Delhi District Court
Rajender Singh vs Shri Phool Singh on 28 February, 2017
IN THE COURT OF SH. SHAILENDER MALIK
ADJ03(C)TIS HAZARI COURTS: DELHI
CS NO. 53/16
In the matter of
1. Rajender Singh
s/o late Sh. Khem Chand
(Deceased Through LR's, brought on
record vide Order dt 18.12.2015)
(a) Smt. Ishwanti Wd./o Lt. Sh. Rajinder Singh
R/o 60B, Himayun Pur,
New Delhi.
(b) Smt. Sudesh D/o Lt. Sh. Rajinder Singh
W/o Angrej
R/o Village Duser Kheri,
Distt. Jhajjar, Haryana
(c) Smt. Kusum D/o Lt. Sh. Rajinder Singh
W/o Shri Deepak
R/o Village Farmana Mazara
Distt. Sonepat, Haryana
2 Sh. Sat Prakash
S/o Late Sh. Khem Chand
3 Sh. Satbir Singh
S/o Late Sh. Khem Chand
4 Smt. Vimla
W/o Chand Ram
D/o Late Sh. Khem Chand
5 Smt. Kamla
W/o Anoop Singh
D/o Late Sh. Khem Chand
CS NO. 53/2016 Page 1
6 Smt. Santosh
W/o Satbir
D/o Late Shri Khem Chand
All R/o 60B, Himayun Pur,
New Delhi110029
7 Smt. Jeeto
W/o Late Sh. Bhoru
(Deleted from the array of plaintiff
vide order dt 13.05.2010)
8 Shri Sher Singh
S/o Late Sh. Bhoru
9 Shri Sri Bhagwan
S/o Late Sh. Bhoru
10 Shri Jai Bhagwan
S/o Late Sh. Bhoru
11 Smt. Shanti
W/o Shri Wazir
D/o Late Shri Bhoru
12 Smt. Om Wati
W/o Raj Kumar
D/o Late Shri Bhoru
(All R/o 60B, Himayun Pur,
New Delhi29)
13 Shri Dalip Kumar
S/o Late Shri Hukum Chand.
14 Smt. Nirmala Devi
W/o Shri Pratap Singh Chikara
D/o Late Shri Hukum Chand
15 Smt. Krishna
W/o Shri Sumer Singh Chikara
CS NO. 53/2016 Page 2
D/o Late Shri Hukum Chand.
16 Smt. Bhagwati
W/o Shri Mahinder
D/o Late Shri Hukum Chand
(All R/o 60B, Himayun Pur,
New Delhi110029)
17 Smt. Roshni
Wd./o Late Shri Darshan
18 Shri Jagbir
S/o Late Shri Darshan
19 Shri Kuldeep
S/o Late Shri Darshan
20 Shri Balraj
S/o Late Shri Darshan
21 Smt. Savita
W/o Shri Ram Avtar
D/o Late Shri Darshan
22 Miss Suman (Minor)
D/o Late Sh. Darshan
Through her mother, Smt. Roshni
(the plaintiff no. 17) as her next friend.
All r/o 60 B Himayun Pur New Delhi29
23 Smt. Ram Kumari
D/o Late Shri Chander Bhan
24 Shri Chattar Singh
S/o Late Shri Chander Bhan
25 Smt. Laxmi @ Babli
W/o Shri Jaipal
D/o Late Shri Chander Bhan
CS NO. 53/2016 Page 3
(All R/o 60B, Himayun Pur,
New Delhi110029)
26 Sh. Jagdev, S/o Shri Juglal
(deceased through L.R.'s)
a. Smt. Rati Devi
W/o Sh. Jagdev
b. Smt. Santosh
Wd./o Late Sh. Raj Kumar
c. Shri Jai Karan
S/o Raj Kumar
(All R/o 72, Himayun Pur, New Delhi110029)
27 Smt. Chhoto
Wd./o Late Shri Balbir Singh
28 Shri Narain Singh
S/o Late Shri Balbir Singh
29 Smt. Shushma
W/o Late Shri Rambir Singh
D/o Late Shri Balbir Singh
30 Smt. Seema
W/o Late Shri Rakesh
D/o Late Shri Balbir Singh
31 Sh. Rajinder
S/o Late Shri Khuba
32 Smt. Panmeshwari
D/o Late Shri Khuba
33 Smt. Phool Kaur, D/o Late Shri Khuba
(Deceased through L.R.'s brought on
record vide order dt 13.05.2010)
CS NO. 53/2016 Page 4
a. Shri Suraj Bhan s/o Late Sh. Maid Singh
b. Shri Karambir S/o Late Sh. Maid Singh
(Both R/o House No. 18, Kamrudin Nagar,
Nangloi, Delhi. )
34 Smt. Dhan Kaur @ Dhanno
Wd./o Late Shri Balram @ Balbir Singh.
35 Shri Jai Singh
S/o Late Shri Balram @ Balbir Singh
36 Shri Subhash
S/o Late Shri Balram @ Balbir Singh
37 Smt. Roshni
W/o Sh. Rampal
D/o Late Shri balram @ Balbir Singh
(All R/o 77, Himayun Pur,
New Delhi110029)
38 Smt. Nirmla Devi
Wd./o Late Shri Ram Kishan
39 Shri Vikram Singh
S/o Late Shri Ram Kishan
40 Shri Virender
S/o Late Shri Ram Kishan
41 Smt. Savita
D/o Late Sh. Ram Kishan
(All R/o 77B, Himayun Pur,
New Delhi110029)
42 Shri Mukhtar Sinhg
S/o Late Shri Ganga Dass
CS NO. 53/2016 Page 5
43 Shri Lakhpat Singh
S/o Late Shri Jai Ram
44 Shri Chatar Singh @ Chatre
S/o Late Shri Jai Ram
Deceased through LR's
(a) Smt. Krishna Wd./o Late Sh. Chattar Singh
45 Smt. Risalo
Wd./o Late Shri Jai Ram
46 Smt. Dhanpati
D/o Late Shri Jai Ram
47 Smt. Prem Wati
D/o Late Shri Jai ram
48 Smt. Roshni
Wd./o Late Shri Om Prakash
All R/o Village Himayun Pur,
New Delhi110029
49 Shri Tejbir Singh @ Teju
S/o Late Shri Khazan Singh
(Deceased through L.R.'s brought on record vide
order dt 27.01.2009)
(a) Smt. Ram Kaur
W/o Sh. Khazan Singh
(b) Smt. Manoranjana
W/o Sh. Tejbir Singh
(c) Shri Amit
S/o Sh. Tejbir Singh
(d) Shri Ashish
S/o Shri Tejbir Singh
(e) Shri Aman
CS NO. 53/2016 Page 6
S/o Shri Tejbir Singh
(All R/o Himayun Pur,
New Delhi110029 ...... Plaintiffs
Versus
Shri Phool Singh
S/o Shri Pema
(Deceased Through L.R.'s, brought on
record vide order dt 18.12.2015)
i. Naina Singh S/o Late Sh. Phool Singh
ii. Smt. Mayawati D/o Late Sh. Phool Singh
W/o Sh. Ganga Ram
R/o H. No. E207
East Vinod Nagar, Delhi91
iii. Karan Singh Grand S/o Late Sh. Phool Singh
S/o Late Sh. Desh Singh
iv. Kartar Singh Grand S/o Late Sh. Phool Singh
S/o Late Sh. Desh Singh
v. Harcharan Singh Grand S/o Late Sh. Phool Singh
S/o Late Sh. Desh Singh
(Defendants as L.R.'s No. i, iii, iv & v are R/o
Khasra No. 50/1, VillageHumayn Pur,
New Delhi29
vi. Smt. Kiran Grand D/o Late Sh. Phool Singh
W/o Sh. Gyan Chand
D/o Desh Singh
House No. G1/24, gali No. 32,
Raja Puri, Dwarka
New Delhi110059.
