidavit Ex. PW5/A. PW5 was cross- examined by Ld. Counsel for defendants and discharged.
22. Thereafter, plaintiff closed its evidence and the matter was listed for defendant's evidence.
23. Four witnesses were examined on behalf of defendant in support of his defense. DW1 Sh. Devender Kumar son of late Sh. Umed Singh, aged about 49 Years, R/o H. No. 1323, Sector-7, Bahadurgarh, Distt., Jhajjar, Haryana-124507 tendered his affidavit Ex.DW1/A and he relied upon the following documents:
Sl. No. Particulars of Documents Exhibits/Mark
1. Copy of Special Power of Attorney dated Ex. DW1/1 (OSR) 02.01.2019 executed by Sh. Baba Avtar Singh in favour of deponent (Devender Kumar)
2. Original Authority letter dated 13.02.2019 Ex.DW1/2
3. Original site plan of the property of DW1/3 defendant
4. Original Khatonis of village Kakrola Delhi Ex. DW1/4 (Colly) of year 2003-04
5. Original GPA, Deed of Agreement, Ex. DW1/5 (Colly) Affidavit, Receipt and Deed of Will all dt.
27.02.1986
6. Original Will dated 31.12.1997 Ex. DW1/6
7. Original GPA dated 31.12.1997 Ex. DW1/7 Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 16 of 40 M JAIN Date:
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8. Photographs of function showing various Ex. DW1/8 (Colly);
religious activities at Plot no. 49
9. Original death certificate of Smt. Norati Ex. DW1/9 Devi
10. Certified copy of statement of Mr. Ex. DW1/10 Dayanand S/o. Sh. Nand Lal in FIR No. 300/2012
11. Certified copies of documents dated Ex. DW1/11 (Colly.) 23.04.2013
12. Certified copy of statement of plaintiff Ex.DW1/12 recorded in the Court of Sh. Sankalp Kumar, the then Ld. MM, Dwarka Court, Delhi DW1 was cross-examined by Ld. Counsel for plaintiff and discharged.
24. DW-2 Sh. Mam Chand So Sh. Mangal Ram, R/o House No. 50, Mohit Nagar Kakrola, Delhi 110078, now residing at House No. 16 in front of (West side) of plot no.49 Mohit Nagar, New Delhi tendered his evidence by way of affidavit Ex.DW2/A and also relied upon photocopy of Adhar Card Ex.DW2/1 (OSR). DW2 was cross-examined by Ld. Counsel for plaintiff and discharged.
25. DW-3 Sh. Pushpam Sardana S/o Sh. Desh Raj Sardana, R/o House No. C-5A/141, Janak Puri, New Delhi-110018 tendered his evidence by way of affidavit Ex.DW3/A and also relied upon document already Ex.DW1/3 and further stated that the signature of Draftsman Sh. Sunder Singh is already at point A on Ex. DW-1/3. DW3 was cross- examined by Ld. Counsel for plaintiff and discharged.
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26. DW4 Sh. Raju Singal S/o late Sh. LN, Singal, R/o House No. 197-198, 3rd floor, Pocket 6, Sec. 24, Rohini, Delhi tendered his evidence by way of affidavit Ex.DW4/A and relied upon photocopy of Adhar Card which is Ex.DW4/1. He further relied upon the documents already Ex. DW-1/6, Ex. DW-1/7 and Ex. DW-1/8 (colly). DW4 was cross-examined by Ld. Counsel for plaintiff and discharged.
27. Thereafter, DE was closed and matter was listed for final arguments.
SUBMISSIONS OF THE PARTIES
28. Ld. Counsel for plaintiff submitted that as per record there were 4 bhumidars qua suit property i.e. Baldev Singh, Balbir Singh, Sukhbir Singh and Tej Singh. It is further submitted that all 4 bhumidars executed title documents in favour of Dayanand on 22.10.1986 who in turn executed title documents in favour of Sh. H D Bhalla on 16.08.1990. It is further submitted that Sh. H D Bhalla further executed title documents in favour of Raj Kumar on 03.07.2004 who in turn executed in favour of Yogesh Kumar and Rampat on 10.05.2007 and finally title document executed in favour of plaintiff on 10.03.2008. Ld. Counsel for plaintiff further submitted that defendant has no title, interest or right qua suit property in his favour. It is submitted that the entire defence of the defendant is based on the WILL 31.12.1997 alleged to be executed by late Smt. Naroti Devi. It is further submitted that Smt. Naroti Devi in fact does not have any title in her favour qua suit property as title documents in favour of Smt. Naroti Devi has no legal sanctity in the eye of law being executed by 2 bhumidars only and that's too with respect to Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 18 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:39 +0530 plot no. 49 admeasuring 400 sq. yds only i.e. different from the suit property. It is further submitted that, alledged Will executed only with respect to one property No. 1220, Old No. 416, measuring 240 sq yds out of Khasra No. 59, Khewat No. 2, Gandhi Nagar, Village Seelmapur, Shahdara, Delhi - 110031 and not w.r.t. plot no. 49, admeasuring 400 sq yds in Village Kakrola.
29. It is further submitted that disciple of Baba Avtar Singh trespassed the suit property on 01.04.2012 by breaking boundary wall against which specific FIR no. 300/2012 was lodged to which plaintiff was the witness. It is further submitted that in entire WS defendants nowhere claimed ownership qua suit property i.e. Plot No. 48, hence decree may be passed in favour of plaintiff. It is further submitted that all PWs duly corroborated with the claim of the plaintiff and also proved the title documents in favour of plaintiff.
30. Ld. Counsel for the plaintiff also submitted that the defendant failed to discharge his onus. It is further submitted that late Smt. Naroti Devi does not hold any document in her favour qua suit property and defendant neither able to prove possession nor site plan hence decree may be passed. Lastly, it is submitted that, there is material discrepancy in the testimony of DWs hence, same can't be relied upon. Ld. Counsel for the plaintiff relied upon following judgments in support of his contention.
a) O.P. Aggarwal & Anr. vs. Akshay Lal & Ors. RFA No. 127/2004 dt. 15.03.2012;
b) Bimla Chopra & Anr. vs. Kuldeep 2023 SCC OnLine Del 2669;
c) Arbinder Singh Kohli & Anr. vs. Gobind Kaur Kohli 2018 SCC OnLine Del 9663;
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JAIN 2025.01.21 17:03:35 +0530
d) Komal & Ors. vs. Panchi Devi 2018 SCC OnLine Del 7151;
e) Ashish Kumar vs. Hari Kishan 2015 SCC OnLine Del 14059;
f) Jagdish v. Shri Krishan S/o Late Sh. Banwari Lal & ors. Suit no.
178/11 dt. 13.06.2012
31. Per contra, Ld. Counsel for defendant vehemently opposed the claim of the plaintiff. It is submitted that plaintiff could neither prove his possession nor any right, title or interest qua suit property, hence present suit may be dismissed with heavy costs. It is also submitted that defendant is the exclusive owner of the suit property by virtue of registered WILL executed by late Smt. Naroti Devi being owner of the suit property. It is further submitted that plaintiff has given wrong description of the plot as there is no plot with the number 48 rather it is plot no. 49 i.e. owned by defendant only. It is further submitted that testimony of PW1 is not reliable as same has been given merely in capacity of SPA and plaintiff never came for deposition. It is further submitted that as per his own version plaintiff already sold suit property to third person on 23.04.2013 vide DW1/11, hence he has no locus in present suit.
32. In rebuttal, ld. Counsel for the plaintiff submitted that onus of issue no. 2 was upon defendant which he failed to discharge. It is further submitted that, there is material contradictions in the testimony of DWs, hence there credibility is in doubt. It is further submitted that testimony of criminal matter cannot be relied upon. It is further submitted that although plaintiff executed Agreement to Sell dated 23.04.2013 but the same is beyond the pleadings and does not create any right in favour of other person.
Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 20 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:30 +0530 ISSUEWISE ANALYSIS AND FINDINGS ISSUE NO. 1- Whether the suit is bad for non-joinder of necessary parties? OPD
33. It is settled law that, no suit shall be defeated by reason of misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.1
34. Hon'ble Supreme Court of India in the matter of Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and Others2 held as follows:
8. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief.
Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:
"Court may strike out or add parties. (2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as 1 Order I Rule 9 CPC 2 (2010) 7 SCC 417 Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 21 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:38 +0530 plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
35. In present matter, Plaintiff is claiming to have purchased suit property vide notarized GPA/Agreement to sell/Receipt/Will dated 10.03.2008 from Yogesh Kumar and Rampat who purchased the same from erstwhile owner i.e. Raj Kumar, who also purchased the same from H D Bhalla on 03.07.2004. While HD Bhalla purchased the same from Dayanand who originally purchased suit property from four Bhoomidars on 22.10.1986. Onus of this issue is upon defendant but, except making bald averment in the Written Statement, no argument/evidence/material brought on record in support of his contention. Thus, present suit can't be held bad for misjoinder of the necessary and proper parties. Hence, this issue decided in favour of plaintiff.
