Smt. Kusum Lata Tyagi vs Smt. Parmod Atri on 23 May, 2020

[Cites 23, Cited by 0]

Delhi District Court

Smt. Kusum Lata Tyagi vs Smt. Parmod Atri on 23 May, 2020

     IN THE COURT OF ADDITIONAL DISTRICT JUDGE05,
         SOUTH WEST, DWARKA COURTS, NEW DELHI


Civil Suit No: 1110/17

Smt. Kusum Lata Tyagi
W/o Sh. Umesh Tyagi
R/o 46 & 47, Gali No.12,
Gupta Enclave, Vikas Nagar,
Uttam Nagar, New Delhi.                                     ....Plaintiff

                versus

1.     Smt. Parmod Atri
       W/o Sh. Sushil Mohan Atri,
       R/o WZ66B, Manohar Nagar,
       Vikas Puri, New Delhi18.

2.     Ms. Nupur Atri
       D/o Sh. Sushil Mohan Atri
       R/o WZ66B, Manohar Nagar,
       Vikas Puri, New Delhi18                             ....Defendants




     SUIT FOR POSSESSION, PERMANENT AND MANDATORY
                       INJUNCTION


       Date of institution                          :       11.12.2017
       Date when judgment reserved                  :       19.03.2020
       Date of Judgment                             :       23.05.2020



CS No.1110/17            Kusum Lata Tyagi vs. Parmod Atri & Anr.         Page 1 of 74
      JUDGMENT:

1. Vide this judgment, I shall decide the present suit filed by the plaintiff for possession, permanent and mandatory injunction against the defendants.

2. The case of the plaintiff as set out in the plaint is summarized as under: 2.1. The plaintiff is the sole and absolute owner of property bearing No.6A measuring 28.47 sq yds out of Khasra No. 18/21 situated in the area of Village Hastsal Colony known as Central Market Block B 1, Vikas Nagar, Uttam Nagar, New Delhi (hereinafter referred to as "suit property").

2.2. Initially, one Pandit Ram Chander was the Zamindar and was in possession of land measuring one bigha out of Khasra No.18/21. Pandit Ram Chander sold the said land to one Jawahar Lal vide documents dated 07.04.1998. Sh. Jawahar Lal divided his land into several small pieces and numbered them privately from 1 to 50. He CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 2 of 74 made special arrangement with regard to Plot No.1 to 20 as the portion falling towards western side were given numbering from 1 to 20 while rear portion of the same plot was numbered 1A to 20A. Meaning thereby Plot No.7A is situated just behind the plot No.7 and similarly Plot No.6A is situated just behind the Plot No.6. After cutting the said land into several pieces, Sh. Jawahar Lal sold the same to different persons and during the said process, the suit property i.e. Plot No.6A was sold by him to one Sh. Ram Lal Popli for a sale consideration of Rs.45,000/ and signed and executed registered GPA, registered Will and Agreement to Sell and Receipt, all dated 20.03.2003 and also handed over the vacant and peaceful possession at the site. 2.3. Sh. Ram Lal Popli died intestate and his wife and four sons and one daughter became the joint owners having 1/6th share each but the sons and daughter relinquished their share in favour of their mother Smt. Rama Popli and as such Smt. Rama Popli became the absolute owner of Plot No. 6A.

2.4. Smt. Rama Popli sold the suit property to the plaintiff vide GPA, Agreement to Sell, Will, Affidavit, Receipt, Indemnity Bond, all CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 3 of 74 dated 23.03.2015 against sale consideration of Rs.4.50 lacs and also handed over the possession of the same to the plaintiff. 2.5. On 25.09.2016, plaintiff received a telephonic information from the neighbours of the suit property that defendant No.2 and her associates has been raising construction over the suit property. Plaintiff reached there and objected stating that she is the sole and absolute owner of the plot but defendant No.2 did not pay any heed and claimed ownership of her mother i.e. defendant No.1 over the suit property. The plaintiff tried to explain the defendant No.2 that number of suit property is 6A and her mother has no right or claim over the suit property and told that property No.6 is just behind the suit property, but she did not pay any heed to the submissions of the plaintiff.

2.6. The property bearing No.6 of the defendant No.2 has either been trespassed by some other person or it has been sold by defendant No.2 but despite this she wants to grab the suit property by impersonating it as property No.6, but in fact property No.6 is at the rear side of the suit property.

2.7. The defendant No.1 had earlier filed a suit for possession CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 4 of 74 against the husband of the plaintiff claiming therein that she is the owner of property bearing No.6 and 7A. The said suit was decreed by Ld. Civil Judge vide judgment and decree dated 07.09.2013. The appeal filed by husband of the plaintiff was dismissed vide order dated 30.06.2015. After dismissal of the appeal defendant No.1 along with her husband visited the spot for taking possession of her property i.e. 6 & 7A without filing the execution and appointment of the baillif but could not succeed. Defendant No.1 filed a contempt petition and the Court of Sh. Chander Mohan directed the SHO to render assistance to the defendant No.1. Taking advantage of this fact, the defendant No.1 showed the property No.6A and 7A as property No.6 & 7A and played fraud not only upon the plaintiff but also upon the Court and took the possession of the suit property under the garb of property No.6.

2.8. The plaintiff had earlier filed a suit for permanent injunction as there was urgency but due to certain technical defects same was withdrawn with a liberty to file fresh one. Hence, the plaintiff has filed the present suit.

2.9. The plaintiffs by way of present suit has prayed for following CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 5 of 74 reliefs:

a) a decree of possession in her favour and against the defendants in respect of property bearing No. 6A measuring 28.47 sq. yds. out of Khasra No. 18/21 situated in the area of Village Hastsal Colony known as Central Market Block B1, Vikas Nagar, Uttam Nagar, New Delhi;

b) a decree of permanent injunction to restrain the defendants, their legal heirs, successors, agents etc. from selling, alienating or creating third party interest in the suit property and also from raising any construction over the suit property;

c) decree of mandatory injunction directing the defendants to demolish the construction carried over the suit property.

3. The defendants contested the suit by filing the joint written statement contending that : 3.1. Suit is barred under Order 2 Rule 2 CPC since the plaintiff had earlier filed a suit for permanent injunction in respect of the same property between the same parties and the suit of the plaintiff was rejected under Order 7 Rule 11 CPC. The present suit has been filed under a preplanned conspiracy with her husband by the plaintiff since defendant No.1 had already obtained a decree against the husband of the CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 6 of 74 plaintiff from the Court of Ld. Civil Judge, Tis Hazari vide judgment and decree dated 07.09.2013 which has been upheld by the Appellate Court. The defendant No.1 had filed a contempt petition against the husband of the plaintiff as well as local police and the Court of Sh. Chander Mohan, Ld. Civil Judge, had directed the police officials to provide all assistance to defendant No.1 for carrying out complete boundary wall and a gate over the property.

3.2. The plaintiff has concealed the true facts and stated the wrong facts that defendant No.1 had earlier filed a suit for possession against the husband of plaintiff, whereas the defendant No.1 had filed a suit for permanent and mandatory injunction against the husband of the plaintiff. 3.3. Suit is not maintainable as defendant No.1 is the lawful owner and in possession of suit property by virtue of registered sale deed dated 26.10.2004.

3.4. The plaintiff has not properly valued the suit and has not paid the appropriate court fee.

3.5. The plaintiff has based her title on the basis of forged and fabricated documents which has no legal sanctity as the same are only CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 7 of 74 notarized and no title can be said to have been transferred by virtue of the notarized documents.

3.6. It is denied that plaintiff is owner of suit property. It is denied that Jawahar Lal divided his land into several pieces or gave them private number. It is stated that real number of suit property is 6 & 7A measuring 46 sq yds out of Khasra No.18/21, situated in Village Hastsal Colony, Uttam Nagar, New Delhi of which defendant No.1 is the lawful owner and is in possession.

3.7. It is denied for want of knowledge that Pandit Ram Chander sold his land to Jawahar Lal who subsequently sold the same to different persons and Plot No.6A was sold by him to one Ram Lal Popli. It is stated that on 25.09.2016, defendant No.2 along with her grandfather and masons and labourer constructed the boundary wall as per the directions of Sh. Chander Mohan, the then Ld. Civil Judge. 3.8. It is denied that suit property bears No.6A and in fact the property bears No.6 and 7A and not any other number as referred by the plaintiff.

3.9. The other contents of the plaint are stated to be wrong and CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 8 of 74 denied and defendant have prayed for dismissal of the suit.

4. The plaintiff has filed replication to the written statement in which the averments made in the plaint have been reiterated and reaffirmed and those made in the written statement have been controverted.

5. From the pleadings of the parties, following issues have been framed by the Ld. Predecessor vide order dated 07.03.2018 for adjudication :

1. Whether the present suit is barred by the provision of order II Rule 2 CPC in view of the earlier suit filed by the plaintiff for permanent injunction?OPD 1.