vii.Smt. Usha Grand S/o Late Sh. Phool Singh
CS NO. 53/2016 Page 7
W/o Sh. Manoj Kumar
D/o Late Sh. Desh Singh
R/o House No. WZ14,
VillageShakur Pur,
New Delhi - 110034
viii. Smt. Kranti Grand D/o Late Sh. Phool Singh
W/o Sh. Sonu
D/o Late Sh. Desh Singh
R/o House No. V1, Budh Vihar
Phase1, new Delhi86
ix. Smt. Kashmiri Devi Daughter in law of Late
Sh. Phool Singh
W/o Late Sh. Bhagwan Dass
x. Sh. Raj Kumar Grand S/o Late Sh. Phool Singh
S/o Late Sh. Bhagwan Dass
xi. Sh. Shiv Kumar, Grand S/o Late Sh. Phool Singh
S/o Late Sh. Bhagwan Dass
xii. Sh. Om Kumar Grand S/o Late Sh. Phool Singh S/o
Late Sh. Bhagwan Dass
xiii. Sh. Sunil Kumar Grand S/o Late Sh. Phool Singh
S/o Late Sh. Bhagwan Dass
(Defendants as LR's No. ix to xiii are R/o
House No. 203, Humayun Pur, New Delhi29)
xiv. Smt. Subh Lata Grand D/o Late Sh. Phool Singh
W/o Sh. Anil Kumar
D/o Late Bhagwan Dass
R/o House No. 540/26
Bijwasan, New Delhi
xv. Smt. Suman Verma Grand D/o Late Sh. Phool Singh
W/o Sh. Rakesh Verma
D/o Late Sh. Bhagwan Dass
R/o House No. M6, Gali No. 1,
CS NO. 53/2016 Page 8
Sangam Vihar, New Delhi62 .....Defendants
Date of filing of the Suit : 23.02.2006
Date of reserving the Judgment/Order : 18.02.2017
Date of passing the Judgment/Order : 28.02.2017
JUDGMENT:
1 This is a suit for possession, damages and permanent injunction. Facts as averred in the plaint are that plaintiffs claim to be absolute joint owner of land measuring 13 Biswa comprised in Khasra No.50/1 min. within Abadi of Village Himayun Pur, Tehsil Hauz Khas, New Delhi (hereinafter referred as suit land).
2 It is mentioned in the plaint that earlier total land of 21 Bigha and 14 Biswa was comprised in Khasra no. 50 min. of above said village, owned and possessed by proprietors of Shamlat Thok of village Himayun Pur, wherein predecessor in interest of plaintiffs had their share being coowner/joint owner. Since that land was partitioned and land measuring 2 Bigha 16 Biswa out of such Khasra no. 50 min. fell to the shares of ancestors of plaintiff herein and separate Khasra no. 50/1 min. was given and land of 2 Bigha 16 Biswa comprised in that Khasra was duly entered in the revenue record vide Khewat no. 69/68, Khatoni no. 147 (as per Jamabandi of year 194748). Mutation no. 379 regarding partition of Khasra no. 50 min was duly sanctioned on 11.10.51 in favour of predecessor in interest of plaintiffs.
CS NO. 53/2016 Page 9 3 Case of the plaintiff further is that some of the plaintiffs
herein and predecessor in interest of other plaintiffs, had filed two suits in year 1971 being suit no. 413/71 and 412/71 against defendant herein namely Sh. Phool Singh as well as one Sh. Mam Raj, seeking relief of possession in those suits, in respect of area of 200 sq. ft. (22 square yards) out of above mentioned suit land measuring 2 Bigha 16 Biswa comprised in Khasra no. 50/1 min. It was alleged in those suits that defendant herein Sh. Phool Singh and said Sh. Mam Raj had encroached upon that portion of suit land of plaintiffs. Those two suits were consolidated and decided by a common judgment and decree dt 30.10.1976 passed by the Court of Sh. L. D. Malik, the then D.J.S., SubJudge. Under the said judgment decree of possession was passed in favour of owners of the land who were held entitled to recover the possession of land measuring 200 sq. ft each from defendant herein as well as from his associate Sh. Mam Raj. It is stated that plaintiffs/ their predecessor in interest, however did not proceed to get such decree dt. 30.10.76 executed.
4 It is further mentioned in the plaint that land of above mentioned Khasra No. 50/1 min. (216) was notified under section 4, 6 & 17 of Land Acquisition Act by the Government for acquisition for public purpose i.e. Land Development of Delhi by Notification dt 03.02.1989, 21.02.1989 respectively. In which Award No. 11 /199091 was passed in respect of land measuring CS NO. 53/2016 Page 10 2 Bigah 13 Biswa out of total land of 2 Bigah 16 Biswa of above mentioned Khasra. As such acquisition award was not passed in respect of suit land measuring 13 Biswa. Because defendant herein had also filed one Civil Writ Petition no. 1270/89, before High Court of Delhi against Union of India and four others, by concealing certain true and material facts from the High Court and without impleading plaintiffs herein as party/ respondents in that proceedings.
5 It is stated that plaintiffs / predecessor in interest of some of plaintiff, however, received compensation from LAC in respect of acquisition of remaining land measuring 2 Bigha 3 Biswa as per their respective share, as mentioned in revenue record.
6 It is stated that plaintiffs / their predecessor in interest, upon coming to know about above mentioned writ petition no. 1270/89, moved an application in that proceedings to become party, on the ground that plaintiffs / their predecessor in interest are joint owner in possession of suit land, which was subject matter of that writ petition and that defendant had no right or title or interest in that land as well as on the ground that defendant herein purposely failed to implead them as respondent in that Writ Petition. It is stated that plaintiffs/ predecessor in interest despite being necessary party in the subject matter of that writ petition being owner in possession of CS NO. 53/2016 Page 11 suit land could not be made party in that proceedings as plaintiffs / their predecessor in interest unfortunately remained ignorant as to when said writ petition was coming up on board for hearing and therefore, their applications CM No.s 1701 and 1702 of 1991, were dismissed for non prosecution.
7 In that civil writ petition no. 1270/89, decided by the Hon'ble High Court on 24.02.1999, acquisition proceedings regarding suit land were quashed as a result of which suit land was released from acquisition. Consequently, plaintiffs / predecessor in interest remained owner in possession thereof. After the decision in the said writ petition, plaintiffs / their predecessor in interest moved an application CM No. 2832/99 in above said CWP No. 1270/89, for restoration of their applications and rehearing, however, this application was dismissed on 24.03.1999, with the liberty to the plaintiffs to take recourse to appropriate remedy, to impugn that judgment etc. 8 It is alleged that after the decision in the above mentioned writ petition, defendant was motivated to illegally grab the suit land of plaintiff and threatened for the same. Defendant illegally and fraudulently in collusion with revenue officials got the Khasra Girdawari entries of the suit land, entered in his name in revenue record. Those entries in the revenue record were duly challenged by plaintiffs and their predecessor in CS NO. 53/2016 Page 12 interest, by moving an application under section 36 of Delhi Land Revenue Act, for correction of Khasra Girdawai entries in their favour. In those proceedings notice was duly served upon the defendant who put appearance before Tehsildar. Proceedings, however, were adjourned sine die on 17.01.94 on the application of defendant on the ground that civil Writ was pending for disposal in High Court at that time.