ISSUE No. 2: Whether the suit property of the plaintiff is different from the property owned and purchased by the defendant? OPD ISSUE No. 3: Whether the plaintiff is entitled to decree of possession with respect to plot no. 8 out of khasra no. 28/4, ad measuring 250 sq. Yds situated in the revenue estate of village Kakrola, New Delhi? OPP
36. As both issue no. 1 and 2 are interlined hence, adjudicated simultaneously.
Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 22 of 40 M JAIN Date:
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37. In fact, these are main issues in present case and most crucial one. Not only the description of plot number but, surrounded boundaries are different. Since plaintiff and defendant are claiming two set of chain for suit property, same is reproduced herein for the purpose of clarity:
PLAINTIFF'S VERSION Description Plot bearing no. 48, ad-measuring 250 sq. yards (30' X 75') comprising in khasra no.28/4 situated in village Kakrola, Delhi presently known as Mohit Nagar, Kakrola, New Delhi, most specifically shown in red in colour in the site plan (herein after referred as 'Property A') Original Balbir Singh, Sukhbir Singh, Bhagat Singh and Tej Ram Bhumidari all son of Sh. Chander Rights Boundaries Main Road 20 Road 20 Ft. Other's Dwarka Ft. Wide Wide Property Road (East) (West) (North) (South) SITE PLAN (Ex.PW1/1) Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 23 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:31 +0530 Plaintiff's Chain Balbir Singh, Sukhbir Singh, Bhagat Singh and Tej Ram all son of Sh. Chander (Bhumidars) Daya Nand vide unregistered/Notarised GPA, Deed of Agreement, Affidavit, Receipt all dated 22.10.1986 H D Bhalla vide unregistered/Notarised GPA, Agreement to sale , Affidavit and registered Receipt all dated 16.08.1990 Raj Kumar vide unregistered/Notarised GPA, Agreement to sell, Affidavit, Receipt, Poseesion Letter and Will all dated 03.07.2004 Rampat and Yogesh Kumar vide unregistered/Notarised GPA, Agreement to sell and purchase, Affidavit, Receipt and Deed of Will all dated 10.05.2007 S B Aggarwal (Plaintiff) vide unregistered/Notarised GPA, Agreement to Sell, Affidavit, Receipt, Poseesion Letter and Will all dated 10.03.2008 DEFENDANT'S VERSION Description Plot bearing no. 49, ad-measuring 400 sq. yards comprising in khasra no.28/4 situated in village Kakrola, Delhi presently known as Mohit Nagar, Kakrola, New Delhi (herein after referred as 'Property B') Original Balbir Singh and Sukhbir Singh both son of Sh.
Bhumidari Chander
Rights
Boundaries Plot No. 50 Road 20 Other Land Road 20 Ft
(East) Ft. (West) (North) (South)
Digitally
signed by
SHILPI SHILPI M
CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 24 of 40 M
JAIN
Date:
JAIN 2025.01.21
17:03:37
+0530
Site Plan
(Ex.DW1/3)
Defendant's
Balbir Singh and Sukhbir Singh
both sons of Sh. Chander
Chain (Bhumidars)
Norati Devi vide
unregistered/Notarised GPA,
Deed of Agreement, Affidavit,
Receipt all dated 27.02.1986
HH Sant Shri Avtar Singh
(Defendant) vide registered
Will dated 31.12.1997
38. It is well settled law that "Sale" is a transfer of ownership in exchange for a price paid or promised and said transfer can be made only a registered instrument.3 But, none of the parties are claiming ownership 3 Section 54, Transfer of Property Act Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 25 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:32 +0530 by virtue of any registered Sale Deed. Hon'ble Supreme Court in Suraj Lamp & Industries Private Limited V State of Haryana & another 4, referred to the ill - effects of sales through General Power of Attorney or Sale Agreement/General Power of Attorney/Will transfers (for short `SA/GPA/WILL' transfers) and observed that there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and Will.
39. Further, in present matter both parties have different sets of chain and plot numbers. But, somehow both chains carries common link i.e four bhumidars namely Balbir Singh, Sukhbir Singh, Bhagat Singh and Tej Ram all son of Sh. Chander. Plaintiff's chain originated from all four bhumidars while defendant's chain originated with Balbir Singh, Sukhbir Singh and Bhagat Singh only. Although one 'Nakal Khatoni' relied upon by defendant as Ex. DW1/4 during evidence for Khasra No. 28/4 but, same doesn't bear any specific description either of property. In any case, no revenue record in favour of four bhumidars for suit property produced by plaintiff. It is settled law that, no can transfer better title one has. Main question is whether suit property ever exist in the name of four bhumidars and if so, legal issue which needs judicial consideration and determination is that whether Power of Attorney, Agreement to Sale and other documents constitute valid transfer of the immovable property in absence of execution of sale deed.
40. In Anil Rishi v. Gurbaksh Singh5 Hon'ble Supreme Court of India discussed law on onus and burden of proof in following terms:4
2009 (7) SCC 363 5 (2006) 5 SCC 558 Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 26 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:40 +0530 "8. The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:
"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."
9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
XXXXXX
15. Section 111 of the Evidence Act will apply when the bona fides of a transaction is in question but not when the real nature thereof is in question. The words "active confidence" indicate that the relationship between the parties must be such that one is bound to protect the interests of the other.
XXXXXXX
19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 27 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:35 +0530 proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later, (ii) to make that of establishing a proposition as against all counter- evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same."
(emphasis is mine)
41. Since plaintiff is claiming relief of possession qua suit property on the basis of Exh. PW1/7 (Colly) he must prove that, he was in settled possession as on date of cause of action. If he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. But, no such onus discharge by plaintiff.
42. Order VII Rule 3 CPC provides that, where the subject-
matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 28 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:44 +0530 settlement or survey, the plaint shall specify such boundaries or numbers.
43. Be that as it may, when the suit is filed for he possession immovable property, the plaintiff is required to take care to comply with Order VII Rule 3 of the Code of Civil Procedure so as to describe the suit property which is subject-matter of the suit sufficiently so as to identify appropriately with boundaries thereof. The plaintiff must be careful to describe the property by its boundaries, Survey Number with area mentioning the boundaries on North, East, West and South of the suit property. But, present plaint and site plan lacks said description.
44. Record reveals that, vide order dated 28.10.2024, at request of parties, this court appointed Local Commissioner for clarification on site plan. Ld. Local commissioner produced following site plan:
45. Although, Ld. counsel for plaintiff vehemently opposed above site plan but, the fact that, plaintiff failed to produce any material on Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 29 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:45 +0530 record which is sufficient to identify the suit property can't be overlooked. During the course of argument, Ld. counsel for plaintiff submitted that initially, the plot no. 48 was ad-measuring 477 sq. yards and later on two plots were carved out from the said plot, the plot ad- measuring 250 sq. yards from northern side was purchased by plaintiff and plot ad-measuring 227 sq. yards from southern side was purchased by Chaman Lal Kakkar. However, this submission is not only contrary to the site plan relied upon by the plaintiff but, also in contradiction to the suggestion given to DW1 during his cross examination. In his replication, plaintiff submitted that, plot no. 49 in Khasra no. 28/4 is separate and distinct property as shown in the site plan filed by the plaintiff. But, Ex.PW1/1 reveals plot no. 48 (admeasuring 250 sq yds) and adjacent to other portion (admeasuring 227 sq yds) while plot no. 49 clearly boundaried. Even otherwise size of plot no. 49 is shown as less than so called northern side of plot no. 48. In cross examination, plaintiff suggested DW1 that plot no. 49 pertains to Chaman Lal Kakkar which is contrary to his own claim. Further, date, time or place of said bifurcation of 477 sq yds plot not disclosed. In any case, plaintiff claimed to have purchased suit property in the year 2008 vide notarized GPA/Agreement to sell/Affidavit/Receipt dated 10.03.2008 which is claimed to be the part of chain document started from similar set of documents dated 22.10.1986 claimed to executed by four bhumidars but, even said documents bears detail of plot no. 48 admeasuring 250 sq. yards only. As such, testimony given by plaintiff don't corroborate with the submission made by plaintiff. Further, plaintiff never chosen to depose before this court in personal capacity rather, one Sh. Madanjit Singh deposed as PW1 being SPA of plaintiff vide SPA dated 10th Sep 2013.
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46. At this juncture, it would be imperative to discuss relevancy and admissibility of evidence given by Power of Attorney holder.
47. In Janki Vashdeo Bhojwani vs. IndusInd Bank Ltd.6, the Supreme Court held that the Power of Attorney holder or the legal representative should have knowledge about the transaction in question to bring on record the truth in relation to the grievance or the offence. It is further held that:
"Power of Attorney holder can depose and verify on oath before the court but he must have witnessed the transaction as an agent and must have due knowledge about it. The Power of Attorney holder who has no knowledge regarding the transaction cannot be examined as a witness. The functions of the General Power of Attorney holder cannot be delegated to any other person without there being a specific clause permitting such delegation in the Power of Attorney; meaning thereby ordinarily there cannot be any sub-delegation."
48. It is, therefore, settled in law that, Power of Attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents or about the facts that may have transpired much before the cause of action. The aforesaid Power of Attorney holder PW-1 had clearly deposed that he is giving evidence on behalf plaintiff in capacity of SPA. Relevant cross examination of PW1 is reproduced herein:
"I am civil contractor and doing the said business in Delhi, Gurgaon and Faridabad however, not in abroad.6
AIR 2005 Supreme Court 439 Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 31 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:34 +0530 XXXX It is correct that SPA Ex. PW1/2 was executed in my favour on 10.09.2013. It is correct that before the said SPA no other SPA or other authority letter or any other document pertains to suit property had been executed by S.B. Aggarwal.
XXXXX I have no blood relation or marital relation with Sh. S. B. Aggarwal, plaintiff. Sh. S. B. Aggarwal is my childhood friend but did not study in the same school. I am BA Pass. I cannot say the educational qualification of Sh. S.B. Aggarwal. I work with Sh. S. B. Aggarwal and I have business relation with him.
XXXXX It is wrong to suggest that being the property dealer I entered into a contract with plaintiff S. B. Aggarwal to grab the suit property reason why I create a false and fabricated SPA and filed the present suit. It is wrong to suggest that I have not made any complaint before any authorities pertaining to the illegal possession, encroachment or any wrongful act on the suit property. Vol: I have lodged the police complaint against defendant Baba Avtar Singh and I have also standing with Sh. Chaman Lal Kakkar when the FIR was lodged by him and I wan one of the part in the said FIR and my name is also mentioned in the said FIR. I have lodged the said police complaint in 2014-2015. It is correct that said police complaint is not filed on record. XXXXX It is correct that I was no where in the transaction of the sale and purchase of the suit property by Sh. S. B. Aggarwal, plaintiff. It is correct that I have personal knowledge in regard to the sale transaction of the suit property done by Sh. S. B.Aggarwal. It is correct that I have no knowledge of previous chain of sale purchase of suit property prior to purchase of S. B. Aggarwal. It is Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 32 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:45 +0530 incorrect that I have not made any complaint between 2008-2012 against the defendant. I have made the complaint against the defendant in 2012. I have not made any complaint prior to 2012 vol: as I was in possession of the suit property. It is incorrect to suggest that I was never in the possession of the suit property. It is further wrong to suggest that defendant was always in possession of the suit property.