2. Whether the suit property bearing No.6A measuring 2.47 sq yds out of Khasra No.18/21 situated in the area of Village Hastsal Colony known as Central Market Block, B1, Vikas Nagar, Uttam Nagar, New Delhi, has been merged by the defendant with property No.7A of the defendant? OPP

3. Whether the plaintiff is entitled to the decree of possession qua the suit property as prayed for?OPP.

4. Whether the plaintiff is entitled to a decree for permanent and mandatory injunction as prayed for? OPP CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 9 of 74

5. Relief.

6. In order to prove her case, the plaintiff has examined herself as PW1 and 13 other witnesses. She filed her evidence by way of affidavit in which the averments made in the plaint have been reiterated. She has relied upon and exhibited the following documents: Ex. PW1/1 : Original site plan Ex. PW1/2 : Registered relinquishment deed Ex. PW1/3 : Indemnity bond dated 23.03.2015 Ex. PW1/4 : GPA dated 23.03.2015 Ex. PW1/5 : Agreement to sell dated 23.03.2015 Ex. PW1/6 : Affidavit dated 23.03.2015 Ex. PW1/7 : Receipt dated 23.03.2015 Ex. PW1/8 : Will dated 23.03.2015 Mark A : Photocopy of site plan Mark B : Photocopy of GPA, Agreement to Sell to and receipt executed by Pandit Ram Mark E Chander in favour of Sh. Jawahar Lal Mark F : Photocopies of GPA, registered Will, to agreement to sell, receipt and Mark J1 possession letter, all dated 20.06.2003 executed by Sh. Jawahar Lal in favour of Sh. Ram Lal Popli Mark K : Photocopy of death certificate dated 29.06.2008 of Ram Lal Popli CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 10 of 74 Mark L : Copy of complaint dated 25.09.2016

7. PW2 is Ct. Satpal from PS Ranhola, Delhi who brought the summoned record i.e. original complaint dated 25.09.2016 made by plaintiff and exhibited the same as Ex.PW2/1.

8. The other witnesses examined by the plaintiff are PW3 (Sh. Rajender Sharma), PW4 (Sh. Pawan Tyagi), PW5 (Sh. Narender), PW6 (Sh. Bhupinder Singh), PW7 (Smt. Rama Popli), PW8 (Sh. Jaswant Popli), PW11 (Shishu Kumar Sachdeva), PW12 (Sh. Subhash Sharma) and PW13 (Sh. Bal Kishan Tyagi) who filed their evidence by way of affidavits and their testimonies shall be discussed in the later part of the judgment.

9. PW9 is Sh. Santosh Kumar, Sr. Assistant UD department, Govt of NCT of Delhi, Delhi Secretariat who brought the summoned record i.e. layout plan of the colony known as Vikas Nagar, Vikas Vihar (east), B Block, Uttam Nagar, New Delhi as Ex. PW9/1.

CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 11 of 74

10. PW10 (Sh. Vivek Yadav), Jr. Assistant from the office of Sub Registrar II Basai, Darapur brought the following summoned record : Ex. PW10/1 : Certified copy of registered GPA executed by Sh. Jawahar Lal in favour of Sh. Ram Lal Popli Ex. PW10/2 : Certified copy of registered Will executed by Sh. Jawahar Lal in favour of Sh. Ram Lal Popli Ex. PW10/3 : Certified copy of registered relinquishment deed executed by Sh. Vinod Popli, Sunil Popli.

                                            Jaswant Popli, Satish Popli and
                                            Ms. Sangeeta in favour of Smt.
                                            Rama Popli
                      Ex. PW10/4          : Certified copy of registered GPA
                                            executed by Sh. Jawahar Lal in
                                            favour of Smt. Vandana Sharma
                      Ex. PW10/5          : Certified copy of registered Will
                                            executed by Sh. Jawahar Lal in
                                            favour of Smt. Vandana Sharma
                      Ex. PW10/6          : Certified copy of registered GPA
                                            executed by Sh. Jawahar Lal in
                                            favour of Sh. Nand Kishore Tyagi
                      Ex. PW10/7          : Certified copy of registered Will
                                            executed by Sh. Jawahar Lal in
                                            favour of Sh. Nand Kishore Tyagi

11. On the other hand, the defendants examined only defendant CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 12 of 74 no. 1 as DW1 and she filed her evidence by way of affidavit Ex.DW1/A in consonance of averments made in the written statement and during her deposition as DW1, defendant no. 1 has relied upon and exhibited the following documents: Ex.DW1/1 : Sale deed dated 26.10.2004 Ex.DW1/2 : Certified copy of site plan Ex.DW1/3 : Certified copy of order dated (Colly) 07.09.2013 passed by Sh. Ajay Kumar Malik, Ld. Civil Judge, Tis Hazari Courts, Delhi Ex.DW1/4 : Certified copy of order dated (Colly) 30.06.2015 passed by Sh. Sameer Bajpai, Ld, JSCC cum ASCJ (West), Delhi Ex.DW1/5 : Certified copy of order dated (Colly) 05.09.2016 passed by Sh. Chander Mohan, Ld, Civil Judge, Ex.DW1/6 : Certified copy of crossexamination of (Colly) Sh. Umesh Tyagi dated 12.08.2013 Ex.DW1/7 : Certified copy of order dated (Colly) 16.09.2017 [passed by Sh. Dhiraj Mor, Ld. ASJ, Dwarka

12. I have heard the Ld. Counsel Sh. Manmohan Gupta for the plaintiff and Sh. B.K. Bharti, Ld. Counsel for the defendants. I have also gone through the written arguments filed by the parties and perused the CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 13 of 74 record carefully.

13. On the basis of material available on record, my issuewise findings are as under: Issue No. (1) (Whether the present suit is barred by the provision of order II Rule 2 CPC in view of the earlier suit filed by the plaintiff for permanent injunction?)

14. The onus to prove this issue is on the defendants. The defendants in the written statement have taken a plea that the suit is barred by provisions of Order 2 Rule 2 CPC since the plaintiff previously had filed a suit for permanent injunction which was rejected by the Ld. ACJ, South West on an application moved by the defendants under order 7 Rule 11 CPC. The Ld. Counsel for the defendants has vehemently argued that the previous suit filed by the plaintiff for permanent injunction was in respect of same property for which the present suit has been filed and between the same parties and since the relief sought by way of present suit was not sought in the said suit, the present suit is completely barred under Order 2 Rule 2 CPC.

15. Per contra, Ld. Counsel for the plaintiff contended that the CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 14 of 74 defendants have not filed the pleadings of the previous suit and also did not prove the same in accordance with law and in the absence thereof, the Court cannot compare the cause of action which was pleaded in the previous suit and the cause of action on the basis of which the present suit has been filed. He further vehemently contended that cause of action in both the suits is entirely different as cause of action in a suit for injunction is distinct from the cause of action in suit for possession and unless there is identity between the cause of action on which the earlier suit was filed and that on which the plaint in the later suit is based there would be no scope for the application of the provisions of Order 2 Rule 2 CPC. He has placed reliance upon judgments (1) Ashoka Builders & Promoters & Anr. vs. Edward Keventer (Successors) P. Ltd. & Ors., 51 (1993) DLT 421, (2) Kunjan Nair Sivaraman Nair vs Narayanan Nair & Ors., Appeal (Civil) 838 of 2004 decided on 06.02.2004, (3) Jayantilal Chimanlal Patel vs. Vadilal Purushottamdas Patel, Civil Appeal Nos. 30563057 of 2017 arising out of SLP © Nos. 28705 28076 of 2014 and (4) Gurbux Singh vs. Bhooralal ,1964 (7) SCR 831 CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 15 of 74

16. In rebuttal, the Ld. Counsel for defendants contended that the plaintiff cannot take the advantage of not filing the pleadings of the previous suit by the defendants and it was for the plaintiff to approach the court with clean hands by filing the previous plaint of the suit for permanent injunction for comparison by the Court regarding cause of action of both the suits. He submitted that the plaintiff had instituted both, earlier suit and present suit, and now cannot argue that in the absence of the pleadings of the previous suit, the bar imposed under Order 2 Rule 2 CPC will not be attracted. In support of his submissions, Ld. Counsel for the defendants heavily relied upon the judgment of Hon'ble Delhi High Court in Beena @ Veena Bhardwaj vs. Sushma Sharma & Ors. reported in, 2018 (3) CLJ 70 Del.

17. In the said judgment relied upon by the Ld. Counsel for defendants, the Hon'ble High Court has held that, "The plaintiff had an obligation to file the plaint of the earlier suit in the subject suit and having not done so, she cannot take advantage of her own wrong. The plaintiff could have also filed a copy of the earlier plaint in response to the application u/o 7 rule 11 CPC. The plaintiff having instituted both CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 16 of 74 the earlier suit and the present suit cannot be seen to argue that the copy of her own earlier plaint ought to have been filed, for entertaining the defendant's objection u/o 2 rule 2 of the CPC. That would result in the Court taking an over technical approach. The earlier plaint is well within the knowledge of all parties as also the Court as the reliefs claimed therein form part of the impugned order".