9 It is alleged that defendant had been continuously attempting to grab the suit land so much so that he had moved application for correction of Khasra Girdawari of suit land before Tehsildar Mehrauli, against predecessor in interest of plaintiff, way back on 06.11.1970, same was dismissed by Tehsildar on 28.01.1972.
10 It is alleged that defendant in order to materialized his threats of dispossessing plaintiffs from the suit land, tried to illegally dispossessed plaintiff on 09.02.1996 by demolishing some of the portion of the boundary walls raised by plaintiff on its southern and northern side. Defendant also collected building material near the suit land to raise construction thereon and also engaged some laborers with a view to install jet pump therein. However, his illegal move was resisted and defendant could not succeed in his illegal design. He threatened plaintiffs/ their predecessor in interest that he would forcibly dispossessed them from the suit land. Again, on 10.02.96, CS NO. 53/2016 Page 13 defendant tried to take forcible possession of suit land, engaged some laborers with a view to raise construction, however, he could not succeed due to timely intervention of plaintiffs / their predecessor in interest. Matter was duly reported to the police. However, police did not take any action on the ground of being a civil dispute.
11 It is stated that plaintiff / their predecessor in interest have requested defendant not to take law in his hand, but defendant was adamant in his illegal intentions and therefore, challenged to grab the suit land. Plaintiffs/ predecessor in interest, therefore, filed a suit no. 85/96 for relief of permanent injunction before then Civil Judge, which was pending even till the filing of the present suit. It is mentioned that in that suit no interim injunction was granted to plaintiffs/ their predecessor in interest. MCA preferred against such order had also met with the same fate. It is alleged that by taking undue advantage of the fact that no interim stay was granted in said suit no. 85/96 and also that writ petition was decided in his favour, defendant forcibly encroached upon the suit land in first week of January 2003. Defendant started raising unauthorized construction in the middle of the suit land covering an area of about 200 sq. ft. which was seriously resisted by plaintiffs. Matter was also reported to the police. Since, police was colluded with the defendant; therefore, no action was taken. It is alleged that police rather threatened plaintiffs/ their predecessor to CS NO. 53/2016 Page 14 implicate them in criminal cases if they interfere in any manner, in such illegal act of encroachment and construction over the suit land.
12 It is alleged that defendant had raised double storey building in the middle of the suit land after removing fully grown old trees existing there. Defendant allegedly also covered small open area on both side of the structure of two rooms and a temporary tin shed has been installed, as shown in the site plan. That said two rooms and tin shed forms part of 22 sq yds of land which was subject matter of suit no. 413/71 and 85/96. It is alleged that defendant had also completed the concrete boundary wall around the suit land and has made addition / alteration at the entrance as well as boundary wall and a "chappar" which was existing at the time of filing the suit no. 85/96. It is alleged that defendant had raised unauthorized construction as shown yellow in the site plan. Plaintiffs resisted the illegal encroachment and unauthorized construction made by defendant. It is alleged that defendant on February 10, 2006 again collected building material for further raising of unauthorized construction without having any right or claim. It is stated that suit land is permanently assessed to land revenue and is governed by the provisions of Punjab Land revenue act. It is stated that suit land has not been put to agriculture pursuits since 194748 being part of old Abadi of village Himayun Pur. It is alleged that defendant had illegally CS NO. 53/2016 Page 15 let out newly constructed portion of suit land as shown yellow in the site plan and has been earning rental income of Rs. 50,000.
13 It is alleged that plaintiffs are entitled for damages @ Rs. 50,000 pm for period of 3 years immediately preceding to filing of the present suit with interest. Hence, in the present suit plaintiffs have prayed decree of possession in respect of suit land measuring 13 Biswa, being part of Khasra no. 50/1 min. of Abadi of village Himayun Pur New Delhi29. Plaintiffs further prayed for decree of damages @ Rs. 50,000 pm with interest @ 18 % pa. plaintiffs also prayed for decree of permanent injunction to restrain defendant, his associates, etc from selling, transferring, creating any third party interest or parting with the possession of suit land to any third person or from raising any unauthorized construction over it.
14 Defendant filed the WS taking the objection therein that present suit filed by 49 plaintiffs claiming themselves to be co owner / joint owner is not maintainable. Suit in present form is not proper as mandatory provisions of CPC have not been complied with as plaint is supported by affidavit of one plaintiff. Thus, suit on behalf of the remaining of the plaintiff is instituted as per law. It is further pleaded that plaintiffs / their predecessor in interest had earlier filed suit for possession in respect of area about 200 sq ft (22 sq. yds.) forming part of Khasra no. 50/1 min., against the defendant. That suit was CS NO. 53/2016 Page 16 decreed by the court of the then Civil Judge vide judgment / decree dt 30.10.76. Defendant was in possession of entire suit property and that suit was filed only in respect of part of it. Since plaintiffs have given up their claim in respect of that portion of the land, under occupation of defendant. Subsequent thereto plaintiffs have also filed a suit for injunction, wherein they have inter alia claimed themselves to be in possession of suit property. Therefore, present suit seeking relief of possession is barred under Order 2 Rule 2 CPC as plaintiffs did not seek relief of possession in the earlier suit.
15 Further objection is taken that suit has not been properly valued for the purpose of court fee and jurisdiction. It is pleaded that plaintiff has intentionally withheld certain material facts. It is stated that present suit is abuse of process of law filed to pressurize the defendant without any cause of action. Defendant has been in possession of suit property for last 60 years. Even defendant's forefathers were in possession of suit land. Plaintiffs therefore, have disentitled themselves for claiming any relief. It is stated that plaintiffs/ predecessor in interest had earlier filed a suit for injunction. In that proceedings, their application under order 39 Rule 1 & 2 was dismissed and even appeal against that order was also dismissed. Such order is binding upon the plaintiffs.
16 While denying the case of the plaintiff on merits, it is denied that plaintiffs/their predecessor in interest are joint CS NO. 53/2016 Page 17
absolute owner of suit land measuring 13 Biswa comprised in Khasra no. 50/1 min. of Abadi of village Himayun Pur. It is stated that defendant has been in possession of such land. Even forefathers of defendant were also in possession. In 1971 plaintiffs/ their predecessor in interest attempted to dispossess defendant forcibly from the suit land. Therefore, defendant lodged a complaint with police authorities. On such complaint, some of the plaintiffs/their predecessor in interest were convicted for offense u/s 323/325/34 IPC by court of ASJ on 3.3.1978. it is denied that suit land has ever been owned and possessed by plaintiffs/predecessor in interest.
17 It is pleaded that fact regarding filing of two suits in year 1971, wherein judgment pronounced by the then Sub Judge in those cases being matter of record. It is however pleaded that defendant has been in possession of entire suit land and judgment/decree dt. 30.10.1976 was never got executed by plaintiffs/predecessor in interest. Defendant has been in open, hostile and uninterrupted possession of suit land and became the owner of the same by adverse possession. It is denied that defendant had concealed any fact while filing the writ petition before Hon'ble High Court. It is also denied that Union of India had admitted the ownership of plaintiff in respect of suit land. It is also denied that defendant has been attempting to enter into possession of suit land. It is stated that in fact plaintiffs/their predecessor in interest tried to dispossess the CS NO. 53/2016 Page 18 defendant. Defendant at that time filed the suit for injunction against MCD, DDA and Commissioner of Police as plaintiffs/their predecessor in interest were attempting to dispossess the defendant from the suit land in collusion with those authorities. In that proceedings, halka patwari had recorded on 1.12.1995 that possession of suit land is with defendant and such fact was mentioned in the revenue record.