XXXXX It is correct that I have not mentioned the boundary of the suit property in my affidavit in evidence Ex.PW1/1. The temple already exist prior to purchase of the suit property. I do not know defendant. Vol: I know that temple adjacent to the suit property belongs to Baba Avtar Singh, defendant. It is wrong to suggest that temple exists in the suit property. It is incorrect to suggest that khasra no.28/4 plot no.48 is ad measuring 450 sq. yds. Vol: it was 250 sq. yds. which belongs to plaintiff. It is wrong to suggest that since 30-40 years defendant has the possession of the suit property.' (emphasis is mine)
49. During cross examination PW1 not only denied to have any knowledge of any previous chain but, also claimed his own possession prior to 2012. He further claimed the total size of plot no. 48 as 250 sq yds which, negates the claim of plaintiff which says that the plot was initially admeasuring 477 sq yds and bifurcated into two parts. Hence, testimony of PW1 is under shadow being tainted and contradictory to the pleading.
50. Further, It is settled position in law that, where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy.
Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 33 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:39 +0530
51. In the case of Anathula Sudhakar v/s P. Buchi Reddy (2008) 4 SCC 594 Hon'ble Supreme Court of India specifically held as follows:
"17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)].
Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 34 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:43 +0530 court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that, question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiffs to a more comprehensive declaratory suit, depending upon the facts of the case."
52. Admittedly, no declaratory relief sought in present matter. Further, despite appointment of Local Commissioner, no sufficient material placed on record to show the description of suit property. Documents relied by plaintiff as title documents i.e. Exh. PW1/7 (Colly.) can't be terms as title documents. Directions specified in the site plan is contrary to the documents placed on record by plaintiff. For the purpose Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 35 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:35 +0530 of clarification comparative of direction as mention in documents and site plan (Exh. PW1/1) is reproduced herein below:
Directions As per GPA/ATS dated As per Site plan of 10.03.2008 (Exh. PW1/ 7 plaintiff (Exh. PW1/1) (Colly) for plot no. 48 EAST MAIN DWARKA ROAD PIPE LINE WEST ROAD 20 FT. WIDE ROAD 20 FT. WIDE NORTH ROAD 20 FT. WIDE ROAD SOUTH OTHER'S PROPERTY PART OF PLOT NO. 48 (227 SQ YDS)
53. Even otherwise, no material placed on record to show any kind possession of plaintiff or any of claimed chain holder at any point of time on the suit property. No revenue record placed on record.
54. Plaintiff examined PW2 to prove his possession. But, testimony of PW2 doesn't invite any confidence of this court. In his chief, PW2 claimed to be in possession of one plot no. 3, Sulhakul Vihar, New Delhi i.e. near to suit property. In his cross as on 14.02.2007, PW2 goes one step further and claimed to know Sh. S.B. Aggarwal i.e. plaintiff in the present case since 10-15 years as plaintiff's plot is adjacent to his plot which, in the opinion of this court is absolutely baseless as neither site plan (Exh. PW1/1) nor plaint bears any such description. PW2's deposition for plaintiff's possessory right is entirely based upon hearsay evidence only. He categorically stated that, 'I came to know that the suit property is in possession of Mr. Aggarwal as he used to say when we were sitting together.' PW2 further negate the claim of plaintiff that "after purchasing the suit property, the plaintiff locked the room and main gate of the suit property' as mentioned in the plaint rather, disposed Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 36 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:41 +0530 that the suit property does not bear any gate. Thus, testimony of PW2 is infact contradictory and beyond the pleading.
55. For the purpose of clarification, as is reproduced herein below:
'I know Sh. S.B. Aggarwal i.e. plaintiff in the present case since 10-15 years. I know him as the plot of the plaintiff is adjacent to my plot. I know Mr. Madanjeet Singh for the last 10-15 years. I know Mr. Madanjeet Singh as he used to accompany the plaintiff. I know the defendant as he visits his temple however, I am not on speaking terms with the defendant. One plot bearing no.3 Sulahkul Vihar near to the suit property belongs to me. My plot is at a distance of 2-3 plots of the temple. My date of birth is 15.07.1957. I have been visiting in and around of the suit property for about 15 years. I do not recollect about the position of the suit property at about 15 years ago. I do not recollect whether I inspected the suit property in the year 2011. There is no gate at the suit property.
Voltr. There is some tin shed at some part of the property by Mr. Aggarwal. I came to know that the suit property is in possession of Mr. Aggarwal as he used to say when we were sitting together. There was boundary wall of Mr. Aggarwal which was built in my presence. I do not visit the temple of defendant. In 2012, some persons came to Mr. Aggarwal to take permission for holding langar at the suit property in my presence. The said permission was granted by Mr. Aggarwal for langar. I know Mr. Chamanlal Kakkar who has a plot adjacent to the suit property, however. I do not know the number of his plot. In 2011, there was only a boundary and a cow was tied by the plaintiff at the suit property and nothing else was constructed. There was no wall earlier but now there is a wall. I do not recollect as to who constructed the said wall. In December 2012, the defendant was asked to vacate the suit property however, he refused to vacate the same. In the meantime also there was talk between the defendant and plaintiff for vacation of the suit plot but the same was not done. I do not recollect whether Mr. Aggarwal contacted the police at that time. I do not recollect the plot number owned by Mr. Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 37 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:45 +0530 Aggarwal. I also do not recollect as to who is the owner of plot no. 49.' (emphasis is mine)
56. Plaintiff further examined PW3 i.e. one of chain owner as per plaintiff. But, during his cross examination, he refused to have any document to show receipt of possession from erstwhile owner
57. Thus, after carefully going through the entire material placed on record and submissions made by the parties, this court is of the opinion that in the entire suit plaintiff could neither establish the clear description of the suit property nor settled possession in his favour. Hence, this issue is decided against the plaintiff.
ISSUE No. 4: Whether the plaintiffs are entitled to decree of damages/mesne profits for sum of Rs. 3,40,000/-, if so, at what rate and for what period?OPP ISSUE No. 5: Whether the plaintiff is entitled to a decree of permanent injunction? OPP
58. Since, issue no. 2 and 3 already decided against the plaintiff, in view of foregoing discussion issue no. 4 and 5 need no analysis. Hence, disposed off.
Relief / (CONCLUSION)
59. Thus, considering the facts and circumstances of the present case, material placed on record and submissions made by the parties, present suit stands dismissed for the following reasons:
Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 38 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:32 +0530
a) Subject matter of the present suit is immovable property i.e. plot no. 48 out of khasra no. 28/4, ad-measuring 250 Sq. Yards situated in the revenue estate of village Kakrola, New Delhi, presently known as Mohit Nagar, Kakrola, New Delhi (hereinafter, called the 'suit property') but, no clear description of the property, demarcation or detail i.e. sufficient to identify it, is provided in terms of Order VII Rule 3 CPC;
b) Plaintiff failed to prove his settled possession or any of erstwhile owner in the suit property;
c) Power of attorney holder can only depose about the facts within his personal knowledge and not about those facts which are within the personal knowledge of the person who he represents or about the facts that may have transpired just before the cause of action.
Hence, testimony of PW1 is under shadow being tainted and contradictory to the pleading;
d) No material placed on record by plaintiff to show that plot no. 48 was admeasuring 477 sq. yards and bifurcated into two parts and plot admeasuring 250 sq. yards from northern side was purchased by the plaintiff;
e) No declaratory relief sought by plaintiff despite cloud is raised on his title by defendant. The predicament of plaintiff was brought upon him, by failing to convert the suit to one for declaration.
60. No order as to cost.
61. Decree sheet be prepared accordingly.
Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 39 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:37 +0530 IN THE COURT OF MS. SHILPI M JAIN : DISTRICT JUDGE-05, SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI CS DJ ADJ 15631/16 CNR No. DLSW010006892016 IN THE MATTER OF:
Sh. S.B. Aggarwal S/o Late S.K. Aggarwal R/o C-1/119, Janakpuri, New Delhi Through his attorney Sh. Madanjit Singh S/o Late Sh. Lakhjeet Singh R/o 341, Nav Sansad Vihar, Sector-22, Dwarka, New Delhi ................Plaintiff VERSUS Baba Avtar Singh Salhakul Mandir Mohit Nagar, Kakrola, New Delhi. ................Defendant Date of Institution : 20.09.2013 Date of arguments : 20.11.2024 Date of judgment : 21.01.2025 SUIT FOR RECOVERY OF POSSESSION AND DAMAGES/MESNE PROFITS AND FOR PERMANENT INJUNCTION.
Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 1 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:46 +0530 JUDGMENT INDEX FACTUAL BACKGROUND ...................3 ISSUES .................13 EVIDENCE GIVEN BY PARTIES .................14 SUBMISSIONS OF THE PARTIES ................18 ISSUEWISE ANALYSIS & FINDINGS ................21 CONCLUSION .................38
1. Present suit for recovery of possession and damages/mesne profits as well as permanent injunction filed by the plaintiff against defendant with the following relief:
a) Pass a decree of possession in favour of the plaintiff and against the defendant whereby directing the defendant to vacate the suit property i.e. plot bearing no. 48, ad-measuring 250 sq. yards comprising in khasra no.28/4 situated in village Kakrola, Delhi presently known as Mohit Nagar, Kakrola, New Delhi, most specifically shown in red in colour in the site plan, and hand over the vacant physical possession of the suit property to the plaintiff;
b) Pass a decree of damages / mesne profit in favour of plaintiff and against the defendant whereby directing the defendant to pay a sum of Rs.3,40,000/- to the plaintiff being the damages / mesne profit for the illegal and unauthorized use and occupation of the suit property and further directing the defendant to pay the pende-lite and future mesne profit / damages @ Rs.20,000/- per month till handing over the vacant physical possession of the suit property to the plaintiff;
c) Pass a decree of permanent injunction in favour of the plaintiff and against the defendant whereby restraining the defendant, his servant (s), agent (s), attorney (s) etc. from raising any kind of construction over the suit property or creating a third party interest of any kind over the suit property;
Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 2 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:40 +0530
d) Award the cost of the suit in favour of the plaintiff.
e) pass any further order which this Hon'ble court may deem fit and proper in the facts and circumstances of the present case.