18. However, the Hon'ble Supreme Court in case titled Gurbax Singh vs. Bhuralal, 1964 (7) SCR 831 held while considering the issue of order 2 Rule 2 that, "6. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on the basis of inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2 rule 2 of Civil Procedure code can be established only if the defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the identity of the cause of action in the two suits. It is common ground that the pleadings in CS 28 of 1950 were not filed by the appellant in the present suit as evidence in support of his plea under order 2 Rule 2 of the Civil Procedure Code. The Ld. Trial Judge, however, without these pleadings being on record inferred what CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 17 of 74 the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the stage of appeal, Ld. District Judge noticed this lacuna in the appellant's case and pointed out, in our opinion, rightly that without the plaint in the previous suit being on record, a plea of a bar under Order 2 Rule 2 of the Civil Procedure Code was not maintainable".

19. 7. ....... This apart; we considered that Ld. Counsel's argument must be rejected for a more basic reason. Just as in the case of a plea of res judicata which cannot be established in the absence on the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under Order 2 Rule 2 of the Civil Procedure Code cannot be made out except on the proof of the plaint in the previous suit the filing of which is said to create the bar. As the plea is basically founded on the identity of cause of action in the two suits the defence which raises the bar has necessarily to establish the cause of action in the previous suit. The cause of action would be the fact which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court, the plaint in which those facts were CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 18 of 74 alleged, the defendant cannot invite the court to speculate or infer by a process of deduction but those facts might be with reference to the reliefs which were then claimed.

20. This judgment was relied upon by the Hon'ble Supreme Court in Kunjan Nair Sivaraman Nair vs Narayanan Nair & Ors., (cited supra) and again in Jayantilal Chimanlal Patel vs. Vadilal Purushottamdas Patel (cited supra). The Hon'ble Apex Court in Jayantilal Case while making reference to the Gurbux case observed that, "From the aforesaid statement of law it is clearly discernible that filing of the plaint of earlier suit and proving it as per law is imperative to sustain the plea of order 2 rule 2 CPC. Unless that is done, the stand would not be entertainable. It was further held that it is mandatory that to sustain a plea under order 2 rule 2 of the civil procedure, the defendant is obliged under law to prove the plaint and the proof has to be as per the law of evidence."

21. Admittedly in the present case, the defendants have neither filed the pleadings of the previous suit for permanent injunction instituted by the plaintiff against them nor proved the same in evidence CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 19 of 74 as per law. Although the defendants have filed the certified copy of the order dated 16.09.2017 passed by Ld. ACJ South West by which the plaint of the suit for permanent injunction was rejected. Therefore, in view of the aforesaid judgments of the Hon'ble Supreme Court, plea of the defendants that suit is barred under Order 2 Rule 2 CPC is liable to be rejected.

22. Apart from this, a perusal of the certified copy of order dated 16.09.2017 in the suit for permanent injunction would reveal that the Ld. ACJ South West, Dwarka has rejected the plaint under Order 7 Rule 11 (d) CPC by observing that the suit of permanent injunction sans relief of possession is not maintainable and same was apparently barred by law. Order 7 Rule 13 of the CPC provides that the rejection of the plaint on any of the grounds herein before mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action. Therefore, since the plaint of the suit for permanent injunction was rejected under Order 7 rule 11 (d) of CPC and by virtue of order 7 rule 13 CPC, the rejection of the plaint would not preclude the plaintiff from presenting a fresh plaint in respect of the CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 20 of 74 same cause of action and therefore by virtue of order 7 rule 13 CPC, the present suit by which the plaintiff is seeking the relief of possession of the suit property cannot be said to be barred u/o 2 rule 2 CPC and the same is very much maintainable.

23. In view of aforesaid discussions and the case laws cited supra, the present suit cannot be said to be barred under Order 2 Rule 2 CPC as contended by the defendants. Hence, this issue is decided against the defendants.

Issue No. (2) (Whether the suit property bearing No.6A measuring 2.47 sq. yds. (there is a typographical error as it should have been 28.47 sq. yards) out of Khasra No.18/21 situated in the area of Village Hastsal Colony known as Central Market Block, B1, Vikas Nagar, Uttam Nagar, New Delhi, has been merged by the defendant with property No.7A of the defendant?)

24. The onus to prove this issue is on the plaintiff. The plaintiff has claimed herself to be absolute and sole owner of the suit property i.e. plot No. 6A, measuring 28.47 sq. yards out of Khasra No. 18/21, situated in the area of Village Hastsal, Colony known as Central Market, Block CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 21 of 74 B1, Vikas Nagar, Uttam Nagar, New Delhi - 59 by virtue of title documents dated 23.03.2015. The plaintiff has asserted in the plaint that suit property is a part of land measuring one bigha which was owned and possessed by one Pt. Ram Chander who sold the said land measuring one bigha to Sh. Jawahar Lal. Sh. Jawahar Lal carved out small plots in the one bigha land and gave them private numbers and sold the plots to different persons and in this process he sold the suit property i.e plot No. 6A to Sh. Ram Lal Popli. After the death of Sh. Ram Lal Popli, his wife Smt. Rama Popli acquired the ownership rights over the suit property as other legal heirs (i.e. 4 sons and 1 daughter of Sh. Ram Lal Popli) had relinquished their respective share in the suit property in favour of their mother Smt. Rama Popli who subsequently sold the suit property to the plaintiff vide sale documents dated 23.03.2015. As such, the plaintiff has described the previous chain of ownership and has explained as to how she acquired ownership rights over the suit property from its previous owner Smt. Rama Popli. It is case of the plaintiff that the defendants who claimed ownership of defendant no. 1 over the plot No. 6 and 7A in aforesaid Khasra, took forcible possession of the suit CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 22 of 74 property on 25.09.2016 and started raising construction over the same by merging the suit property with adjoining plot No. 7A. The plaintiff has claimed that the defendants in a very planned manner have impersonated the suit property as plot No. 6 in order to grab the suit property i.e. plot No. 6A owned by her under the garb of property No. 6 which in fact is situated at the rear/back side of the suit property.

25. The defendants in their written statement have denied the ownership of the plaintiff over the suit property and claimed that the plaintiff has forged and fabricated the documents showing the suit property as plot No. 6A, whereas the real number of the suit property is plot No. 6 & 7A measuring 46 sq. yards and the same is owned and possessed by defendant no. 1 having purchased the same from Pt. Ram Chander vide registered Sale Deed dated 26.10.2004. The defendants have also denied the case of the plaintiff describing previous chain of ownership for want of knowledge. The defendants have also claimed that the suit is also barred as the plaintiff should have instituted the suit within 6 months of alleged dispossession on 25.09.2016, besides the contention that the suit is barred under Order 2 Rule 2 CPC as the CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 23 of 74 plaintiff had earlier instituted a suit for permanent injunction which was rejected by the Ld. ACJ, South West, Dwarka.

26. From the aforesaid pleadings of the parties, points for determination which arises can be divided under the following sub heads:  Whether Pandit Ram Chander who was the owner of the land measuring 1 bigha sold the same to Sh. Jawahar Lal vide sale documents dated 07.04.1998 ?

 Whether Sh. Jawahar Lal divided the land into several pieces and numbered them privately and sold them to different persons ?

 Whether Sh. Jawahar Lal sold the plot No. 6A to Sh. Ram Lal Popli vide sale documents dated 20.03.2003 ?

 Whether plaintiff is the owner of the suit plot having purchased the same from Smt. Rama Popli vide documents dated 23.03.2015 ?

 Whether the suit property bears plot No. 6A and the same has been illegally merged by the defendants CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 24 of 74

27. The first point for determination is : Whether Pt. Ram Chander has sold the land of one bigha to Sh. Jawahar Lal ?

28. It is not in dispute that Pt. Ram Chander was owner and in possession of land measuring one bigha in Khasra No. 18/21, Village Hastsal, Delhi of which suit property is a part. As per claim of the plaintiff, Pt. Ram Chander sold the said land measuring one bigha to Sh. Jawahar Lal vide sale documents dated 07.04.1998. The defendants in their written statement have denied the said fact for want of knowledge. DW1 (defendant no. 1) during her crossexamination also stated that she does not know whether Sh. Ram Chander had sold the land measuring 1 bigha comprising in Khasra No. 18/21 to Jawahar Lal in 1998 and also handed over the possession of the same to late Sh. Jawahar Lal.

29. In order to prove that Pt. Ram Chander had sold one bigha land to Sh. Jawahar Lal, the plaintiff while appearing in the witness box as PW1 has reiterated the said assertion in her examinationin chief and also exhibited the documents dated 07.04.1998 viz. photocopy of GPA, Affidavit, Agreement to Sell and Receipt as Mark B to Mark E executed CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 25 of 74 by Pt. Ram Chander in favour of Sh. Jawahar Lal. During her cross examination, PW1 (the plaintiff) stated that the documents Mark B i.e. GPA executed by Sh. Ram Chander in favour of Sh. Jawahar Lal and Mark D i.e. Agreement to sell executed by Sh. Ram Chander in favour of Sh. Jawahar Lal do not bear the signature of the Second Party i.e. Mr. Jawahar Lal.

30. Except the admission of PW1(the plaintiff) regarding absence of signatures of Sh. Jawahar Lal on GPA Mark B and Agreement to sell Mark D, Ld. Counsel for defendants could not succeed in impeaching the version of the plaintiff regarding execution of these documents.