18 It is pleaded that property appurtenant to suit land, constructed by defendant is assessed to house tax with MCD. In this regard notice were issued and property tax is being deposited by defendant. Electricity connection in the property is also in the name of defendant. In the earlier suit for injunction filed by plaintiffs/their predecessor in interest in 1996, a local commissioner was appointed on 14.5.1996 for visiting the suit land comprised in Khasra no. 50/min. Local Commissioner Sh.A. P. Singh Advocate visited the suit property on 15.5.96 and gave the report in the court that defendant is in possession of suit property and has been running its business from there. While denying the different facts stated in the plaint, it is pleaded that filing of writ petition no. 1270/89 being matter of record, it is stated that applications filed by the plaintiffs/ predecessor in interest, in those proceedings were rightly dismissed. It is pleaded that plaintiffs have admitted that Khasra Girdawari entries for period prior to 1994, in respect of suit land has been in the name of defendant. Application filed CS NO. 53/2016 Page 19 by plaintiffs under section 36 of Punjab Land Revenue Act was misconceived and therefore dismissed. Plaintiffs have intentionally concealed the fact that they were not entitled for any relief as defendant has been in possession of the suit land and this fact is recorded in the revenue record.
19 It is denied that defendant has demolished any portion of the boundary wall of southern and northern side. It is pleaded that plaintiffs have never been in possession of any part of suit property as defendant has been in settled possession of the same for last six years. It is further mentioned that even otherwise when plaintiffs have admitted the possession of defendant, therefore, had filed the suit for possession, which was decreed on 30.10.1976. Despite such decree dt 30.10.1976, admittedly same was never executed and defendant has been in possession since long as such the suit of the plaintiff is otherwise barred by limitation.
20 On behalf of the plaintiffs, replication was filed, whereby the case of the plaintiff was reiterated and pleadings of defendants were controverted.
21 On the basis of pleadings as come on the record, Predecessor of this court vide order dt 10.07.2007, framed the following issues:
1. Whether the suit is not maintainable as stated in CS NO. 53/2016 Page 20 the preliminary objection no. 1 of the written statement? OPD
2. Whether the suit is properly valued for the purposes of court fees and jurisdiction? OPP
3. Whether the suit is barred u/O 11 Rule 2 CPC as alleged in preliminary objection no. 2 of the written statement? OPD
4. Whether the plaintiff is entitled for the decree of possession in respect of suit property as described in para 1 of the plaint ? OPP
5. Whether the plaintiff is entitled for the damages? If yes, then at what rate and for what period? OPP
6. Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? OPP
7. Relief.
22 On behalf plaintiff seven witnesses were examined PW1 is Jagdev PW2 is Hari Chand, PW3 is Sushil Kumar Kala, LDC from Delhi High Court, PW4 P.P. Verma, Draughtsmen, PW5 is Lalit Kumar Ahlmad from the court of Civil Judge, PW 6 is Balkishan UDC from Land Acquisition Collector, South and PW7 is the Chattarpal Singh Kanoongo, from record room Tehsil Hauz Khas.
23 On behalf of defendant, two witnesses were examined. DW1 is defendant Phool Singh whereas DW2 is Devi Ram, office Kanoongo DC Office South Delhi.
CS NO. 53/2016 Page 21 I have heard Ld. Counsels for the parties and has gone through the written arguments filed on behalf of plaintffs as well as defendant. My findings on each of the above issues are following: 24 ISSUE NO. 1 (Whether the suit is not maintainable as stated in the preliminary objection no. 1 of the written statement?) 25 Defendant in preliminary objection no.1 of his WS has taken objection that plaint is not supported by affidavit of all the plaintiffs as mentioned in the memo of parties. Order 6 Rule 15 CPC requires that plaint instituted on behalf of plaintiff should be signed and verified by the plaintiff, specifically mentioning in the verification clause as to which are those paras pleaded in the plaint based on their knowledge and which are those paras based on information received and believed to be true. Thus, the requirement of law is that plaint should be properly verified by each of the plaintiffs in terms of order 6 Rule 15 CPC. In the present case, plaint has been duly signed by each of the plaintiffs and similarly verification clause has also been signed by each of the plaintiffs, clearly specifying as to which are those paras of the plaint, based on knowledge and others being based on information received and believed to be correct. Therefore, I do not find that suit is not maintainable CS NO. 53/2016 Page 22 only because the plaint is annexed with affidavit of Jagdev Sing being one of the plaintiff. Issue stands decided in favour of plaintiff.
26 ISSUE NO. 2(Whether the suit is properly valued for the purpose of court fees and jurisdiction) 27 Plaintiffs have filed the present suit for relief of possession as well as damages. In para 23 of the plaint,
plaintiffs have valued the suit property to be Rs. 19 lacs as market price at the time of filing the suit. However, has valued the suit land as Rs. 48.50 being advolarum value , in terms of Section 7 (v) of Court fees Act and therefore furnished the court fees of Rs. 5 / only. In respect of relief of possession for land measuring 13 biswa, court fee of Rs. 5/ is furnished U/s 7 (v) of Court Fee Act, liberty though is given to value the subject matter of suit and to furnish court fee accordingly. However, it is apparent that the subject matter of the suit has been under valued and proper court fee has not been furnished.
28 Although on this issue no argument has been raised either on behalf of plaintiffs or defendants but fact remains that court has the duty to ensure that if on meaningful reading of the plaint, subject matter of the suit has not been properly valued, court cannot be mute spectator to arbitrary valuation of suit, to avoid payment of appropriate court fee. Valuation of the subject matter of suit land of remaining 13 CS NO. 53/2016 Page 23 biswa of suit land can be based as per the market value at the time of filing of suit. In Para 23 of the Plaint, plaintiff has mentioned the market value of the suit land to be Rs,. 19 lacs, therefore, valuation u/s 7 (v) of Court Fees Act must be based on the market value of suit land, at the time of institution of the suit i.e Rs. 19 lacs. Therefore, plaintiffs are liable to pay the court fee on the value of Rs. 19 lacs in view of the provisions of Section 7 (v) of Court Fee Act r/w Section 8 of Suit Valuation Act.
29 Similarly, for relief of damages it is evident from reading of plaint that plaintiffs have claimed Rs. 50,000/ per month with interest @ 18% whereas for the purpose of court fees , plaintiffs have valued the suit for relief of damages, to be only RS. 5000/ and therefore furnished court fee of Rs. 638/. No doubt, at this stage, it is not determined as to whether plaintiff is entitled for damages or not . if so, what amount of damages will be awarded. But court fee is to be furnished as per relief is granted or not. However, since suit is now at fag end. Therefore, it is being made clear for the purpose of court fee that subject to findings of this Court on the above said relief, court fee will be also payable on the amount of damages as awarded if any. Issue accordingly stands disposed off.
30 ISSUE NO. 3(Whether the suit is barred U/o II (2) Rule 2 CPC CS NO. 53/2016 Page 24 as alleged in preliminary objection of written statement?) 31 Defendant has taken the objection in the WS that earlier plaintiffs had earlier filed a suit for possession only in respect of area of 200 sq. ft. (22 sq. yards) , of khasra no. 50/1 min. Said suit was decreed in favour of plaintiffs by judgment dt. 30.10.1976. According to defendant he has been in possession of entire suit land, whereas at that time , plaintiffs sought the relief of possession in that suit only in respect of 200 sq. ft of land . As such plaintiffs have gave up their claim in respect of remaining portion of land in occupation of defendant. Moreover, plaintiffs/their predecessor in interest , had also filed suit for injunction interalia claiming to be in possession of suit land. But later present suit has been filed for relief of possession, therefore such suit is barred U/o II (2) Rule 2 CPC.