FACTUAL BACKGROUND:
2. It is averred that, the plaintiff is the owner of property bearing plot no. 48 out of khasra no. 28/4, ad-measuring 250 Sq. Yards situated in the revenue estate of village Kakrola, New Delhi, presently known as Mohit Nagar, Kakrola, New Delhi (hereinafter, called the 'suit property') which is shown as "red in colour" in the site plan. It is further averred that, the plaintiff is a Government contractor and due to his busyness, he executed a special power of attorney dated 10.09.2013 in favour of Sh. Madanjit Singh for filing the present suit and pursuing the same on behalf of plaintiff. It is further averred that, after purchasing the suit property by the plaintiff, the same was looked after by Sh. Madanjit Singh in the absence of the plaintiff as he is residing nearby the suit property and Sh. Madanjit Singh used to visit the suit property within an interval of week or 10 days.
3. It is further averred that, the suit property initially belonged to Sh. Balbir Singh, Sh. Sukhbir Singh, Sh. Bhagat Singh and Sh. Tej Ram all sons of Sh. Chander Singh R/o village Kakrola, New Delhi. It is further averred that, they sold the same to Sh. Daya Nand S/o Sh. Nand Lal R/o village Kakrola by executing agreement to sell, General Power of Attorney, affidavit etc. all dated 22.10.1986 for the sale consideration of Rs.8,000/-. It is further averred that, Sh. Daya Nand sold the same to Sh. H.D. Bhalla S/o Sh. Sh. Sukh Dev Singh R/o H.NO.33-I, Surbha Nagar, Ludhiana by executing agreement to sell, GPA, receipt and Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 3 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:33 +0530 affidavit etc. all dated 16.8.1990 for a sum of Rs.35,000/-. The receipt dated 16.8.1990 is also got registered before the Sub Registrar being document no.38469 dated 16.8.1990. It is further averred that, Sh. H.D. Bhalla sold the suit property to Sh. Raj Kumar s/o Sh. Daya Nand R/o E
143. Sect.-1. Papan Kalan, New Delhi, by executing agreement to sell, GPA, affidavit and receipt all dated 3.7.2004. It is further averred that, Sh. Raj Kumar S/o Sh. Daya Nand sold the suit property to Sh. Rampat S/o Late Sh. Bishan Singh R/o H. No.205, village & post office Nawada, New Delhi and Sh. Yogesh Kumar S/o Sh. Sardar Singh R/o 208, village & post office Nawada, New Delhi, by executing agreement to sell, GPA, affidavit and receipt dated 10.5.2007 for the sale consideration of Rs.2,50,000/- and also handed over the possession of the suit property on the spot and also executing the possession letter in his favour. It is further averred that, Sh. Rampat S/o Late Sh. Bishan Singh and Sh.
Yogesh Kumar S/o Sh. Sardar Singh sold the suit property to the plaintiff by executing agreement to sell, GPA, affidavit, receipt, possession letter and Wills all dated 10.3.2008 for the sale consideration of Rs. 4 Lacs and after executing the said documents in favor of the plaintiff, they handed over the actual physical possession of the suit property to the plaintiff and plaintiff came in actual physical possession of the suit property.
4. It is further averred that, at the time of purchasing the suit property by the plaintiff, the suit property consists of a room which is shown yellow in colour in the site plan with boundary wall as shown in the site plan. It is further averred that, suit property is situated in an unauthorized colony known as Mohit Nagar, Kakrola, New Delhi which is subject matter of regularization and as such the purchase of the suit Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 4 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:42 +0530 property by the plaintiff from its previous owner namely Sh. Rampat and Sh. Yogesh Kumar by way of agreement to sell coupled with GPA and other documents is a valid mode of transfer. Thereafter, the plaintiff was in peaceful possession of the suit property upto April 2012. It is further averred that, the plaintiff is residing at Block C-1, Janakpuri, New Delhi, which is 8-10 KMs away from the suit property. After purchasing the suit property, the plaintiff locked the room and main gate of the suit property and kept on visiting the suit property after the interval of 2-3 months. It is further averred that, adjacent to the suit property there is another plot of Sh. Chaman Lal Kakkar, S/o Late Sh. Ganga Ram R/o Plot no. 9, Ashoka Creacent Road, DLF Phase-1, Gurgaon, Haryana, which is shown as green in colour in the site plan.
5. It is further averred that, initially the plot no. 48 comprising of khasra no. 28/4, situated in the revenue estate of village Kakrola, New Delhi, presently known as Mohit Nagar, Kakrola, New Delhi, was ad- measuring 477 Sq. Yds which is clearly shown as red green in colour in the site plan and also shown in the lay-out plan of colony Mohit Nagar, Kakrola, New Delhi. Out of the said 477 Sq Yards of the plot, the plot ad-measuring 227 Sq. Yards is towards the Southern side as shown green in colour in the site plan was purchased and belongs to Sh. Chaman Lal Kakkar and the remaining part of the said plot ad-measuring 250 Sq yards towards the Northern side, shown as red in colour in the site plan was purchased by the plaintiff and same belongs to the plaintiff. It is further averred that, nearby the suit property there is a Salhakul Mandir and the defendant claimed himself as owner of the said Mandir and he is the self-styled Guru of the said Mandir. It is further averred that, in the Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 5 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:47 +0530 year 2008, the defendant and his persons who claimed to be the disciple of the said temple had constructed the temporary Chulhas over the suit property behind the back and without the consent of the plaintiff and in the plot of Sh. Chaman Lal Kakkar for the purpose of distribution of Langar / community kitchen. When the attorney of the plaintiff namely Sh. Madanjit Singh visited the suit property and raised the objection, then the defendant and said disciples of the above said temple promised and assured to remove the same within 2 days and same was removed.
6. It is further averred that, in the month of January 2012, the defendant and his persons again constructed the Chulhas over the suit property and in the plot of Sh. Chaman Lal Kakkar. It is further averred that, when the above said attorney of the plaintiff namely Sh. Madanjit Singh and Sh. Chaman Lal Kakkar requested the defendant and his persons, they started a quarrel and abused Sh. Madanjit Singh and Sh. Chaman lal Kakkar and did not remove the said Chulhas. It is further averred that, in the month of April 2012, there was a Bhandara in the above said temple. It is further averred that, in the intervening night of 01.04.2012, the defendant and his persons removed the old separated middle wall which was between the suit property and the plot of Sh. Chaman Lal Kakkar which has been shown as red dotted line in the site plan and illegally and unauthorizedly took the possession of the suit property and the plot of Sh. Chaman Lal Kakkar. It is further averred that, that in the month of April 2012, when the plaintiff and his attorney Sh. Madanjit Singh met with the defendant and requested him to vacate the suit property, defendant told them that in the month of April-May 2012, some function of the temple was to be held and after completion of Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 6 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:42 +0530 the said function, he shall vacate the suit property and also assured that he shall reconstruct the middle separating wall which had been demolished by him and believing the defendant, plaintiff had not taken any action against the defendant to get the suit property vacated from the defendant at that time. However, defendant kept avoiding the request of plaintiff on one pretext or the other and did not vacate the suit property.
7. It is further averred that, in the month of December 2012, the defendant and other disciples of the Salhakul Mandir installed the tin- sheds over the suit property and also over the plot of Sh. Chaman Lal Kakkar as shown in the site plan and also put mud in both the said plots.
It is further averred that, when the attorney of the plaintiff Sh. Madanjit Singh and Sh. Chaman Lal Kakkar tried to stop the defendant and his disciples, Sh. Madanjit Singh and Sh. Chaman Lal Kakkar were threatened by the defendant and his disciples with dire consequences. In this regard, Sh. Sh. Chaman Lal Kakkar lodged an F.I.R before Police Station Dwarka (North), being F.I.R No. 300/2012 dated 31.12.2012, U/s 448/506/34 I.P.C.
8. It is further averred that, defendant who is the self styled Guru of the Salhakul Mandir has illegally and unauthorizedly trespassed over the suit property in the intervening night of 01.04.2012, and is in illegal and unauthorized possession of the suit property. The defendant has no right, title and interest of any kind over the suit property and has no right to retain the possession of the suit property. It is further averred that, in the month of March 2013, the plaintiff and Sh. Madanjit Singh requested the defendant to remove the tin-sheds which have been Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 7 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:38 +0530 illegally and unauthorizedly installed by the defendant over the suit property and to vacate the suit property but the defendant did not pay any heed to the request made by the plaintiff and Sh. Madanjit Singh and has still been illegally and unauthoriseldy retaining the possession of the suit property. It is further averred that, the defendant has no right, title and interest to remain in possession of the suit property which is owned by the plaintiff by virtue of the above said documents dated 10.03.2008 executed by the previous owner of the suit property in favour of the plaintiff. The defendant who has illegally and unauthorizedly occupied the suit property since 01.04.2012 is liable to pay the damages for illegal and unauthorized use and occupation of the suit property. The plaintiff assessed the said damages @ of Rs. 20,000/-per month. It is further averred that, since 01.04.2012, the defendant is in illegal and authorized occupation of the suit property, hence from 01.04.2012, till vacating of the suit property by the defendant and hand over the vacant possession of the suit property to the plaintiff, the defendant is liable to pay damages @ of Rs. 20,000/- to the plaintiff.
9. It is further averred that, even if the above said documents relied upon by the plaintiff are not treated as titled documents by this Hon'ble Court, then also the plaintiff is entitled to recover the possession of the suit property from the defendant in as much as the plaintiff was in prior settled and peaceful physical possession of the suit property and the plaintiff has been dispossessed by the defendant illegally, unlawfully without following due process of law and without any right as such the plaintiff is entitled for recovery of possession of the suit property based on his prior possession over the suit property. It is further averred that, Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 8 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:34 +0530 the plaintiff if defendant succeeds in creating any third party interest in the suit property, then the plaintiff will suffer irreparable loss and injury and there is a chance of multiplicity of litigation and that except to approach this Hon'ble Court the plaintiff has no efficacious remedy.