31. The plaintiff in order to prove sale of one bigha land by Pt. Ram Chander to Sh. Jawahar Lal has also examined Sh. Rajinder Sharma as PW3, who is one of the marginal witnesses to the sale documents dated 07.04.1998. In his affidavit towards examinationin chief Ex.PW3/A, PW3 (Sh. Rajinder Sharma) has deposed that he has seen the photocopies of GPA, Affidavit, Agreement to sell & Receipt executed by Sh. Ram Chander in favour of Sh. Jawahar Lal, original of CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 26 of 74 which were signed by Sh. Ram Chander in his presence and he has identified signatures of Sh. Ram Chander on these documents. He has further deposed that at that time besides him, Sh. Jawahar Lal and Sh. Pawan Tyagi were also present. He further deposed that he himself and Sh. Pawan Tyagi have signed the original GPA, original Agreement to sell and original Receipt as marginal witnesses. He further deposed that Sh. Ram Chander had sold his land measuring 1 bigha in Village Hastsal, Delhi to Sh. Jawahar Lal for a sum of Rs. 4 lacs and handed over its possession to Sh. Jawahar Lal. In his crossexamination, PW3 (Sh. Rajinder Sharma) categorically stated that the documents mentioned in his affidavit Ex.PW3/A were executed by Sh. Ram Chander in favour of Sh. Jawahar Lal in the year 1998. He further stated that he has signed the said documents at the instance of Sh. Jawahar Lal as he knows him. He voluntarily stated that he also knows Sh. Ram Chander. He has identified his signature on the photocopy of Agreement to sell dated 07.04.1998 at point X1, which was exhibited as Ex.PW3/D1. He stated that he has signed on the said Agreement to sell after seller and buyer and other witnesses have signed on the same. The witness was shown CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 27 of 74 Agreement to sell Ex.PW3/D1 and was asked a question whether the same bears the signature of Sh. Jawahar Lal and the witness answered in negative.

32. The plaintiff has also examined another attesting witness to the sale documents dated 07.04.1998 executed by Sh. Ram Chander in favour of Sh. Jawahar Lal, namely, Sh. Pawan Tyagi as PW4 who deposed in his examinationinchief on the similar lines as deposed by PW3(Sh. Rajinder Sharma) in his affidavit in evidence. In his cross examination, PW4 (Sh. Pawan Tyagi) stated that he is aware about the contents of his affidavit Ex.PW4/A and that the documents mentioned in his affidavit i.e GPA, Agreement to sell, Receipt etc. were executed by Sh. Ram Chander in favour of Sh. Jawahar Lal in the year 1998. He further stated that he has signed the said documents as a witness at the instance of both the parties and that he had signed the documents after the signature put by Sh. Ram Chander and another witness, namely, Sh. Rajinder but Sh. Jawahar Lal had not signed the said documents in his presence. He further stated that these documents were got notarized in his presence at Dholi Pieu before the office of Notary Public but he does CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 28 of 74 not recollect the name of the Notary Public. He also stated that at the time of execution of above mentioned documents, he was aged about 19 years.

33. From the aforesaid crossexamination of PW3 (Sh. Rajinder Sharma) and PW4 (Sh. Pawan Tyagi), it is apparent that again nothing material could be extracted by Ld. Counsel for defendants to disbelieve their version regarding execution of documents dated 07.04.1998 by which one bigha land was sold by Sh. Ram Chander to Sh. Jawahar Lal except the fact that Agreement to sell does not bear the signature of vendee i.e. Sh. Jawahar Lal.

34. PW11 (Sh. Shishu Kumar Sachdev), who is son of late Sh. Jawahar Lal has also deposed in his examinationinchief that his father late Sh. Jawahar Lal was owner and in possession of land measuring 1 bigha comprised in Khasra No. 18/21, Village Hastsal, Delhi which he had purchased from its previous owner Pt. Ram Chander about 20 years back. He further deposed that he had seen the original documents such as GPA, Affidavit, Agreement for Sell and Receipt executed by Sh. Ram Chander in favour of his father. In his crossexamination, PW11 (Sh. CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 29 of 74 Shishu Kumar Sachdev) categorically stated that his father has purchased one bigha comprises Khasra No. 18/21, Village Hastsal Delhi in 1998 but he cannot tell right now the exact date and month of the purchase of the said property. An affirmative suggestion was put to this witness by the Ld. Counsel for defendants that the abovementioned property was purchased by his father from one Pandit Ram Chander which he admitted. It shows that even the defendants do not dispute the sale of land measuring one bigha by Pt. Ram Chander to Sh. Jawahar Lal. The witness was shown the documents Mark B i.e. GPA and Mark D i.e. Agreement to Sell executed by Sh. Ram Chander in favour of late Sh. Jawahar Lal and after seeing the same, the witness admitted that there is no signature of his father on the said documents.

35. Ld. Counsel for defendants has vehemently argued that Agreement to sell dated 07.04.1998 Mark D has not been signed by the vendee i.e Sh. Jawahar Lal as admitted by the aforesaid witnesses in their crossexamination and thus the same being a unilateral agreement only signed by Pt. Ram Chander as vendor will not transfer any right, title or interest in favour of Sh. Jawahar Lal over the land measuring one CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 30 of 74 bigha. I do not find any merit in this argument of Ld. Counsel for defendants. Of course, Agreement to sell dated 07.04.1998 executed between Pt. Ram Chander and Sh. Jawahar Lal in respect of land measuring one bigha does not bear the signature of vendee Sh. Jawahar Lal. However, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. It has been held by the Hon'ble Supreme Court in case titled "Alka Bose vs.Parmatma Devi & Ors. (Civil Appeal No. 6197 of 2000 decided on 17.12.2008)"

that, "In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser has always been considered to be a valid contract".

36. The plaintiff by examining the marginal witnesses to the Agreement to sell Mark D, namely, PW3 (Sh. Rajinder Singh) and PW 4 (Sh. Pawan Tyagi) have duly proved that Agreement to sell was duly entered into between Pt. Ram Chander and Sh. Jawahar Lal by which Pt. Ram Chander had agreed to sell his land measuring one bigha to Sh. Jawahar Lal for a sum of Rs. 4,00,000/ and pursuant to the same, the sale was effected and possession of the said land was also handed CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 31 of 74 over to Sh. Jawahar Lal by Pt. Ram Chander.

37. Thus, the plaintiff has successfully proved the factum of sale of one bigha land by Pt. Ram Chander to Sh. Jawahar Lal vide sale documents dated 07.04.1998 Mark A to Mark E, which fact the defendants also did not dispute as evident from the affirmative suggestion put to PW11 (Sh. Shishu Kumar Sachdev).

38. Now, second point which falls for determination is:

Whether Sh. Jawahar Lal after purchasing the land measuring one bigha from Pt. Ram Chander had carved out small plots in the said land measuring one bigha and gave them private numbers and sold them to different persons?

39. The plaintiff has claimed that Sh. Jawahar Lal divided his land into several small pieces and numbered them privately from 1 to 50 in such a way that plots falling towards western side were given numbers from 1 to 20 while rear portion of the said plots were numbered as 1A to 20A. Meaning thereby, plot No. 7A is situated behind the plot No. 7 and similarly plot No. 6A is situated just behind the plot No. 6.

40. The plaintiff in her examinationinchief has reiterated the CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 32 of 74 aforesaid assertions made in the plaint. In her crossexamination, the Ld. Counsel for defendants did not put a single question or suggestion on the said assertions made by the plaintiff. The testimony of the plaintiff regarding dividing of land into small pieces of plots by Sh. Jawahar Lal and giving them private numbers or regarding the special arrangement made by Sh. Jawahar Lal while giving numbers to different plots in such a way that the plots falling towards western side were numbered as 1 to 20 and the rear portion of the said plots were numbered as 1A to 20A has gone unrebutted and uncontroverted.

41. In this regard, PW4 (Sh. Pawan Tyagi) who is one of the marginal witnesses to the sale documents dated 07.04.1998 executed by Pt. Ram Chander in favour of Sh. Jawahar Lal has deposed in his examinationinchief that plot nos. 6A to 20A are adjacent to each other and are in a row and the plot nos. 6 to 20 are adjacent to each other and are also in a row. In his crossexamination, PW4 (Sh. Pawan Tyagi) stated that he has seen the property measuring about 1 Bigha sold by Pt. Ram Chander to Sh. Jawahar Lal and at that time, the land was not divided into plots and the said land was divided by Sh. Jawahar Lal later CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 33 of 74 on. He further stated that after 23 months of the purchase of the aforesaid land, plots numbers were given by Sh. Jawahar Lal. He was suggested that Sh. Jawahar Lal had divided the plots later on which he denied. This suggestion put to the witness shows that even the defendants do not dispute the factum of division of land by Sh. Jawahar Lal into small plots and defendants had only disputed the time when the said land was divided into small plots by Sh. Jawahar Lal. However, from the crossexamination of PW4 (Sh. Pawan Tyagi), it is evident that the defendants could not impeach his version that after 23 months of the purchase of land measuring one bigha, small plots were carved out by Sh. Jawahar Lal out of the said land and he also gave them private numbers in such a way that plot nos. 1 to 20 are situated in a row and adjacent to each other and similarly plot nos. 1A to 20A are adjacent to each other in a row.