32 Order 2 Rule 2 provide that every suit must include whole of the claim to which plaintiff is entitled in respect of a cause of action and where plaintiff omits to sue or intentionally relinquish any portion of his claim, he shall not, afterwards be allowed to sue in respect of portion of claim so omitted or relinquished. So Order 2 R. 2 CPC applies to cases where a plaintiff omits to sue a particular relief based on a cause of action, on which the suit is based either by relinquishing the cause of action or by omitting a specific relief, plaintiff ought to have sought. The provision has, therefore, no application to CS NO. 53/2016 Page 25 cases where the plaintiff bases his suit on separate and distinct causes of action. In order that a plea of a bar under 0. 2 R. 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (a) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (b) that in respect of that cause of action the plaintiff was entitled to more than one relief; (c) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed.
33 If we go through evidence it would be clear that earlier suit for possession filed on behalf of plaintiff/predecessor in interest was only in respect of 22 sq. yards of land of same khasra. However, with the claim and cause of action that only that portion of land was in unauthorized occupation of defendant. A meaningful reading of the plaint of present suit would show that plaintiff have specifically alleged that it is in January 2003 defendant while taking benefit of the fact that no stay order was passed in Suit no. 85/96, therefore illegally encroached the suit land. Apparently, the cause of action for filing the earlier suit in 1971 which was decreed in 1976, or the cause of action for filing the suit in 1996 and the cause of action for filing the present suit, are different. Therefore, order 2 Rule 2 does not apply. Issue therefore stands decided against the defendant and in favour of plaintiff.
CS NO. 53/2016 Page 26 34 ISSUE NO. 4 (Whether the plaintiff is entitled for the decree of possession in respect of suit property as described in para 1 of the plaint?) OPP 35 Onus to prove this issue is upon plaintiff. Before I examine the evidence, it be noted that there is no much dispute with regard to the fact that suit land was earlier a part of khasra no. 50 min. of total land 21 bigha 13 biswa. Said land was partitioned in 1951 and land of 2 bigha 16 biswa fell to the shares of predecessor in interest of plaintiffs, in respect of that land separate khasra, being khasra no. 50/1 min. vide revenue record mutation no. 379. Jamabandi for year 194748 is Ex. PW 1/1.
36 It is also not much in dispute that earlier plaintiffs/their predecessor in interest had filed two suits no. 412/71 and 413/71 against defendant herein Phool Singh as well as one Mamraj in respect of land measuring 200 sq. ft of same khasra no 50/1 min. These two suits were consolidated and decreed by a common judgment dt. 30.10.1976. It is also not disputed that despite passing of decree in above said suits, plaintiffs/their predecessor in interest have not filed any execution, for period more than 13 years as prescribed in law. As such, plaintiffs have relinquished their rights in respect of 22 sq yard of land out of suit land of the above said khasra.
CS NO. 53/2016 Page 27 37 It is also not much of dispute that out of total land of 2
bigha 16 biswa of above mentioned khasra, land measuring 2 bigha 13 biswa was acquired. After the acquisition plaintiffs/their predecessor in interest got the compensation under the award dt. 30.1.1991 which is Ex. PW 1/ 17. It is also matter of record that in view of writ petition no. 1270/89 filed by defendant herein before High Court acquisition of suit land was quashed. Dispute has been left only with regard to 13 biswa of land of khasra no. 50/1 min as in respect of this suit land defendant claims to be in possession for last about 60 years from the time of his forefathers. Whereas plaintiffs claim that they have been owner in possession of suit land till January 2003 when defendant illegally encroached upon the suit land and therefore present suit was filed.
38 Here it is very important to note that issue of ownership as well as issue of possession over suit land are involved. It is, however, not in dispute that plaintiffs/ their predecessor in interest are registered owner of suit land. Defendant when appeared in witness box as DW1, has admitted in cross examination that he has not been shown owner of suit property in revenue record. Defendant has also admitted that he had not made application before Tehsildar claiming to be owner. Defendant thus is contesting the suit of plaintiffs essentially on two counts, first defendant claims to have become owner of suit CS NO. 53/2016 Page 28 land by adverse possession. Secondly, that defendant has claimed his long possession i.e. for period more than 12 years preceding to filing the present suit. Therefore, suit of plaintiffs, otherwise is barred by limitation. In such factual background and admitted facts, let us examine the evidence as come on record and to evaluate the rival claims of the parties.
39 Both PW 1 and PW2 in their affidavit of evidence have testified that plaintiffs / their predecessor in interest had been in actual possession of suit land since its partition in 1951 till Jan 2003, except the area of 200 sq. fts (22 sq yds.). PW1 and PW2 further testified that defendant on 03.11.1970 had moved an application before Tehsildar Mehrauli for cancellation of mutation of plaintiffs / predecessor in interest, in respect of suit land, which was dismissed by Tehsildar vide order dt 28.01.1972, Ex.PW1/12. PW1 and PW2 thereafter had referred to filing of two suits no. 412 and 413 / 71 against defendant and Mamraj. PW1 and PW2 have also proved the certified copy of judgment dt 30.10.76, Ex.PW1/13 and PW1/14 and site plan Ex.PW1/15. These documents are not disputed.
40 In this context, I find appropriate to discuss the evidence of defendant because defendant is claiming to be in possession of suit land for more than 60 years and therefore, claiming to be owner by way of adverse possession. No doubt, no specific issue has been framed on such claim of defendant. However, since this aspect has been raised during the arguments, moreover, CS NO. 53/2016 Page 29 involves mixed question of law and fact, therefore, this aspect is required to be decided.
41 In this regard, before I examine evidence on record, I find it appropriate to precisely discuss requirements to sustain a claim of being owner by adverse possession. Adverse possession means a hostile assertion i.e. a possession which is expressly or impliedly in denial of title of the true owner. Under Article 65, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. Where possession could be referred to a lawful title, it will not be considered to be adverse. Thus, 'Animus possidendi' is one of the ingredients of adverse possession. In Karnataka Board of Wakf v. Government of India and others (2004) 10 SCC 779, it was observed:
"Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of Adverse possession is not a pure question of law CS NO. 53/2016 Page 30 but a blended one of fact and law. Therefore, a person who claims Adverse possession should show :
(a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party,
(d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
42 Another important facet of adverse possession is that by virtue of being in possession, is not sufficient, it is to be established that possessor has taken an adverse stance to the title of the true owner and disputes the same, although the prescribed period. Therefore a mere possession or user or permissive possession does not remotely come near the spectrum of adverse possession. Possession to be adverse has to be actual, open, notorious, exclusive and continuous for the requisite frame of time as provided in law so that the possessor perfects his title by adverse possession.
43 In P.T. Munichikkanna Reddy and Others v.
Revamma and Others, (2007) 6 SCC 59, it has been opined CS NO. 53/2016 Page 31 that adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a wellsettled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.
44 Thus, it is to be borne in mind that adverse possession, as a right, does not come in aid solely on the base that the owner loses his right to reclaim the property because of his willful neglect but also on account of the possessor's constant positive intent to remain in possession. Since person claiming to be in hostile possession, therefore by necessary requirement there must be specific evidence that from such date possession of has become hostile and then remained hostile, open and continuous qua rightful owner, for prescribed period, so that it perfected into ownership by adverse possession.