10. In his WS, defendant stated that, the present suit filed by the Plaintiff against the suit of the Plaintiff is not maintainable and same may be dismissed because the Plaintiff has admittedly not shown the possession of the disputed property at any point of time after purported purchase and no document such as electricity bill, election 1-card, ration card etc. has been placed on record to substantiate that the Plaintiff at any point of time had resided and possessed the suit property. It is further stated that the plaintiff has no locus standi to file the instant suit, as the plaintiff has not raised any dispute in the suit, about the property owned and possessed by the Defendant as the plot number and plot size of purported suit property of the Plaintiff is different than the property owned and possessed by the Defendant and, thus, the instant suit is liable to be dismissed, as continuance of this suit will be gross abuse of the process of law. It is further stated that the Plaintiff's purported suit property is plot No.48, falling in Khasra No.28/4 situated in the revenue estate of Village Kakrola, New Delhi presently known as Mohit Nagar, Kakrola, New Delhi, admeasuring 250 sq. yds., whereas, the Defendant's property is situated at Plot No. 49, falling in Khasra No.28/4, situated in the revenue estate of Village Kakrola, New Delhi presently known as Mohit Nagar, Kakrola, New Delhi admeasuring 400 sq. yds. It is further stated that, the Plaintiff has no documentary evidence to show that he is the owner and ever held the possession of plot No.49, falling in Khasra Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 9 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:36 +0530 No.28/4, situated in the revenue estate of Village Kakrola, New Delhi presently known as Mohit Nagar, Kakrola, New Delhi admeasuring 400 sq. yds. According to Plaintiff's own submissions in the plaint, he is purported owner of plot No.48 not the plot No. 49 in the Colony ibid. It is further stated that, the Plaintiff has admittedly not shown the possession of the suit property at any point of time, since the alleged purchase of the property and to substantiate his claim of possession. The Plaintiff has not filed even a single document on record to prove on which date, he has come in the possession of the suit property.
11. It is further stated that, the present suit of the Plaintiff is hit by limitation clause as provided under Limitation Act, 1963 and is time barred and liable to be dismissed with cost. It is further stated that, the instant suit of the Plaintiff is not maintainable and liable to be dismissed, as the Plaintiff has attempted to use FIR No.300/2012 dated 31.12.2012 U/s 448/506/34 IPC which was lodged by Shri Chamanlal Kakkar S/o Late Shri Ganga Ram (who is not the party in the instant suit) in connivance and collusion with the Plaintiff, to execute preplanned conspiracy, to make a ground to file the instant suit against the Defendant before the Hon'ble Court and grab the property of the Defendant. It is further stated that, the ground on which the said FIR has been filed against the Defendant by Chamanlal Kakkar S/o Shri Ganga Ram is not sustainable and tenable ground as Shri Chamanlal Kakkar is not the Plaintiff and Plaintiff is not the Complainant of the said FIR. It is further stated that, the title document placed on record by the Plaintiff in respect of suit property are GPA. and Agreement to Sell that too are unregistered and notarized document, which are not valid title document for transfer Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 10 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:36 +0530 of property, as held by the Hon'ble Supreme Court of India in case of Suraj Lamp & Industries Pvt. Ltd. Versus State of Haryana. It is further stated that, the Plaintiff had never made any complaint to Defendant or to any Govt. Authority including the police about the alleged encroachment/ dispossession of them by the Defendant from the subject property, from the purported date of purchase to the date of filing this suit. It is further stated that, the story disclosed by the Plaintiff in the instant plaint is a concocted story, foundation of which is laid down on forged fraudulent, fictitious documents, fabricated and created by the Plaintiff to grab the Defendant's property, which falls flat as per their own admissions and commissions/omissions. It is further stated that, the suit of the Plaintiff is not maintainable and is liable to be dismissed as it has been filed without proper court fee. The market value of the subject property is approx. Rs. 2 crores.
12. It is further stated that, the Defendant is legitimate owner of plot No.49, falling in Khasra No.28/4, situated in the revenue estate of Village Kakrola, New Delhi presently known as Mohit Nagar, Kakrola, New Delhi admeasuring 400 sq. yds. and is in continuous possession since 5th April, 1986 to till date, which is not under dispute in the instant suit, whereas, in the suit, the disputed property is plot No.48 in Khasra No.28/4. It is further stated that, the instant suit of the Plaintiff is not maintainable and liable to be dismissed, as Smt. Norati Devi purchased plot No.49, falling in Khasra No.28/4, situated in the revenue estate of Village Kakrola, New Delhi presently known as Mohit Nagar, Kakrola, New Delhi admeasuring 400 sq. yds. from Shri Sukhbir Singh and Shri Balbir Singh, both sons of Shri Chander R/o Village Kakrola, New Delhi Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 11 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:39 +0530 vide Deed of Agreement and General Power of Attorney both dated 27.02.1986 and acquired the possession of the said plot on 27.02.1986 itself. On 5th April, 1986, Smt. Norati Devi handed over possession of aforesaid plot No.49, to the Defendant for the use of temple.
13. It is further stated that, on 18th April, 1986, Ram Navmi Mela and Celebration organized by Sulhakul Temple first time took place at said plot No.49, as per wish of Smt. Norati Devi. Since then, the plot is in continuous possession and use of temple trust of the Defendant and every year during Chaitra Navratra and Ram Navmi festival is celebrated and Mela is held at the said plot. During the rest of part of year also the said plot is regularly used by Temple Trust for temple related activities and gathering of the devotees of the temple trust. It is further stated that, till her life time i.e. upto year 1998 Late Sant. Norati Devi participating in Ram Navmi celebration managed by temple trust at the said plot No.
49. It is further stated that, Smt. Norati Devi bequeathed the plot No.49, falling in Khasra No.28/4, situated in the revenue estate of Village Kakrola, New Delhi presently known as Mohit Nagar, Kakrola, New Delhi admeasuring 400 sq. yds. to the Defendant, vide Will Deed dated 31.12.1997 which was duly registered with the Office of Sub Registrar, Seelampur Shahdara, Delhi vide registration No.61505, in additional book No.IV, volume No.4771 on pages 28 and 29 executed by Smt. Norati Devi wife of Late Shri Ramji Dass resident of 1220, Subhash Road, Gandhi Nagar, Delhi-110031. Alongwith Will, the Testator Smt. Norati Devi executed General Power of Attorney dated 31.12.1997 in favour of the Defendant which was duly registered with the office of Sub Registrar, Seelampur, Shahdara, Delhi vide registration No. 58403 in Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 12 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:46 +0530 additional book No.3, volume No. 258 on pages 68 and 69. Copies of Will and G.P.A. both dated 31.12.1997 executed by Smt. Norati Devi wife of Late Shri Ramji Dass.
14. It is further stated that, Defendant became owner of property bearing No. 49, falling in Khasra No. 28/4, situated in the revenue estate of Village Kakrola, New Delhi presently known as Mohit Nagar, Kakrola, New Delhi admeasuring 400 sq. yds., by virtue of registered Will Deed dated 31st day of December, 1997 on 11.09.1998 after the death of Smt. Norati Devi and that the possession of the said plot No.49 remained in continuous possession of the Defendant from 5th April, 1986 to till date. In parawise reply, defendant has denied the entire contents of plaint.
15. Replication to the written statement of defendants was filed on behalf of the plaintiff, thereby, reiterating and reaffirming the contents of the plaint.
ISSUES
16. On the basis of pleadings of parties, following issues were framed by Ld. Predecessor of this Court vide order dated 25.05.2016 :-
i. Whether the suit is bad for non-joinder of necessary parties?OPD ii. Whether the suit property of the plaintiff is different from the property owned and purchased by the defendant? OPD iii. Whether the plaintiff is entitled to decree of possession with respect to plot no. 8 out of khasra no. 28/4, ad measuring 250 sq. Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 13 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:43 +0530 Yds situated in the revenue estate of village Kakrola, New Delhi? OPP iv. Whether the plaintiffs are entitled to decree of damages/mesne profits for sum of Rs. 3,40,000/-, if so, at what rate and for what period?OPP v. Whether the plaintiff is entitled to a decree of permanent injunction? OPP vi. Relief.
EVIDENCE GIVEN BY PARTIES
17. In support of its case, plaintiff examined six witnesses. PW1 Sh. Madanjit Singh, s/o Sh. Late Lakhjeet Singh, R/o 341, Nav Sansad Vihar, Sector-22, New Delhi tendered his evidence by way of affidavit Ex.PW 1/1 and relied upon the following documents:
Sl. Particulars of Documents Exhibits/Mark No.
1. Site Plan Ex. PW-1/1
2. Special Power of Attorney Ex. PW-1/2
3. Original GPA, Deed of Agreement, Ex. PW-1/3 (Colly) Affidavit and Receipt, all dated 22.10.1986
4. Original GPA, Agreement to Sell, Ex. PW-1/4 (Colly) Affidavit, all dated 16.08.1990
5. Copy of receipt Mark A
6. Original GPA, Agreement to Sell, Ex. PW-1/5 (Colly) Affidavit, WILL, Possession Letter and Receipt, all dated 03.07.2024
7. Original GPA, Agreement to Sell & Ex. PW-1/6 (Colly) Purchase, Affidavit, Receipt, WILL and Possession Letter, all dated 10.05.2007 Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 14 of 40 M JAIN Date:
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8. Original GPA, Agreement to Sell, Ex. PW-1/7 (Colly) Affidavit, Receipt, Possession Letter, Two WILLs, all dated 10.03.2008
9. Copy of Cheques Mark B
10. Copy of FIR No. 300/12 Mark C PW1 was cross-examined by Ld. Counsel for defendants at length and discharged.
18. PW-2 Sh. Satbir Singh S/o late Sh. Bihari Lal, Aged 59 Years, R/o B-302, Rurdra Apartments, Plot No. 12, Dwarka, New Delhi tendered his evidence by way of affidavit Ex. PW2/A. He was cross- examined by Ld. Counsel for defendants and discharged.