42. PW11 (Sh. Shishu Kumar Sachdev), the son of late Sh. Jawahar Lal has also deposed in his evidence that after purchase, his father divided the land into several plots and numbered them privately. In his crossexamination, he categorically stated that his father had sold CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 34 of 74 the abovementioned property by carving out plots in the said colony. No further suggestion was put to the witness to rebut his deposition made in his examinationinchief regarding giving private numbers to the plots by Sh. Jawahar Lal after dividing his land into small plots and selling them in the colony and this part of his testimony has gone unrebutted.

43. The plaintiff in order to prove that late Sh. Jawahar Lal had sold the neighbouring plots bearing No. 26 and plots No. 21, 27, 28, 29, 3 & 31 to two different persons, namely Smt. Vandana Sharma and Sh. Nand Kishore Tyagi has examined PW12 (Sh. Subhash Sharma) and PW13 (Sh. Bal Kishan Tyagi).

44. PW12 (Sh. Subhash Sharma) deposed in his examination inchief that his wife Smt. Vandana Sharma is the owner of plot No. B 26, measuring 83 sq. yards out of Khasra No. 18/21, Village Hastsal, abadi known as Central Market, Vikas Nagar in Block B, Vikas Nagar, Uttam Nagar, New Delhi having purchased the same from Sh. Jawahar Lal vide registered GPA, Registered Will, Notarized Agreement to Sell, Notarized Affidavit, Notraized Receipt & Possession letter, all dated CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 35 of 74 15.07.2003 Mark PW12/1 (Colly). He further deposed that Sh. Jawahar Lal signed all these documents in his presence and he had also signed all these documents except the affidavit. He has also identified the signatures of Sh. Jawahar Lal on these documents at points C1 to C12. In his crossexamination, this witness categorically stated that the property mentioned in para no. 1 of his affidavit Ex.PW12/A was sold by late Sh. Jawahar Lal to his wife Smt. Vandana Shamra. He admitted that all the above mentioned documents Ex.PW12/1 (Colly) do not bear the signature of his wife.

45. PW13 (Sh. Bal Kishan Tyagi) deposed in his affidavit in evidence that Sh. Nand Kishore Tyagi is the owner of Plot No. 21,27,28,29,30 & 31 out of Khasra No. 18/21, Village Hastsal, abadi known as Central Market, Vikas Nagar in Block B, Vikas Nagar, Uttam Nagar, New Delhi having purchased the same from Sh. Jawahar Lal vide registered GPA, Registered Will, Notarized Agreement to Sell, Notarized Affidavit, Notraized Receipt & Possession letter, all dated 06.11.2002 Ex.PW13/1 (Colly), which bear the signature of late Sh. Jawahar Lal at points D1 to D13. He also deposed that he had also CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 36 of 74 signed these documents at point X1 to X7. During his cross examination, this witness categorically stated that the various plots mentioned in para 1 of his affeaivt Ex.PW13/A was sold by late Sh. Jawahar Lal to his uncle namely Sh. Nand Kishore Tyagi. He admitted that all the abovementioned documents Ex. PW13/1 (Colly) do not bear the signature of his uncle Sh. Nand Kishore Tyagi.

46. The aforesaid crossexamination of both the witnesses PW 12 (Sh. Subhash Sharma) and PW13 (Sh. Bal Kishan Tyagi) would reveal that their version in their examinationinchief regarding sale of plot No. 26 to Smt. Vandana Sharma and plots no. 21, 27, 28, 29, 30 & 31 to Sh. Nand Kishore Tyagi could not be impeached. Though both the witnesses admitted that documents MarkPW12/1 (Colly) and Ex.PW13/1 (Colly) do not bear the signature of the vendee i.e. Smt. Vandana Sharma in documents Mark 12/1 (Colly) and Sh. Nand Kishore Tyagi in documents Ex.PW13/1 (Colly), but as noted herein above, this admission of the witnesses does not render the documents Mark PW12/1 (Colly) and Ex.PW13/1 (Colly) invalid in view of the judgment of the Hon'ble Apex Court in Alka Bose case (cited supra). CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 37 of 74

47. Further, it is to be noted that GPA and Will which are part of the documents Mark PW12/1 (Colly) executed by late Sh. Jawahar Lal in favour of Smt. Vandana are duly registered with the Sub Registrar. Similarly, GPA and Will forming part of the documents Ex. PW13/1 (Colly) executed by late Sh. Jawahar Lal in favour of Sh. Nand Kishore Tyagi are duly registered documents. PW10 (Sh. Vivek Yadav, Junior Assistant from the Office of SubRegistrarII, Basai Darapur, Delhi) has duly proved registration of these documents and placed on record the certified copy of registered GPA and registered Will executed by late Sh. Jawahar Lal in favour of Smt. Vandana as Ex.PW10/4 and Ex.PW10/5 respectively and has also placed on record the certified copy of registered GPA and registered Will executed by late Sh. Jawahar Lal in favour of Sh. Nand Kishore Tyagi as Ex.PW10/6 and Ex.PW10/7 respectively.

48. PW14 (Sh. Mithlesh Kumar from the office of Sub RegistrarII, Basai Darapur, New Delhi) has also produced originals of these documents Ex.PW10/4 to Ex.PW10/7 and after comparing the originals with the certified copies found the documents Ex.PW10/4 to CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 38 of 74 Ex.PW10/7 to be correct and genuine documents.

49. In view of aforesaid evidence produced on record, the plaintiff has successfully proved that late Sh. Jawahar Lal after purchasing one bigha land from Pt. Ram Chander divided the said land into small plots and gave them private numbers in such a way that the plots falling towards western side were numbered as 1 to 20 and the plots behind the said plots were numbered as 1A to 20A. The plaintiff has also been able to prove through the testimony of PW12 and PW13 that Sh. Jawahar Lal sold the various plots carved out from the one bigha land to different persons.

50. Next point for determination is: Whether late Sh. Jawahar Lal has sold the plot No. 6A (suit property as per the plaintiff) to Sh. Ram Lal Popli ?

51. In this regard, plaintiff as PW1 has deposed in her examinationinchief that in the process of selling plots to different persons, late Sh. Jawahar Lal sold the plot No. 6A to Sh. Ram Lal Popli at a sale consideration of Rs.45,000/ on 20.06.2003 vide documents viz. registered GPA, registered Will, Agreement to sell, Receipt and CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 39 of 74 Possession letter Mark F to Mark J respectively. She also deposed that Sh. Jawahar Lal also handed over vacant and peaceful possession of Plot No. 6A to Sh. Ram Lal Popli. In crossexamination, PW1 (the plaintiff) was put questions regarding absence of signature of vendee i.e. Sh. Ram Lal Popli on these documents and she stated that documents Mark F i.e. GPA executed by Jawahar Lal and Mark H i.e Agreement to Sell executed by Jawahar Lal in favour of Sh. Ram Lal Popli do not bear the signatures of the second Party i.e. Sh. Ram Lal Popli as well as witnesses. She further stated that the document Mark J i.e Receipt issued by Jawahar Lal also does not bear the signature of any witness and that the document Mark J1 i.e. possession letter executed between Jawahar Lal and Ram Lal Popli does not bear the signature of second party at the point of the possession taken over and this document also does not bear signatures of any witness.

52. By putting above questions to PW1 (the Plaintiff), the Ld. Counsel for defendants has tried to make out a case that in the absence of signatures of the vendee and witnesses on the documents relied upon by the plaintiff to show sale of suit land by Sh. Jawahar Lal to Sh. Ram CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 40 of 74 Lal Popli are not valid documents. However as noted herein above, even if an agreement for sale is not signed by Vendee, the same will not affect its genuineness and authenticity as observed by the Hon'ble Apex Court in case titled Alka Bose vs.Parmatma Devi & Ors. (cited supra).

53. Apart from these questions, the Ld. Counsel for defendants could not extract anything important from the crossexamination of PW 1 (the plaintiff) regarding execution of these documents and their genuineness.

54. PW11 (Sh. Shishu Kumar Sachdev), the son of late Sh. Jawahar Lal has deposed that his father Sh. Jawahar Lal sold plot No. 6 A measuring 28.47 sq. yards (12.1/2 feet x 20.1/2 feet) out of above land to Sh. Ram Lal Popli at a sale consideration of Rs. 45,000/. He has identified signatures of his father Sh. Jawahar Lal on the original GPA, Will, Agreement to Sell, Affidavit, Receipt and Possession Letter. He further deposed that his mother Smt. Kaushalya Devi had also signed the original GPA and Will as a marginal witness and the said documents were also registered in the office of the SubRegistrar, Janakpuri, New Delhi. During his crossexamination, he admitted that the documents CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 41 of 74 Mark H i.e Agreement to sell, Mark J i.e Receipt and Mark J1 i.e. Possession Letter do not bear the signature of his mother and again except this question he was not suggested that no such documents were executed by his father in favour of Sh. Ram Lal Popli.