45 Keeping above discussed legal proposition in mind, if I examine the evidence on record, first of all defendant has not established on record his adverse possession over suit land. Even if, for the time, I may assume the possession of deceased CS NO. 53/2016 Page 32 defendant over the suit land. But possession how so long it may be, by itself is not sufficient to claim ownership by adverse possession. There was necessity of evidence to show hostile possession of defendant over suit land. In other words, possession of defendant clearly deny ownership of plaintiffs/ their predecessor in interest. So such hostile possession is not proved by any evidence. Nor even DW1 has uttered a single word in his entire evidence, that he has been in possession of suit land, in denial to ownership of plaintiffs/ their predecessor in interest.
46 Another legal ingredient required to prove for establishing defence of adverse possession is that there should be specific evidence as to when the possession of defendant was hostile, open and in denial to ownership of recorded owner. Then evidence should be there to prove that such hostile and open possession, continued as such for 12years, to debar plaintiff to seek possession. There is nothing in entire evidence of DW1 as to when alleged possession of defendant was hostile to recorded owner and when such hostile possession, perfected into ownership by adverse possession, upon completion of 12 years. So precisely speaking there is no evidence of those 12 years of hostile possession over suit land. When such period had started and when it completed.
CS NO. 53/2016 Page 33 47 Here it be noted that defendant in affidavit of
examination in chief, nowhere testified about his 'adverse possession'. This aspect assume importance because when predecessor in interest of plaintiffs had earlier filed suits in 1971, for land of 200 sq. ft. against defendant and Mam Raj. Even in that suit also defendant has claimed ownership by adverse possession. However, judgment dt 30.10.1976 of the then SubJudge, would show that such plea was not accepted and suit for that portion of land was decreed. It may be separate aspect that such decree was never got executed and therefore, so far as that portion of 200 sq. ft. defendant may claim ownership by adverse possession. So in such background, when one judicial finding had already come that defendant has failed to prove adverse possession. It was all the more necessary for deceased defendant to give specific evidence of starting and completion time of his alleged hostile possession. Since there is no such evidence. I have no hesitation to conclude that plea of defendant of being owner of entire suit land measuring 13 biswa, by adverse possession, is not proved. It was argued by Ld. Counsel for the defendant that without prejudice to claim of adverse possession, even if adverse possession may not be established, still suit of plaintiffs is liable to be dismissed on limitation because there is sufficient evidence on record, showing possession of defendant over suit land, much prior to 12 years preceding to filing of present suit in year 2006.
CS NO. 53/2016 Page 34 48 So Ld. Counsel for defendant has alternatively argued
that even if defendant may not be proved to be owner by adverse possession, still suit of plaintiff is liable to be dismissed on limitation, upon proof of continuous possession of defendant for 12 years or more, before filing present suit. This court is conscious of fact that onus to prove issue under consideration is on plaintiffs. But in order to decide the issue, property in question of adverse possession or continuous possession of defendant is required to be examined, first.
49 Let us therefore now consider different evidence led on behalf of defendant to prove his continuous possession over suit land prior to filing this suit, for 12 years prior to January 2003.
50 DW1 Phool Singh in his evidence has claimed to be in possession of suit land measuring 13 biswa forming part of khasra no. 50/1 min. for last 60 years. DW 1 says that since the time of his forefathers, they have been in possession of suit land. In this regard DW1 relied upon certified copies of Khasra Girdawari for year 1988 to 1998 which are collectively exhibited as Ex.DW1/1 (Ex.DW2/A). Perusal of the same shows that in para 2 of the khasra girdawari names of plaintiffs / predecessor in interest are mentioned as recorded owners, it is mentioned in this document that there is an open land within the abaadi of village Himayun Pur. In this document name of defendant is CS NO. 53/2016 Page 35 not mentioned being in possession of land measuring 13 biswa comprised in khasra no. 50/1 min. in P5. As such these khasra girdawaris do not establish the possession of defendant over the suit land. While there is no dispute to the fact that defendant has been in possession of 22 sq. yds. of land in the same khasra since 1971 or prior thereto however, his possession in remaining portion of suit land comprised in khasra no. 50/1 min. is not established by this document. This document has otherwise not been properly proved in the evidence of DW1 because these documents were required to be proved by summoning the Patwari with original revenue record.
51 In this regard, ld. Counsel for the defendant has also referred to evidence of PW7 in whose cross examination also it has come that as per the record of khasra girdawari of year 19941998 of khasra no. 50/1 min., it is mentioned that entire land except land measuring 13 biswa of that khasra, has already been acquired and Phool Singh is shown in possession of 13 biswa of land. Now, if we consider this document Ex.PW7/2, as proved in the evidence of PW7, it would be clear that evidence of PW7 in his crossexamination is contradictory to the record. Perusal of the document Ex.PW7/2 does not mention anywhere that in the entire suit land of 13 biswa of above mentioned khasra, name of deceased / defendant is mentioned in column no. 5. it be noted here that when defendant was admittedly not recorded owner of the land in CS NO. 53/2016 Page 36 question, in such situation, if defendant has been in exclusive possession, his name would have been entered in P5, specifically mentioning about his exclusive possession. Whereas, such fact is not mentioned in document Ex.PW7/2.
52 As against this evidence of defendant, if I precisely examine evidence of PW1 and PW2. These two witnesses of plaintiffs have testified that they had been in actual possession of suit land since it's partition in 1951 till they were dispossessed in January 2003, except an area of 22 sq. yds. PW 1 and PW2 have also referred to an application dt 03.11.1970 filed by defendant before Tehsildar, Mehrauli, for cancellation of mutation of plaintiffs/ their predecessor in interest, in respect of suit land. Such application was dismissed vide order dt 28.01.1972 Ex.PW1/12. This fact is matter of record. This order Ex.PW1/12, at least show that plaintiffs/ their predecessor in interest, were recorded owner of suit land beside land measuring 2 bigha and 3 biswa. No doubt as pointed by Ld. Counsel for the defendant, in that order Ex.PW1/12, Ld. Tehsildar had made observation, that possession of defendant though is established but mutation cannot be cancelled. No much benefit can be taken from such observation in order of Tehsildar. Firstly, because order Ex.PW1/12, does not mention about possession of defendant over entire suit land measuring 12 biswa. This order was passed in 1972, during that period, parties were already in litigation, as predecessor in interests of CS NO. 53/2016 Page 37 plaintiff had filed suit for possession of 200 sq. fts of land in same khasra. Therefore, such observation of Tehsildar, only goes to show that defendant was in possession of some land, in khasra No. 50/1 min.
53 PW1 and PW2 have also testified about acquisition of land measuring 2 Bigha, 3 Biswa of same khasra No. 50 /1 min. of Village vide Award No. 11/199091 dt 31.01.1991, which is Ex.PW1/17. Plaintiffs / their predecessor in interest have received compensation of that land by certificates Ex.PW1/18 to Ex.PW1/39. This fact is also proved in evidence of PW6. This fact is not disputed. So it show that plaintiffs/ their predecessor in interest are registered owner of entire khasra including suit land.