19. PW-3 Sh. Yogesh Gahlot, S/o Sh. Sardar Singh, Aged about 45 Years, R/o 4 & 5, Nawada Extn., Uttam Nagar, New Delhi-110059 and also at 208, Nawada Village, Uttam Nagar, New Delhi-110059 tendered his evidence by way of affidavit Ex. PW3/A. He relied upon the documents already Ex. PW1/6 and Ex.PW1/7. PW3 was cross-examined by Ld. Counsel for defendants and discharged.
20. PW-4 Sh. Jaibeer Singh S/o Sh. Ram Rikh, aged about 61 Years, R/o RZ-F-87, Vishwas Park, Uttam Nagar, New Delhi-59 tendered his evidence by way of affidavit Ex. PW4/A. He relied upon the documents i.e. GPA, Agreement to Sell and Affidavit already Ex. PW1/4 (Colly) already exhibited/proved in the deposition of PW1 and document i.e. Receipt already marked as Mark A. PW4 was cross-examined by Ld. Counsel for defendants.
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21. PW-5 Sh. Raj Kumar S/o late Sh. Daya Chand, Aged about 55 Years, R/o A-1/103, Madhu Vihar, Uttam Nagar, New Delhi-110059 tendered his evidence by way of affidavit Ex. PW5/A. PW5 was cross- examined by Ld. Counsel for defendants and discharged.
22. Thereafter, plaintiff closed its evidence and the matter was listed for defendant's evidence.
23. Four witnesses were examined on behalf of defendant in support of his defense. DW1 Sh. Devender Kumar son of late Sh. Umed Singh, aged about 49 Years, R/o H. No. 1323, Sector-7, Bahadurgarh, Distt., Jhajjar, Haryana-124507 tendered his affidavit Ex.DW1/A and he relied upon the following documents:
Sl. No. Particulars of Documents Exhibits/Mark
1. Copy of Special Power of Attorney dated Ex. DW1/1 (OSR) 02.01.2019 executed by Sh. Baba Avtar Singh in favour of deponent (Devender Kumar)
2. Original Authority letter dated 13.02.2019 Ex.DW1/2
3. Original site plan of the property of DW1/3 defendant
4. Original Khatonis of village Kakrola Delhi Ex. DW1/4 (Colly) of year 2003-04
5. Original GPA, Deed of Agreement, Ex. DW1/5 (Colly) Affidavit, Receipt and Deed of Will all dt.
27.02.1986
6. Original Will dated 31.12.1997 Ex. DW1/6
7. Original GPA dated 31.12.1997 Ex. DW1/7 Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 16 of 40 M JAIN Date:
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8. Photographs of function showing various Ex. DW1/8 (Colly);
religious activities at Plot no. 49
9. Original death certificate of Smt. Norati Ex. DW1/9 Devi
10. Certified copy of statement of Mr. Ex. DW1/10 Dayanand S/o. Sh. Nand Lal in FIR No. 300/2012
11. Certified copies of documents dated Ex. DW1/11 (Colly.) 23.04.2013
12. Certified copy of statement of plaintiff Ex.DW1/12 recorded in the Court of Sh. Sankalp Kumar, the then Ld. MM, Dwarka Court, Delhi DW1 was cross-examined by Ld. Counsel for plaintiff and discharged.
24. DW-2 Sh. Mam Chand So Sh. Mangal Ram, R/o House No. 50, Mohit Nagar Kakrola, Delhi 110078, now residing at House No. 16 in front of (West side) of plot no.49 Mohit Nagar, New Delhi tendered his evidence by way of affidavit Ex.DW2/A and also relied upon photocopy of Adhar Card Ex.DW2/1 (OSR). DW2 was cross-examined by Ld. Counsel for plaintiff and discharged.
25. DW-3 Sh. Pushpam Sardana S/o Sh. Desh Raj Sardana, R/o House No. C-5A/141, Janak Puri, New Delhi-110018 tendered his evidence by way of affidavit Ex.DW3/A and also relied upon document already Ex.DW1/3 and further stated that the signature of Draftsman Sh. Sunder Singh is already at point A on Ex. DW-1/3. DW3 was cross- examined by Ld. Counsel for plaintiff and discharged.
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26. DW4 Sh. Raju Singal S/o late Sh. LN, Singal, R/o House No. 197-198, 3rd floor, Pocket 6, Sec. 24, Rohini, Delhi tendered his evidence by way of affidavit Ex.DW4/A and relied upon photocopy of Adhar Card which is Ex.DW4/1. He further relied upon the documents already Ex. DW-1/6, Ex. DW-1/7 and Ex. DW-1/8 (colly). DW4 was cross-examined by Ld. Counsel for plaintiff and discharged.
27. Thereafter, DE was closed and matter was listed for final arguments.
SUBMISSIONS OF THE PARTIES
28. Ld. Counsel for plaintiff submitted that as per record there were 4 bhumidars qua suit property i.e. Baldev Singh, Balbir Singh, Sukhbir Singh and Tej Singh. It is further submitted that all 4 bhumidars executed title documents in favour of Dayanand on 22.10.1986 who in turn executed title documents in favour of Sh. H D Bhalla on 16.08.1990. It is further submitted that Sh. H D Bhalla further executed title documents in favour of Raj Kumar on 03.07.2004 who in turn executed in favour of Yogesh Kumar and Rampat on 10.05.2007 and finally title document executed in favour of plaintiff on 10.03.2008. Ld. Counsel for plaintiff further submitted that defendant has no title, interest or right qua suit property in his favour. It is submitted that the entire defence of the defendant is based on the WILL 31.12.1997 alleged to be executed by late Smt. Naroti Devi. It is further submitted that Smt. Naroti Devi in fact does not have any title in her favour qua suit property as title documents in favour of Smt. Naroti Devi has no legal sanctity in the eye of law being executed by 2 bhumidars only and that's too with respect to Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 18 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:39 +0530 plot no. 49 admeasuring 400 sq. yds only i.e. different from the suit property. It is further submitted that, alledged Will executed only with respect to one property No. 1220, Old No. 416, measuring 240 sq yds out of Khasra No. 59, Khewat No. 2, Gandhi Nagar, Village Seelmapur, Shahdara, Delhi - 110031 and not w.r.t. plot no. 49, admeasuring 400 sq yds in Village Kakrola.
29. It is further submitted that disciple of Baba Avtar Singh trespassed the suit property on 01.04.2012 by breaking boundary wall against which specific FIR no. 300/2012 was lodged to which plaintiff was the witness. It is further submitted that in entire WS defendants nowhere claimed ownership qua suit property i.e. Plot No. 48, hence decree may be passed in favour of plaintiff. It is further submitted that all PWs duly corroborated with the claim of the plaintiff and also proved the title documents in favour of plaintiff.
30. Ld. Counsel for the plaintiff also submitted that the defendant failed to discharge his onus. It is further submitted that late Smt. Naroti Devi does not hold any document in her favour qua suit property and defendant neither able to prove possession nor site plan hence decree may be passed. Lastly, it is submitted that, there is material discrepancy in the testimony of DWs hence, same can't be relied upon. Ld. Counsel for the plaintiff relied upon following judgments in support of his contention.
a) O.P. Aggarwal & Anr. vs. Akshay Lal & Ors. RFA No. 127/2004 dt. 15.03.2012;
b) Bimla Chopra & Anr. vs. Kuldeep 2023 SCC OnLine Del 2669;
c) Arbinder Singh Kohli & Anr. vs. Gobind Kaur Kohli 2018 SCC OnLine Del 9663;
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d) Komal & Ors. vs. Panchi Devi 2018 SCC OnLine Del 7151;
e) Ashish Kumar vs. Hari Kishan 2015 SCC OnLine Del 14059;
f) Jagdish v. Shri Krishan S/o Late Sh. Banwari Lal & ors. Suit no.
178/11 dt. 13.06.2012
31. Per contra, Ld. Counsel for defendant vehemently opposed the claim of the plaintiff. It is submitted that plaintiff could neither prove his possession nor any right, title or interest qua suit property, hence present suit may be dismissed with heavy costs. It is also submitted that defendant is the exclusive owner of the suit property by virtue of registered WILL executed by late Smt. Naroti Devi being owner of the suit property. It is further submitted that plaintiff has given wrong description of the plot as there is no plot with the number 48 rather it is plot no. 49 i.e. owned by defendant only. It is further submitted that testimony of PW1 is not reliable as same has been given merely in capacity of SPA and plaintiff never came for deposition. It is further submitted that as per his own version plaintiff already sold suit property to third person on 23.04.2013 vide DW1/11, hence he has no locus in present suit.
32. In rebuttal, ld. Counsel for the plaintiff submitted that onus of issue no. 2 was upon defendant which he failed to discharge. It is further submitted that, there is material contradictions in the testimony of DWs, hence there credibility is in doubt. It is further submitted that testimony of criminal matter cannot be relied upon. It is further submitted that although plaintiff executed Agreement to Sell dated 23.04.2013 but the same is beyond the pleadings and does not create any right in favour of other person.
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JAIN 2025.01.21 17:03:30 +0530 ISSUEWISE ANALYSIS AND FINDINGS ISSUE NO. 1- Whether the suit is bad for non-joinder of necessary parties? OPD
33. It is settled law that, no suit shall be defeated by reason of misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.1
34. Hon'ble Supreme Court of India in the matter of Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and Others2 held as follows:
8. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief.
Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:
"Court may strike out or add parties. (2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as 1 Order I Rule 9 CPC 2 (2010) 7 SCC 417 Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 21 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:38 +0530 plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
35. In present matter, Plaintiff is claiming to have purchased suit property vide notarized GPA/Agreement to sell/Receipt/Will dated 10.03.2008 from Yogesh Kumar and Rampat who purchased the same from erstwhile owner i.e. Raj Kumar, who also purchased the same from H D Bhalla on 03.07.2004. While HD Bhalla purchased the same from Dayanand who originally purchased suit property from four Bhoomidars on 22.10.1986. Onus of this issue is upon defendant but, except making bald averment in the Written Statement, no argument/evidence/material brought on record in support of his contention. Thus, present suit can't be held bad for misjoinder of the necessary and proper parties. Hence, this issue decided in favour of plaintiff.
ISSUE No. 2: Whether the suit property of the plaintiff is different from the property owned and purchased by the defendant? OPD ISSUE No. 3: Whether the plaintiff is entitled to decree of possession with respect to plot no. 8 out of khasra no. 28/4, ad measuring 250 sq. Yds situated in the revenue estate of village Kakrola, New Delhi? OPP
36. As both issue no. 1 and 2 are interlined hence, adjudicated simultaneously.
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37. In fact, these are main issues in present case and most crucial one. Not only the description of plot number but, surrounded boundaries are different. Since plaintiff and defendant are claiming two set of chain for suit property, same is reproduced herein for the purpose of clarity:
PLAINTIFF'S VERSION Description Plot bearing no. 48, ad-measuring 250 sq. yards (30' X 75') comprising in khasra no.28/4 situated in village Kakrola, Delhi presently known as Mohit Nagar, Kakrola, New Delhi, most specifically shown in red in colour in the site plan (herein after referred as 'Property A') Original Balbir Singh, Sukhbir Singh, Bhagat Singh and Tej Ram Bhumidari all son of Sh. Chander Rights Boundaries Main Road 20 Road 20 Ft. Other's Dwarka Ft. Wide Wide Property Road (East) (West) (North) (South) SITE PLAN (Ex.PW1/1) Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 23 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:31 +0530 Plaintiff's Chain Balbir Singh, Sukhbir Singh, Bhagat Singh and Tej Ram all son of Sh. Chander (Bhumidars) Daya Nand vide unregistered/Notarised GPA, Deed of Agreement, Affidavit, Receipt all dated 22.10.1986 H D Bhalla vide unregistered/Notarised GPA, Agreement to sale , Affidavit and registered Receipt all dated 16.08.1990 Raj Kumar vide unregistered/Notarised GPA, Agreement to sell, Affidavit, Receipt, Poseesion Letter and Will all dated 03.07.2004 Rampat and Yogesh Kumar vide unregistered/Notarised GPA, Agreement to sell and purchase, Affidavit, Receipt and Deed of Will all dated 10.05.2007 S B Aggarwal (Plaintiff) vide unregistered/Notarised GPA, Agreement to Sell, Affidavit, Receipt, Poseesion Letter and Will all dated 10.03.2008 DEFENDANT'S VERSION Description Plot bearing no. 49, ad-measuring 400 sq. yards comprising in khasra no.28/4 situated in village Kakrola, Delhi presently known as Mohit Nagar, Kakrola, New Delhi (herein after referred as 'Property B') Original Balbir Singh and Sukhbir Singh both son of Sh.
Bhumidari Chander
Rights
Boundaries Plot No. 50 Road 20 Other Land Road 20 Ft
(East) Ft. (West) (North) (South)
Digitally
signed by
SHILPI SHILPI M
CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 24 of 40 M
JAIN
Date:
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17:03:37
+0530
Site Plan
(Ex.DW1/3)
Defendant's
Balbir Singh and Sukhbir Singh
both sons of Sh. Chander
Chain (Bhumidars)
Norati Devi vide
unregistered/Notarised GPA,
Deed of Agreement, Affidavit,
Receipt all dated 27.02.1986
HH Sant Shri Avtar Singh
(Defendant) vide registered
Will dated 31.12.1997
38. It is well settled law that "Sale" is a transfer of ownership in exchange for a price paid or promised and said transfer can be made only a registered instrument.3 But, none of the parties are claiming ownership 3 Section 54, Transfer of Property Act Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 25 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:32 +0530 by virtue of any registered Sale Deed. Hon'ble Supreme Court in Suraj Lamp & Industries Private Limited V State of Haryana & another 4, referred to the ill - effects of sales through General Power of Attorney or Sale Agreement/General Power of Attorney/Will transfers (for short `SA/GPA/WILL' transfers) and observed that there cannot be a sale by execution of a power of attorney nor can there be a transfer by execution of an agreement of sale and a power of attorney and Will.
39. Further, in present matter both parties have different sets of chain and plot numbers. But, somehow both chains carries common link i.e four bhumidars namely Balbir Singh, Sukhbir Singh, Bhagat Singh and Tej Ram all son of Sh. Chander. Plaintiff's chain originated from all four bhumidars while defendant's chain originated with Balbir Singh, Sukhbir Singh and Bhagat Singh only. Although one 'Nakal Khatoni' relied upon by defendant as Ex. DW1/4 during evidence for Khasra No. 28/4 but, same doesn't bear any specific description either of property. In any case, no revenue record in favour of four bhumidars for suit property produced by plaintiff. It is settled law that, no can transfer better title one has. Main question is whether suit property ever exist in the name of four bhumidars and if so, legal issue which needs judicial consideration and determination is that whether Power of Attorney, Agreement to Sale and other documents constitute valid transfer of the immovable property in absence of execution of sale deed.
40. In Anil Rishi v. Gurbaksh Singh5 Hon'ble Supreme Court of India discussed law on onus and burden of proof in following terms:4
2009 (7) SCC 363 5 (2006) 5 SCC 558 Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 26 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:40 +0530 "8. The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:
"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."
9. In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be an exception thereto. The learned trial court and the High Court proceeded on the basis that the defendant was in a dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
XXXXXX
15. Section 111 of the Evidence Act will apply when the bona fides of a transaction is in question but not when the real nature thereof is in question. The words "active confidence" indicate that the relationship between the parties must be such that one is bound to protect the interests of the other.
XXXXXXX
19. There is another aspect of the matter which should be borne in mind. A distinction exists between burden of Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 27 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:35 +0530 proof and onus of proof. The right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is, which party is to begin. Burden of proof is used in three ways: (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later, (ii) to make that of establishing a proposition as against all counter- evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule in Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same."
(emphasis is mine)
41. Since plaintiff is claiming relief of possession qua suit property on the basis of Exh. PW1/7 (Colly) he must prove that, he was in settled possession as on date of cause of action. If he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. But, no such onus discharge by plaintiff.
42. Order VII Rule 3 CPC provides that, where the subject-
matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 28 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:44 +0530 settlement or survey, the plaint shall specify such boundaries or numbers.
43. Be that as it may, when the suit is filed for he possession immovable property, the plaintiff is required to take care to comply with Order VII Rule 3 of the Code of Civil Procedure so as to describe the suit property which is subject-matter of the suit sufficiently so as to identify appropriately with boundaries thereof. The plaintiff must be careful to describe the property by its boundaries, Survey Number with area mentioning the boundaries on North, East, West and South of the suit property. But, present plaint and site plan lacks said description.
44. Record reveals that, vide order dated 28.10.2024, at request of parties, this court appointed Local Commissioner for clarification on site plan. Ld. Local commissioner produced following site plan:
45. Although, Ld. counsel for plaintiff vehemently opposed above site plan but, the fact that, plaintiff failed to produce any material on Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 29 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:45 +0530 record which is sufficient to identify the suit property can't be overlooked. During the course of argument, Ld. counsel for plaintiff submitted that initially, the plot no. 48 was ad-measuring 477 sq. yards and later on two plots were carved out from the said plot, the plot ad- measuring 250 sq. yards from northern side was purchased by plaintiff and plot ad-measuring 227 sq. yards from southern side was purchased by Chaman Lal Kakkar. However, this submission is not only contrary to the site plan relied upon by the plaintiff but, also in contradiction to the suggestion given to DW1 during his cross examination. In his replication, plaintiff submitted that, plot no. 49 in Khasra no. 28/4 is separate and distinct property as shown in the site plan filed by the plaintiff. But, Ex.PW1/1 reveals plot no. 48 (admeasuring 250 sq yds) and adjacent to other portion (admeasuring 227 sq yds) while plot no. 49 clearly boundaried. Even otherwise size of plot no. 49 is shown as less than so called northern side of plot no. 48. In cross examination, plaintiff suggested DW1 that plot no. 49 pertains to Chaman Lal Kakkar which is contrary to his own claim. Further, date, time or place of said bifurcation of 477 sq yds plot not disclosed. In any case, plaintiff claimed to have purchased suit property in the year 2008 vide notarized GPA/Agreement to sell/Affidavit/Receipt dated 10.03.2008 which is claimed to be the part of chain document started from similar set of documents dated 22.10.1986 claimed to executed by four bhumidars but, even said documents bears detail of plot no. 48 admeasuring 250 sq. yards only. As such, testimony given by plaintiff don't corroborate with the submission made by plaintiff. Further, plaintiff never chosen to depose before this court in personal capacity rather, one Sh. Madanjit Singh deposed as PW1 being SPA of plaintiff vide SPA dated 10th Sep 2013.
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46. At this juncture, it would be imperative to discuss relevancy and admissibility of evidence given by Power of Attorney holder.
47. In Janki Vashdeo Bhojwani vs. IndusInd Bank Ltd.6, the Supreme Court held that the Power of Attorney holder or the legal representative should have knowledge about the transaction in question to bring on record the truth in relation to the grievance or the offence. It is further held that:
"Power of Attorney holder can depose and verify on oath before the court but he must have witnessed the transaction as an agent and must have due knowledge about it. The Power of Attorney holder who has no knowledge regarding the transaction cannot be examined as a witness. The functions of the General Power of Attorney holder cannot be delegated to any other person without there being a specific clause permitting such delegation in the Power of Attorney; meaning thereby ordinarily there cannot be any sub-delegation."