55. The plaintiff has also duly proved the registration of GPA and Will executed by Sh. Jawahar Lal in favour of Sh. Ram Lal Popli by examining PW10 (Sh. Vivek Yadav, Junior Assistant from the Office of SubRegistrarII, Basai Darapur, Delhi) who brought the certified copy of registered GPA executed by Sh. Jawahar Lal in favour of Sh. Ram Lal Popli duly registered with the Sub Registrar on 20.06.2003 which is Ex.PW10/1. He has also placed on record the certified copy of registered Will executed by Sh. Jawahar Lal in favour of Sh. Ram Lal Popli on 20.06.2003 as Ex.PW10/2. Originals of these documents were also produced by PW14 (Sh. Mithelesh Kumar) who found the documents Ex.PW10/1 and Ex.PW10/2 correct after comparing the same with the originals produced by him.

56. As such, sale of plot No. 6A which as per the plaintiff is the suit property by Sh. Jawahar Lal to Sh. Ram Lal Popli duly stands CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 42 of 74 proved by the plaintiff.

57. Now, it is to be seen as to how the plaintiff acquired ownership right over the plot No. 6A which is the suit property as per the plaintiff.

58. The plaintiff has claimed that Sh. Ram Lal Popli who became the owner of the plot No. 6A having purchased the same from Sh. Jawahar Lal, died intestate on 29.06.2008 leaving behind his wife (Smt. Rama Popli), four sons (Vinod, Sunil, Jaswant and Satish) and one daughter (Smt. Sangeeta) as his legal heirs who became joint owners of the suit property having 1/6th share each. The plaintiff has also placed on record the photocopy of death certificate of late Sh. Ram Lal Popli as Mark K. It is further case of the plaintiff that four sons and one daughter of late Sh. Ram Lal Popli relinquished their respective 1/6 share each in the suit property in favour of their mother Smt. Rama Popli vide registered Relinquishment Deed dated 17.05.2010. Smt. Rama Popli who became absolute and exclusive owner of the suit property sold the same to plaintiff on 23.03.2015 vide GPA, Agreement to Sell, Will, Affidavit, Receipt and Indemnity bond and also handed over the CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 43 of 74 possession of the same to the plaintiff.

59. The plaintiff has reiterated the aforesaid averments made in the plaint in her examinationinchief and relied upon the Relinquishment Deed dated 17.05.2010 Ex.PW1/2 and sale documents i.e. GPA, Agreement to Sell, Will, Affidavit, Receipt and Indemnity bond, all dated 23.03.2015 Ex.PW1/3 to Ex.PW1/8 respectively. There is no crossexamination of the plaintiff at all on these assertions made by her in her examinationinchief and entire testimony of the plaintiff on these assertions has gone unrebutted and uncontroverted. She was not put a single question or suggestion on acquisition of ownership right by Smt. Rama Popli over the suit property and subsequently transfer of ownership right by Smt. Rama Popli in favour of plaintiff by executing sale documents Ex.PW1/3 to Ex.PW1/8.

60. Further, the plaintiff in order to prove the Relinquishment Deed Ex.PW1/2 has examined one of its marginal witnesses, namely, Sh. Narender as PW5 who deposed in his affidavit in evidence that Relinquishment Deed Ex.PW1/2 was executed by Vinod Popli, Sunil Popli, Jaswant Popli, Satish Popli & Smt. Sangeeta in favour of their CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 44 of 74 mother Smt. Rama Popli and all the said persons had signed the Relinquishment Deed on all the four pages in his presence and in the presence of Sh. Bhupinder Singh. He also deposed that Smt. Rama Popli had signed in Hindi and all other persons had signed in English and that 4th he and Sh. Bhupinder Singh had also signed this document on the page as marginal witnesses. He has also identified the photographs of Sarvshri, Vinod Popli, Sunil Popli, Jaswant Popli, Satish Popli & Smt. Sangeeta pasted on the first page of the Relinquishment Deed. He further deposed that all these persons and the marginal witnesses also appeared before the Sub RegistrarII, Janakpuri, Delhi and put their signatures on the endorsement on the reverse of 2nd page.

61. In his crossexamination, PW5 (Sh. Narender) stated that he knows the entire family of late Sh. Ram Lal Popli who was the husband of Smt. Rama Popli in whose favour Ex.PW1/2 i.e Relinquishment Deed was executed. He further stated that he does not have any concern about the entire properties of Sh. Ram Lal.

62. PW6 Sh. Bhupinder Singh, who is another marginal witness to Relinquishment Deed has deposed on the similar lines in his CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 45 of 74 examinationinchief as deposed by PW5 (Sh. Narender) in his affidavit in evidence. In his crossexamination, this witness stated that he knows the entire family of late Sh. Ram Lal Popli as he was his neighbour. He further stated that he has seen the ownership documents in respect of the suit property executed in favour of late Sh. Ram Lal Popli. He stated that there are 1012 papers/documents which he has seen qua the suit property.

63. The deposition of both the aforesaid marginal witnesses PW5 (Sh. Narender) and PW6 Sh. Bhupinder Singh could not be impeached by the Ld. Counsel for defendants as evident from their crossexamination. PW10 (Sh. Vivek Yadav) has brought the certified copy of registered Relinquishment Deed executed by Sh. Vinod Popli, Sh. Sunil Popli, Sh. Jaswant Popli, Sh. Satish Popli and Ms. Sangeeta in favour of Smt. Rama Popli which is Ex.PW10/3 and proved the registration of the same on 20.05.2010. PW14 (Sh. Mithilesh Kumar) brought the original Relinquishment Deed certified copy of which is Ex.PW10/3 and found the same to be correct. . The plaintiff thus has duly proved the execution of registered Relinquishment Deed Ex.PW1/2. CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 46 of 74

64. To substantiate her ownership over the plot No. 6A, the plaintiff has also examined Smt. Rama Popli as PW7 from who she has claimed to have purchased the said plot. PW7 (Smt. Rama Popli) has deposed in her affidavit in evidence that plot in dispute No. 6A measuring 28.47 sq. yards was owned and possessed by her late husband Sh. Ram Lal Popli and after the death of her husband on 29.05.2007, her sons and daughter relinquished their respective rights in respect of suit plot in her favour by means of registered Relinquishment Deed. She further deposed that she sold the suit plot to Smt. Kusum Lata Tyagi (the plaintiff) at a sale consideration of Rs. 4,50,000/ on 23.03.2015 and she executed and signed Indemnity Bond Ex.PW1/3, General Power of Attorney Ex.PW1/4, Agreement to Sell Ex.PW1/5, Affidavit Ex.PW1/6, Receipt Ex.PW1/7 and Will Ex.PW1/8 and Possession Letter Ex.PW7/1 in favour of Smt. Kusum Lata Tyagi. She further deposed that at that time her son Sh. Jaswant Popli and husband of Smt. Kusum Lata Tyagi, namely, Sh. Umesh Tyagi were also present and both of them signed as marginal witnesses on the aforesaid documents except her Affidavit.

65. In her crossexamination, PW7 (Smt. Rama Popli) stated CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 47 of 74 that she does not know the measurement of the said plot. She stated that the said plot was purchased by her husband from one Jawahar. She further stated that she does not recollect due to lapse of time as to whom she had sold the aforesaid plot. She voluntarily stated that the said plot was sold to some lady by her. She stated that she does not recollect the date, month and year of the execution of the sale documents executed by her in favour of that lady. She also does not know the nature of the said documents executed by her in favour of said lady qua the said plot. She denied the suggestion that the documents which she has seen today in court are forged and fabricated documents.

66. Though PW7 (Smt. Rama Popli) in her crossexamination could not recollect the name of the person to whom she had sold the plot No. 6A due to lapse of time but she categorically stated that she has sold the plot to some lady. Perusal of sale documents Ex.PW1/3 to Ex.PW1/8 would categorically reveal that Smt. Rama Popli sold the plot No. 6A to Smt. Kusum Lata Tyagi (the plaintiff) and also handed over the possession of the same to the plaintiff vide possession letter Ex.PW7/1. Ld. Counsel for defendants could not extract from the mouth of PW7 CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 48 of 74 (Smt. Rama Popli) that the documents Ex.PW1/3 to Ex.PW1/8 and Ex.PW7/1 have not been executed by her in favour of the plaintiff or same are forged and fabricated. Suggestion put to the witness in this regard was denied by her.

67. PW8 (Sh. Jaswant Popli), son of late Sh. Ram Lal Popli and Smt. Rama Popli deposed on the similar lines in his affidavit in evidence as deposed by his mother (PW7 Smt. Rama Popli) in her examination in chief. In his crossexamination, PW8 (Sh. Jaswant Popli) stated that he has seen once the suit property and the same was a vacant land. He further stated that his father had purchased the suit property in 2003 from late Sh. Jawahar Lal but he does not recollect the number and nature of documents executed by Sh. Jawahar Lal in favour of his father. He signed on his affidavit in evidence after going through it. He stated that the plot was measuring about 28 ½ sq. yards. He stated that he does not recollect about the nature of documents executed by his mother in favour of plaintiff. He further stated that he has gone through the said documents and thereafter he signed on the same as a witness and that besides him one Narender Kumar and Bhupinder Singh had also CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 49 of 74 signed on the said documents as witnesses. He stated that he does not recollect whether his mother had handed over the possession of the plot to the plaintiff.