54 Plaintiffs have examined PW7 Chattar Pal Singh from office Kanoongo, Tehsil Hauz Khas. PW7 has testified that as per khasra Girdawari of year 1994 to 1998 of khasra No. 50/1 min. , land is mentioned in name of Khajan Singh, Dilip Singh (plaintiffs), this document is Ex.PW7/2. PW7 also prove mutation No. 379 which is collectively Ex.PW7/3. PW7 has also proved khasra Girdawari of year 197175 which is Ex.PW7/1. This court has above discussed the cross examination of PW7. PW7 in his crossexamination, has testified about khasra Girdawari of year 1994 to 1998. PW7 further says about possession of defendant Phool Singh in 13 CS NO. 53/2016 Page 38 Biswa of land in khasra no. 50/1 min. But this witness has not proved any document to show recording of possession of such land with defendant.
55 Let us now consider the another aspect of the matter. It is matter of record that defendant earlier in 1989 had filed one writ petition no. 1270/89 before Hon'ble High Court, in which defendant had also claim to be in possession of entire suit land and challenged the acquisition proceedings. It is also matter of record that said writ petition was allowed by Hon'ble High Court by order dt 24.02.1999 whereby acquisition so far as suit land is concerned was quashed. It is also not disputed fact being matter of record that in that case, plaintiff's / predecessor in interest were not made party in that writ petition. Plaintiffs / predecessor in interest tried to be impleaded as a party in that writ petition by filing application however, that application was dismissed for non prosecution. Perusal of the judgment of Hon'ble High Court dt 24.02.1999 Ex.PW1/43 would clearly show that Hon'ble High Court confined its consideration to proprietary of the acquisition process. And found that acquisition so far as suit land is concerned is liable to be quashed. In the concluding paras of judgment of Hon'ble High Court, when it was contended on behalf of MCD that defendant Phool Singh is in unauthorized occupation, it was made clear by the Hon'ble High Court that even if certain revenue records have been relied upon to show possession, but High Court held CS NO. 53/2016 Page 39 that there is no necessity for giving any finding on this aspect. It was also made clear in the judgment that it will be open for parties to agitate their rights in appropriate proceedings. These observations clearly show that Hon'ble High Court had not taken into consideration the issue of alleged possession of defendant over the suit land. Therefore, the judgment of High Court also does not establish the case of the defendant.
56 DW1 in his evidence has further testified that property was being assessed for the purpose of house tax with MCD and one notice dt 29.03.1991 was received to defendant, which is Ex.DW1/2. Pursuant to such notice, defendant stated to have filed a letter dt 04.06.1992, with office of MCD Ex.PW1/3, requesting for amendment. DW1 further referred to objections dt 29.04.1991 deposited with office of MCD which are Ex.DW1/4 and notice dt 04.03.94 is ExDW1/5. These documents if read in totality, cannot be considered to be an evidence of exclusive possession of defendant over the suit land. These documents do not establish the possession of defendant on the entire 13 biswa of land in question. Even if such notices were issued, from MCD. When defendant was admittedly in possession of 22 sq. yds. of the khasra no. 50/1 min., therefore, such notices, objections do not establish the possession of defendant in the entire suit land. Similarly, electricity bills Ex.DW1/6 of Sept. 1996, Nov. 1996 and Oct. 1997, in the name of defendant have no much bearing for establishing the possession in the entire suit land, simply CS NO. 53/2016 Page 40 because defendant was in possession of 22 sq. yds of land over which admittedly certain rooms were constructed. Therefore, there can be a possibility of fact that such electricity bills may pertain to that portion of land. Even otherwise, electricity bills, are not sufficient to establish possession. Defendant in order to prove possession in the suit land has further testified that in 1985, he was tried to be dispossessed from the suit land by officials of MCD and DDA. Therefore, DW1 stated to have filed one suit for injunction against DDA, MCD and Commissioner of Police. DW1 says that said suit was disposed off by then Civil Judge vide judgment dt 22.04.2000 Ex.DW1/10 holding therein that defendant is in actual physical possession of 13 biswa of suit land. DW1 has also testified that on 30.01.1985 demarcation was carried out in suit land in the presence of Tehsildar, Official of MCD. Such demarcation report is Ex.DW1/8. DW1 says that in the above mentioned suit filed by him, statement of Patwari, Halka Patwari, of village Himayun Pur and Patwari Land Acquisition were recorded on 27.07.1985. These statements are Ex.DW1/9 (Colly.) 57 Having considered such evidence of DW1, first of all, it be noted that in such suit of injunction against DDA, MCD etc, defendant has not made plaintiffs/ their predecessor in interest as party in the suit. Apparently, explanation in this regard is that since apprehension of dispossession was against officials of DDA and MCD etc. , therefore, plaintiffs were not made party.
CS NO. 53/2016 Page 41 If that was the situation, a findings / judgments in that suit Ex.DW1/10, then obviously cannot be relied upon against the plaintiffs when they were not party in that suit. Even upon going through the judgment dt 22.04.2000 of then Civil Judge Ex.DW1/10, this judgment in itself cannot be an evidence to prove continuous possession of defendant over the suit land. In that case issue was regarding raising of a wall on the suit land, and considering the evidence as come on the record, Civil Judge restrained different authorities from interfering in the possession of plaintiff in that case. One of the most important document relied upon by the defendant in this case is Demarcation Report dt 30.01.1985 Ex.DW1/8. In order to prove this demarcation report , defendant has also examined DW2, Devi Ram, office Kanoongo from DC Office South.
58 This DW2 has testified that he has brought the record pertaining to such demarcation report of Khasra No. 50/1 min. of village Himayun Pur in respect of 13 biswsa of land in said khasra which is already Ex.DW1/8. DW2, also refer to khasra girdawari of said land pertaining to period of 197275 as well as from period from 198892, which is exhibited as Ex.DW2/A. 59 Regarding demarcation report Ex.DW1/8, this witness states in cross examination that there was no specific order passed on any application for demarcation. DW2 further admits that as per revenue rules, notice is required to be given CS NO. 53/2016 Page 42 to all concerned parties including recorded owner, before demarcation proceedings. DW2 admits that no notice was found on the record brought by him to show that any such notice was issued to recorded owner at the relevant time, before demarcation. DW1 further admits that he has no personal knowledge about the demarcation report and other revenue record.
60 Now, considering such evidence of DW1 and DW2 in the light of demarcation report, Ex.DW1/8, first important aspect to be noted is that alleged proceedings of demarcation were carried out in the absence of recorded owner which are admittedly plaintiffs/ their predecessor in interest. There is no explanation coming forth from the defendant as to why demarcation proceedings were carried out at the back of recorded owner. Now, if we go through the demarcation report Ex.DW1/8 , even in that report it is mentioned that khasra no. 50/1 min. is mutated vide mutation no. 379 which is admittedly in the name of plaintiffs / their predecessor in interest. In the entire demarcation report, no centre point was fixed. Though it is mentioned that corner of khasra no. 49 is the point where from khasra no. 50/1 starts. Perusal of such demarcation report, to my mind does not completely satisfy the legal requirement, firstly because generally demarcation is to be carried out in those situation when there is doubt as to the exact identity of particular land situated in particular khasra or there is dispute CS NO. 53/2016 Page 43 regarding boundaries of khasra numbers. So that exact area of land may be properly identified and khasra number may also be identified. Such was not the situation in this case as due mutation no. 379 was already given and there was no dispute regarding exact identity, boundaries of different khasra numbers and location of the land. Thus, it is not understandable as to why such demarcation proceedings were carried out. This fact assumes even more importance when DW2 has admitted in his evidence that he has not found any specific application for carrying out the demarcation. There being no order of Patwari also in this regard. Most importantly, such demarcation was carried out at the back of recorded owner and there is no explanation as to why it was so done. As per the rules under Delhi Land Revenue Act, it is obligatory on the part of revenue officers to carry out the demarcation in the presence of recorded owners and to call upon objections if any. In this case, no such procedure was followed. Law in this regard is well settled that a demarcation proceedings carried out in the absence of recorded owners cannot be read against such recorded owner. Therefore, for reasons stated above , I find that defendant can hardly take any benefit of such demarcation report Ex.DW1/8.