48. It is, therefore, settled in law that, Power of Attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents or about the facts that may have transpired much before the cause of action. The aforesaid Power of Attorney holder PW-1 had clearly deposed that he is giving evidence on behalf plaintiff in capacity of SPA. Relevant cross examination of PW1 is reproduced herein:
"I am civil contractor and doing the said business in Delhi, Gurgaon and Faridabad however, not in abroad.6
AIR 2005 Supreme Court 439 Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 31 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:34 +0530 XXXX It is correct that SPA Ex. PW1/2 was executed in my favour on 10.09.2013. It is correct that before the said SPA no other SPA or other authority letter or any other document pertains to suit property had been executed by S.B. Aggarwal.
XXXXX I have no blood relation or marital relation with Sh. S. B. Aggarwal, plaintiff. Sh. S. B. Aggarwal is my childhood friend but did not study in the same school. I am BA Pass. I cannot say the educational qualification of Sh. S.B. Aggarwal. I work with Sh. S. B. Aggarwal and I have business relation with him.
XXXXX It is wrong to suggest that being the property dealer I entered into a contract with plaintiff S. B. Aggarwal to grab the suit property reason why I create a false and fabricated SPA and filed the present suit. It is wrong to suggest that I have not made any complaint before any authorities pertaining to the illegal possession, encroachment or any wrongful act on the suit property. Vol: I have lodged the police complaint against defendant Baba Avtar Singh and I have also standing with Sh. Chaman Lal Kakkar when the FIR was lodged by him and I wan one of the part in the said FIR and my name is also mentioned in the said FIR. I have lodged the said police complaint in 2014-2015. It is correct that said police complaint is not filed on record. XXXXX It is correct that I was no where in the transaction of the sale and purchase of the suit property by Sh. S. B. Aggarwal, plaintiff. It is correct that I have personal knowledge in regard to the sale transaction of the suit property done by Sh. S. B.Aggarwal. It is correct that I have no knowledge of previous chain of sale purchase of suit property prior to purchase of S. B. Aggarwal. It is Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 32 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:45 +0530 incorrect that I have not made any complaint between 2008-2012 against the defendant. I have made the complaint against the defendant in 2012. I have not made any complaint prior to 2012 vol: as I was in possession of the suit property. It is incorrect to suggest that I was never in the possession of the suit property. It is further wrong to suggest that defendant was always in possession of the suit property.
XXXXX It is correct that I have not mentioned the boundary of the suit property in my affidavit in evidence Ex.PW1/1. The temple already exist prior to purchase of the suit property. I do not know defendant. Vol: I know that temple adjacent to the suit property belongs to Baba Avtar Singh, defendant. It is wrong to suggest that temple exists in the suit property. It is incorrect to suggest that khasra no.28/4 plot no.48 is ad measuring 450 sq. yds. Vol: it was 250 sq. yds. which belongs to plaintiff. It is wrong to suggest that since 30-40 years defendant has the possession of the suit property.' (emphasis is mine)
49. During cross examination PW1 not only denied to have any knowledge of any previous chain but, also claimed his own possession prior to 2012. He further claimed the total size of plot no. 48 as 250 sq yds which, negates the claim of plaintiff which says that the plot was initially admeasuring 477 sq yds and bifurcated into two parts. Hence, testimony of PW1 is under shadow being tainted and contradictory to the pleading.
50. Further, It is settled position in law that, where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy.
Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 33 of 40 M JAIN Date:
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51. In the case of Anathula Sudhakar v/s P. Buchi Reddy (2008) 4 SCC 594 Hon'ble Supreme Court of India specifically held as follows:
"17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)].
Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 34 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:43 +0530 court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that, question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiffs to a more comprehensive declaratory suit, depending upon the facts of the case."
52. Admittedly, no declaratory relief sought in present matter. Further, despite appointment of Local Commissioner, no sufficient material placed on record to show the description of suit property. Documents relied by plaintiff as title documents i.e. Exh. PW1/7 (Colly.) can't be terms as title documents. Directions specified in the site plan is contrary to the documents placed on record by plaintiff. For the purpose Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 35 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:35 +0530 of clarification comparative of direction as mention in documents and site plan (Exh. PW1/1) is reproduced herein below:
Directions As per GPA/ATS dated As per Site plan of 10.03.2008 (Exh. PW1/ 7 plaintiff (Exh. PW1/1) (Colly) for plot no. 48 EAST MAIN DWARKA ROAD PIPE LINE WEST ROAD 20 FT. WIDE ROAD 20 FT. WIDE NORTH ROAD 20 FT. WIDE ROAD SOUTH OTHER'S PROPERTY PART OF PLOT NO. 48 (227 SQ YDS)
53. Even otherwise, no material placed on record to show any kind possession of plaintiff or any of claimed chain holder at any point of time on the suit property. No revenue record placed on record.
54. Plaintiff examined PW2 to prove his possession. But, testimony of PW2 doesn't invite any confidence of this court. In his chief, PW2 claimed to be in possession of one plot no. 3, Sulhakul Vihar, New Delhi i.e. near to suit property. In his cross as on 14.02.2007, PW2 goes one step further and claimed to know Sh. S.B. Aggarwal i.e. plaintiff in the present case since 10-15 years as plaintiff's plot is adjacent to his plot which, in the opinion of this court is absolutely baseless as neither site plan (Exh. PW1/1) nor plaint bears any such description. PW2's deposition for plaintiff's possessory right is entirely based upon hearsay evidence only. He categorically stated that, 'I came to know that the suit property is in possession of Mr. Aggarwal as he used to say when we were sitting together.' PW2 further negate the claim of plaintiff that "after purchasing the suit property, the plaintiff locked the room and main gate of the suit property' as mentioned in the plaint rather, disposed Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 36 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:41 +0530 that the suit property does not bear any gate. Thus, testimony of PW2 is infact contradictory and beyond the pleading.
55. For the purpose of clarification, as is reproduced herein below:
'I know Sh. S.B. Aggarwal i.e. plaintiff in the present case since 10-15 years. I know him as the plot of the plaintiff is adjacent to my plot. I know Mr. Madanjeet Singh for the last 10-15 years. I know Mr. Madanjeet Singh as he used to accompany the plaintiff. I know the defendant as he visits his temple however, I am not on speaking terms with the defendant. One plot bearing no.3 Sulahkul Vihar near to the suit property belongs to me. My plot is at a distance of 2-3 plots of the temple. My date of birth is 15.07.1957. I have been visiting in and around of the suit property for about 15 years. I do not recollect about the position of the suit property at about 15 years ago. I do not recollect whether I inspected the suit property in the year 2011. There is no gate at the suit property.
Voltr. There is some tin shed at some part of the property by Mr. Aggarwal. I came to know that the suit property is in possession of Mr. Aggarwal as he used to say when we were sitting together. There was boundary wall of Mr. Aggarwal which was built in my presence. I do not visit the temple of defendant. In 2012, some persons came to Mr. Aggarwal to take permission for holding langar at the suit property in my presence. The said permission was granted by Mr. Aggarwal for langar. I know Mr. Chamanlal Kakkar who has a plot adjacent to the suit property, however. I do not know the number of his plot. In 2011, there was only a boundary and a cow was tied by the plaintiff at the suit property and nothing else was constructed. There was no wall earlier but now there is a wall. I do not recollect as to who constructed the said wall. In December 2012, the defendant was asked to vacate the suit property however, he refused to vacate the same. In the meantime also there was talk between the defendant and plaintiff for vacation of the suit plot but the same was not done. I do not recollect whether Mr. Aggarwal contacted the police at that time. I do not recollect the plot number owned by Mr. Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 37 of 40 M JAIN Date:
JAIN 2025.01.21 17:03:45 +0530 Aggarwal. I also do not recollect as to who is the owner of plot no. 49.' (emphasis is mine)
56. Plaintiff further examined PW3 i.e. one of chain owner as per plaintiff. But, during his cross examination, he refused to have any document to show receipt of possession from erstwhile owner
57. Thus, after carefully going through the entire material placed on record and submissions made by the parties, this court is of the opinion that in the entire suit plaintiff could neither establish the clear description of the suit property nor settled possession in his favour. Hence, this issue is decided against the plaintiff.
ISSUE No. 4: Whether the plaintiffs are entitled to decree of damages/mesne profits for sum of Rs. 3,40,000/-, if so, at what rate and for what period?OPP ISSUE No. 5: Whether the plaintiff is entitled to a decree of permanent injunction? OPP
58. Since, issue no. 2 and 3 already decided against the plaintiff, in view of foregoing discussion issue no. 4 and 5 need no analysis. Hence, disposed off.
Relief / (CONCLUSION)
59. Thus, considering the facts and circumstances of the present case, material placed on record and submissions made by the parties, present suit stands dismissed for the following reasons:
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a) Subject matter of the present suit is immovable property i.e. plot no. 48 out of khasra no. 28/4, ad-measuring 250 Sq. Yards situated in the revenue estate of village Kakrola, New Delhi, presently known as Mohit Nagar, Kakrola, New Delhi (hereinafter, called the 'suit property') but, no clear description of the property, demarcation or detail i.e. sufficient to identify it, is provided in terms of Order VII Rule 3 CPC;
b) Plaintiff failed to prove his settled possession or any of erstwhile owner in the suit property;
c) Power of attorney holder can only depose about the facts within his personal knowledge and not about those facts which are within the personal knowledge of the person who he represents or about the facts that may have transpired just before the cause of action.
Hence, testimony of PW1 is under shadow being tainted and contradictory to the pleading;
d) No material placed on record by plaintiff to show that plot no. 48 was admeasuring 477 sq. yards and bifurcated into two parts and plot admeasuring 250 sq. yards from northern side was purchased by the plaintiff;
e) No declaratory relief sought by plaintiff despite cloud is raised on his title by defendant. The predicament of plaintiff was brought upon him, by failing to convert the suit to one for declaration.
60. No order as to cost.
61. Decree sheet be prepared accordingly.
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62. File be consigned to record room after due compliance.
Announced in open court on 21st day of January, 2025 (SHILPI M JAIN) District Judge-05, South West District Dwarka Courts, New Delhi Digitally signed by SHILPI SHILPI M CS DJ ADJ 15631/16 S.B. AGGARWAL Vs. BABA AVTAR SINGH Page No. 40 of 40 M JAIN Date:
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