68. Again from the crossexamination of this witness (PW8) who is one of the attesting witnesses to title documents Ex.PW1/3 to Ex.PW1/8, it is evident that the Ld. Counsel for defendants could not succeed to prove that no such documents were executed by Smt. Rama Popli in favour of the plaintiff.

69. From the aforesaid evidence adduced by the plaintiff, it stands proved that Sh. Ram Lal Popli who had purchased the suit property i.e. plot No. 6A from late Sh. Jawahar Lal died intestate on 29.05.2007 and he is survived by his wife, four sons and one daughter. The sons and daughter of late Sh. Ram Lal Popli vide Relinquishment Deed Ex.PW1/2 relinquished their respective share in favour of their mother Smt. Rama Popli. As such, Smt. Rama Popli became the absolute and exclusive owner of the suit property who subsequently sold the same to the plaintiff on 23.03.2015 vide sale documents Ex.PW1/3 to Ex.PW1/8 and also handed over the possession of the same to the CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 50 of 74 plaintiff vide possession letter Ex.PW7/1.

70. It has been contended by the defendants that the title/sale documents relied upon by the plaintiff dated 23.03.2015 Ex.PW1/3 to Ex.PW1/8 are forged and fabricated. However, the defendants have miserably failed to show that how and in what manner the said documents have been forged and fabricated by the plaintiff. Rather, from the aforesaid evidence adduced by the plaintiff, she has been able to prove the execution of said documents by examining the executant of these documents i.e. PW7 (Smt. Rama Popli) and one of its marginal witnesses i.e. PW8 (Sh. Jaswant Popli) whose testimonies regarding due execution of these documents could not be shattered by the defendants as noted herein above. This argument of the defendants is, therefore, rejected.

71. Ld. Counsel for defendants has also strenuously argued that these documents Ex.PW1/3 to Ex.PW1/8 on the basis of which the plaintiff is claiming ownership over the suit property do not confer any right, title or interest over the plot No. 6A in favour of the plaintiff. He contended that these documents are not registered and unstamped CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 51 of 74 documents and on the basis of said documents title of the immovable property cannot be transferred within the provision of Transfer of Property Act and therefore cannot be said to be valid title documents. He has relied upon in this regard the judgment of the Hon'ble Supreme Court in Suraj Lamp & Industries (P) Ltd. vs. State of Haryana reported in 2012 (1) SCC 656.

72. The Hon'ble Supreme Court in its judgment in Suraj Lamp & Industries (P) Ltd. vs. State of Haryana (cited supra) has declared the sale of an immovable property by virtue of GPA, Agreement to Sell, Affidavit, Will etc. as invalid sale transaction and held that an immovable property can be transferred/conveyed only by deed of conveyance/sale deed duly stamped and registered as required by law. The relevant paras of the said judgment are required to be gone through and the same are reproduced herein under: "12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of Transfer of Property Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53A of Transfer of Property Act). According to Transfer of Property Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of Transfer of CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 52 of 74 Property Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter. Scope of Power of Attorney

13. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of any agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section1A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee."

Scope of Will

14. A will is the testament of the testator. It is posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter vivo. The two essential characteristics of a will are that it is intended to come into effect only after the death of the testator and is revocable at any time during the lifetime of the testator. It is said that so long as the testator is alive, a will is not be worth the page on which it is written, as the testator can at any time revoke it. It the testator, who is not married, marries after making the will, by operation of law, the will stands revoked. Registration of a will does not make it any more effective.

Conclusion

15. Therefore, a SA/GPA/will transaction does not covey any title nor creates any interest in an immovable property...."

16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 53 of 74 conveyance. Transaction of the nature of "GPAS Sales" or "SA/GPA/will transfers" do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of Section 53A of the Transfer of Property Act...."

73. The Hon'ble High Court of Delhi in Ramesh Chand vs. Suresh Chand , 2012 (188) DLC 538 after goring through the aforesaid paras of judgment in Suraj Lamp case has observed that, "A reference to the aforesaid paras shows that unless there is a proper registered sale deed, title of an immovable property does not pass. The Supreme Court has however reiterated that rights which are created pursuant to Section 53A of the Transfer of Property Act, 1882 dealing with the doctrine of part performance (para 12), an irrevocable right of a person holding a power of attorney given for consideration coupled with interest as per Section 202 of the Contract Act, 1872 (para 13) and devolution of interest pursuant to a Will (para 14). Therefore, no doubt, a person strictly may not have complete ownership rights unless there is a duly registered sale deed, however, certain rights can exist in an immovable property pursuant to the provisions of Section 53A of the Transfer of CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 54 of 74 Property Act, 1882, Section 202 of the Contract Act, 1872. There also takes place devolution of interest after the death of the testator in terms of a Will."

74. The Honb'ble High Court observing so held that a right to possession of an immovable property arises not only from a complete ownership right in the property but having a better title or a better entitlement/right to the possession of the property than qua the person who is in actual physical possession thereof.

75. In view of aforesaid case laws, though on the basis of said documents i.e. Ex. PW1/3 to Ex.PW1/8, plaintiff cannot be classified as owner as would be an owner under a duly registered sale deed, but surely she would have better right of possession of suit property than defendants in view of Section 202 of Contract Act.

76. In my considered opinion, in the present case, the plaintiff has validly proved that the right in the suit property was transferred in her favour by means of the documents Ex.PW1/3 to Ex. PW1/8. As stated earlier, the executant and one of marginal witnesses of these documents have deposed in favour of the plaintiff and supported the CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 55 of 74 execution of the documents Ex.PW1/3 to Ex.PW1/8.

77. It has also been proved on record from the testimony of PW7 (Smt. Rama Popli) that possession of plot No. 6A was also handed over to the plaintiff pursuant to execution of sale documents Ex.PW1/3 to Ex.PW1/8 vide possession letter Ex.PW7/1. Therefore, in view of judgment in "Ramesh Chand vs. Suresh Chand", the plaintiff is entitled to claim ownership over the suit plot by virtue of Section 202 of the Contract Act, 1872 read with Section 53A of the Transfer of Property Act.

78. Now, coming to the defence of the defendants that real number of the suit property is plot No. 6 & 7A which is owned and possessed by defendant no. 1 and not plot No. 6A as claimed by the plaintiff.

79. In the written arguments, it has been submitted on behalf of the defendants that the plaintiff has failed to prove that there is a separate property bearing No. 6A out of Khasra No. 18/21. However, from the overwhelming evidence produced on record by the plaintiff as discussed herein above, she has successfully proved on record that she is CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 56 of 74 the owner of property bearing Plot No. 6A. This argument of the defendants, therefore, has no substance and falls to the ground.

80. In order to prove that suit property actually bears plot No. 6 & 7A and the same is owned by her, the defendant no. 1 herself appeared in the witness box as DW1 and deposed more or less in terms of averments made in the written statement in her affidavit in evidence. She has relied upon registered Sale Deed Ex.DW1/1 to show her ownership qua the plot No. 6 & 7A having purchased the same from Pt. Ram Chander. In her crossexamination, DW1 (defendant no. 1) categorically stated that she had purchased plot nos. 6 & 7A and that Mr. Ram Chander had told her about the number of the plot. She stated that she has not seen the site plan of the aforesaid plots. She categorically admitted that she has no right, title or interest in plot no. 6A. This statement of defendant no. 1 shows that she herself admits that property bearing Plot No. 6A is a separate and distinct property and she has no right over the same.

81. The defendants have filed the site plan Ex.DW1/2 showing their plot Nos. 6 & 7A in red colour. In her crossexamination, DW1 CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 57 of 74 (defendant no. 1) stated that she cannot tell the dimensions of the property shown in site plan Ex.DW1/2. She was shown the site plan Ex. DW1/2 and asked by the Ld. Counsel for plaintiff to identify her plots on the same. She replied that on the left side of the site plan, is plot no. 6 and on the right side of the site plan, is plot No. 7A. She stated that entry of the aforesaid two plots are from the side of the road at the East. She could not tell whether towards the East of plot no. 6 is plot no. 6A. She could not say whether towards the South of plot no. 6 & 7A are plot nos. 3, 4, 5 & 5A. She also could not say whether towards the South of plot no. 6 & 7A, plot no. 8A exists or not. She could not say whether plot no. 8A is situated towards the North of plot nos. 6 & 7A. She admitted that presently the adjacent properties of plot no. 6 & 7A are built up. She could not say whether the plot bears the numbers as 6, 7 & 8 and there is no plot bearing No. 7A in the row of 6, 7 & 8 and there is no plot nos. 8 & 9 adjacent to plot no. 7A. She stated that she does not know whether Jawahar Lal had divided one bigha land into several plots and numbered them privately from 1 to 20 in such a way that plot nos. 5 to 20 faced the western side and plot nos. 6A to 20A faced the other CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 58 of 74 side.