61 DW2 has also referred to khasra girdawaris Ex.DW2/A, though this aspect has already been examined earlier. But, I find appropriate to mention here that defendant is relying upon CS NO. 53/2016 Page 44 P5 to substantiate his claim of being in possession. As per revenue rules and practice, if other person than recorded owner claims to be in possession of a particular land, his name will be mutated in P5 only upon an application moved in this regard. Defendant in the entire evidence has failed to prove any application moved before Patwari for mutation of his name in P 5 on the basis of possession. Therefore, khasra girdawari Ex.DW2/A in itself surrounded with suspicion. Moreover, DW2 himself had admitted in his crossexamination that such khasra girdawari Ex.DW2/A has not been signed or initialed by any revenue officials. A revenue record, without signatures of revenue official has no legal value rather can be described to be fabricated document.
62 If I proceed to examine other aspect of the matter that one suit for injunction was also filed by plaintiffs / their predecessor in interest, in year 1996. Plaintiffs have mentioned about this suit in their plaint, while stating that when defendant was trying to forcibly dispossess plaintiff from the suit land by raising boundary wall on its southern and northern side by collecting building material near the suit land to raise the constructions, such suit for injunction was filed against the defendant herein. It is not disputed fact being matter of record that in that suit of plaintiff, interim injunction application of plaintiffs was dismissed in that suit no. 85 / 96. Appeal against the order of Civil Judge was also dismissed by then ADJ in CS NO. 53/2016 Page 45 MCA. It is testified by DW1 that in that Civil suit of plaintiff, Local Commissioner was appointed by the court to visit the suit property and to file the report. Accordingly, LC visited the suit land and filed his report which is Ex PW5/DX1. Defendant therefore, has relied upon this LC report. Perusal of this LC report shows that LC noted the boundary wall around the suit land and also found two big rooms and one covered tin shed room constructed by defendant. In Para 10 of the report of LC, it is mentioned that defendant is in physical possession , two covered tin shed room and one tin shed . As such, the report of LC does not specify about exclusive possession of defendant over the entire suit land of 13 biswa. Therefore , such report of LC can hardly be an evidence of continuous possession of defendant over the suit land.
63. From the above discussion of different evidence relied upon by the defendant, it can be held that defendant has not been able to establish, even by preponderance of probabilities the factum of his continuous physical possession over the entire suit land for period of 12 years or more preceding to January 2003, to establish that claim of the plaintiff for possession in the present suit is barred by limitation. Here it is also necessary to precisely mention that one site plan is Ex. PW 1/41 which was relied upon by the defendant at the time of filing writ petition no. 1270/89 , another site plain is Ex. PW 1/45 relied upon by plaintiffs in above mentioned suit no. 85/96 and there is one rough sketch /site plan given by LC along with his report in the CS NO. 53/2016 Page 46 said suit no. 85/96 which is Ex. PW 1/66. On examining these three site plans , it would be evident that these site plans prepared at different points of time , however one similarity in all these site plans is that defendant has been shown to be in possession of two rooms and one tin shed in western side of Khasra no. 50/1 min. Thus, from examining the entire evidence and the documents proved on record, it can be easily concluded that defendant has failed to establish its continuous possession over the suit land.
64. On the other hand, the evidence of plaintiff more specifically PW1 and PW2 in the light of admitted facts as enumerated above clearly establishes the ownership of plaintiffs/their predecessor in interest. Suit land being situated in abadi of village Humayun Pur and an open land, there is always a presumption that possession over an open land is with the owner of the same. Beside this, I have already noted that evidence of PW1 and PW2 have been consistent on all material facts stated in the plain and have been duly corroborated by PW3 to PW7. From such discussion, I conclude that plaintiff has been able to establish his claim for seeking possession against defendants. Issue accordingly stands decided in favour of plaintiff and against defendants.
65. ISSUE NO. 5Whether the plaintiff is entitled for the damages?
If yes, then at what rate and for what period? OPP CS NO. 53/2016 Page 47
66. I have already discussed the evidence of the parties while deciding the issue no. 4 and has come to the conclusion that plaintiff has been able to establish his claim for possession. In the present suit, plaintiff has sought damages @ Rs. 50,000/ per month with interest for period of three years immediate preceding to filing of the present suit, regarding unauthorised occupation of defendant over the suit property. PW1 and PW2 in Para 18 of their respective affidavits of examination in chief have simply stated in this regard that suit land could easily fetch rent of Rs. 50,000/ per month which is a prevalent rate of rent in that locality. However such claim of plaintiffs is not substantiated by any documentary evident while taking the enquiry within order 20 Rule 12 CPC . Mere bald assertion of the fact that land could fetch Rs. 50,000/ as rent, was not sufficient for substantiating the claim of damages as prayed in the present suit. Thus in the absence of any such evidence, coming forth from plaintiff, I find that considering the market value and the location of this property, a damages @ Rs. 15,000/ per month will be appropriate and proper. Accordingly this issue stands decided with the findings that plaintiffs are entitled to damages for unauthorised occupation of the defendant over the suit land @ Rs. 15,000/ per month for period of three years immediately preceding to filing of the present suit. Issue accordingly stands decided.
CS NO. 53/2016 Page 48 67. ISSUE NO. 6 (Whether the plaintiff is entitled for the decree of permanent injunction as prayed for?) OPP Plaintiffs in the present suit have also sought the decree of permanent injunction to restrain defendant from creating any third party interest. In view of my findings on issue no. 4, I find that plaintiffs have established their legal right in the suit land and therefore are entitled for decree of permanent injunction. Defendant or their legal representative, therefore, are restrained from selling, transferring, alienating, creating any third party interest in respect of suit land measuring 14 biswas comprised in Khasra no. 50/1 min. Issue accordingly decided in favour of plaintiffs and against defendant.
68. Relief
69. In view of my findings on the above said issues, suit of the plaintiffs stands decreed. Plaintiffs are entitled to decree of possession in respect of suit land measuring 16 biswa comprised in Khasra no. 50/1 min. of Village Himayun Pur, except an area of land measuring 22 sq.yards of the same khasra regarding which plaintiffs have lost their right to get possession under earlier decree. It is, however, being made clear that decree in favour of plaintiffs will be executable only when plaintiffs will furnish court fee in terms of Section 7 (v) of Court Fee Act on valuation of Rs. 19 lacs as per findings of this court on issue no.2.
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70. Plaintiffs are also entitled for damages @ Rs. 15,000/ per month for period of three years preceding to filing of present suit. Plaintiffs are also liable to furnish court fee on the amount of damages so awarded.
71. Plaintiffs are also entitled for decree of permanent injunction against the defendant, thereby restraining him and his associates , employees, workmen and agents or any person acting through him or on his behalf from selling, transferring, alienating, creating any third party interest and/or parting of possession of the same to any third person and raising any further construction and making any addition/alteration of any kind in the suit land.
72. Suit stands decreed with cost. Decree sheet be prepared accordingly.
73. File be consigned to Record Room.
(SHAILENDER MALIK) ADJ03 (CENTRAL) TIS HAZARI COURTS:DELHI ANNOUNCED IN THE OPEN COURT ON 28TH DAY OF FEBRUARY, 2017 CS NO. 53/2016 Page 50