82. A perusal of second page of Sale Deed Ex. DW1/1 relied upon by the defendants which describes the boundaries of the sale subject in the sale deed reveals that towards the West of the property purchased by defendant no. 1 (i.e. plot No. 6 & 7A) Plot No. 6 & 7 exist. It appears that the defendant no. 1 is not in possession of plot No. 6 and she has not purchased the same, otherwise the same would not have been shown towards the West of the property purchased by the defendant no. 1. Further, a perusal of the site plan Ex.DW1/2 shows that towards South of Plots of defendant no. 1 exits Plot No. 8A. Thus, as per version of defendant no. 1, looking at site plan Ex. DW1/1 from left to right, first there is plot No. 8A, then plot No. 6 and then plot No. 7A. In other words, plot No. 8A, 6 and 7A are in a row. However it does not seem tenable and plausible that the plots have been carved out in such a haphazard manner and not serially. This is so because PW4 (Pawan Tyagi) in his examinationinchief categorically stated that plot no. 6A to 20A are adjacent to each other and are in a row and plot no. 6 to 20 are adjacent to each other and are also in a row. As noted above, PW4 CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 59 of 74 was not crossexamined on these assertions and this statement of the witness has gone unrebutted and uncontroverted. Therefore, the site plan filed by defendants Ex.DW1/2 cannot be said to be duly proved or as per the existing site because sequence of the plots as shown in Ex.DW1/2 cannot said to be in existence as same are not in a sequential manner. This fact is strengthened from the statement of DW1 (the defendant no.

1) as during her crossexamination she could not tell the dimensions of the property shown in site plan Ex.DW1/2 and she feigned ignorance to every question put to her regarding location of the plots owned by her and could not state anything about the locations of the plots in the site plan shown in Ex. DW1/2. She even could not deny whether the plot bears the numbers as 6, 7 & 8 and there is no plot bearing No. 7A in the row of 6, 7 & 8 and there is no plot nos. 8 & 9 adjacent to plot no. 7A.

83. The plaintiff, on the other hand, has established on record that Sh. Jawahar Lal after carving out the plots had given them private numbers from 1 to 50 and made special arraignment with regard to numbering of plot No. 1 to 20 in such a manner that plot No. 1 to 20 towards the western side were numbered as 1 to 20 and plots in the rear CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 60 of 74 side of the said plots were numbered as 1A to 20A. The plaintiff has also proved the site plan Ex. PW1/1 which reflects the position as claimed by the plaintiff. The property bearing plot No. 6A has been shown in red colour towards the East of plot No. 6 which has been shown in green colour. Similarly, plot No. 7A has been shown in yellow colour towards the East of plot No. 7. In view of the site plan filed by the plaintiff which clearly reflects the position of plots as claimed by her and the site plan filed by the defendants Ex.DW1/2 which has not been duly proved and does not show the correct position, the claim of the defendants that no plot bearing No. 6A exist and the suit property actually bears No 6 & 7A stands demolished.

84. Admittedly, the defendant no. 1 is in possession of two plots which she has claimed bear No. 6 & 7A. While the plaintiff has claimed that the defendants took forcible possession of her plot bearing No. 6A on 25.09.2016 and has merged the same with her property i.e. plot No. 7A and raised illegal construction thereupon. The plaintiff has also proved the complaint made on 25.09.2016 against the defendants regarding illegal construction and forcible possession of suit property CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 61 of 74 bearing plot No. 6A through the testimony of PW2 Ct. Satpal who proved the said complaint as Ex.PW2/1. The defendant no. 1 during her crossexamination has categorically admitted that she has merged the aforesaid two plots 6 & 7A into one plot. Since Sale Deed Ex.DW1/1 does not support the claim of defendants regarding possession over plot No. 6, the case of the plaintiff is substantiated that the defendants took forcible possession of plot No. 6A owned by her and merged the same with plot No. 7A under the garb of plot No. 6.

85. In the written arguments, it has been argued on behalf of the defendants that even if for the sake of argument, version of the plaintiff is correct that she was dispossessed from the suit property i.e plot No. 6A on 25.09.2016, still the suit filed by the plaintiff is not maintainable and barred by limitation because suit should have been filed within six months from the alleged dispossession on 25.09.2016 as per limitation prescribed in Section 6 of the Specific Relief Act, while the present suit has been filed on 10.12.2017 which is time barred. I am not in agreement with this argument of the Ld. Counsel for defendants. Six months time for filing a suit from the date of dispossession under Section 6 of CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 62 of 74 Specific Relief Act has been prescribed for cases in which the suit of the plaintiff is based on the possession only. However, where the plaintiff claims the possession over the land based on the title, limitation for filing a suit for possession is twelve years from the date of dispossession as per Article 64 and 65 of Schedule appended to the Limitation Act, 1963. The present suit has been filed within twelve years from dispossession and as such is very much within limitation.

86. It has also been argued by the defendants in the written arguments that defendant no. 1 has already obtained a decree of permanent injunction against the husband of the plaintiff, namely Sh. Umesh Tyagi in earlier suit filed by her and in the said suit, during his crossexamination, the husband of the plaintiff admitted the sale deed in favour of defendant no. 1 as well as the suit property bearing No. 6 and 7A and therefore it cannot be said that the suit property bears property No. 6A and it stands proved that the plaintiff has forged and fabricated the documents. Again, I do not find any merit in this contention of the defendants. Admittedly, the plaintiff was not a party to the said suit filed by defendant no. 1 against the husband of the plaintiff. Therefore, any CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 63 of 74 admission made by husband of the plaintiff in the said suit or any findings in the said suit will not be binding upon the plaintiff. Even otherwise, in the present suit, the plaintiff has successfully proved her ownership over the suit property i.e. plot No. 6A.

87. In the light of aforesaid discussions and categorical admission of defendant no. 1 with regard to merging of two plots, the plaintiff has established that the defendants after taking forcible possession of suit property (plot No. 6A) owned by her merged the same with property No. 7A owned by defendant no. 1. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.

Issue no. 3 (Whether the plaintiff is entitled to the decree of possession qua the suit property as prayed for?)

88. The onus to prove this issue is on the plaintiff. In view of my findings under Issue No. 2, since the plaintiff has proved her ownership over the suit property i.e. plot No. 6A and that she was also handed over the possession of the suit property at the time of purchase of the same but the defendants took forcible possession of the same on CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 64 of 74 25.09.2016 and merged the same with property No. 7A, therefore, the defendants who are in illegal possession of the suit property are liable to hand over the possession of the same to the plaintiff. Hence, this issue is decided in favour of the plaintiff and against the defendants.

Issue no. 4 (Whether the plaintiff is entitled to a decree for permanent and mandatory injunction as prayed for?)

89. The onus to prove this issue is on the plaintiff. Since the plaintiff is held to be owner of the suit property and a decree of possession has already been passed in favour of the plaintiff and against the defendants in respect of the suit property, the defendants who are in illegal possession of the suit property cannot be allowed to sell, alienate, gift, mortgage, part with possession or create any third party interest in the suit property. The defendants being illegal occupants in the suit property also cannot raise construction over the suit property. The plaintiff is accordingly held entitled to decree of permanent injunction as prayed for.

90. So far as the prayer of mandatory injunction is concerned, CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 65 of 74 the plaintiff as PW1 has deposed in her examinationinchief that on 25.09.2016 she was informed by Mr. Pawan Tyagi, a neighbor of the suit property that defendant no. 2 alongwith her associates was raising construction over the suit property. She reached the spot and tried to stop construction but the defendant no. 2 did not pay any heed. The plaintiff thereafter made a police complaint regarding illegal construction. There is no crossexamination on these assertions made by the plaintiff. The plaintiff has also proved the complaint made by her on 25.09.2016 by examining PW2 Ct. Satpal from PS Ranhola who proved the said complaint as Ex.PW2/1.

91. The defendants who are admittedly not the owners of the suit property i.e plot No 6A have no right to raise any construction thereupon. Hence, the construction raised by the defendants upon the suit property is held to be illegal and unauthorized and the same is liable to be demolished. The plaintiff is accordingly held entitled to decree of mandatory injunction as prayed for. Hence, this issue is decided in favour of the plaintiff and against the defendants. CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 66 of 74

RELIEF

92. As a sequel to my findings on the aforesaid issues, the suit filed by the plaintiff is decreed and a decree of possession is passed in favour of the plaintiff and against the defendants in respect of suit property i.e. property bearing No.6A measuring 28.47 sq yds out of Khasra No. 18/21 situated in the area of Village Hastsal Colony known as Central Market Block B1, Vikas Nagar, Uttam Nagar, New Delhi, more specifically shown in red colour in the site plan Ex.PW1/1 and consequently the defendants are directed to hand over the possession of the same to the plaintiff.

93. A decree of permanent injunction is also passed in favour of the plaintiff and against the defendants thereby restraining the defendants from alienating, transferring or creating third party interest in the suit property and also from raising any construction over the suit property till they remain in possession of the suit property. A decree of mandatory injunction is also passed in favour of the plaintiff and against the defendants thereby directing the defendant to demolish construction raised over the suit plot.

CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 67 of 74

94. Decree sheet be prepared accordingly.

95. Before parting with the judgment, I also propose to dispose of an application under Section 340 Cr.P.C. moved by defendants which is pending disposal and registered vide separate Miscellaneous Application No. 467/2018.

96. It is stated in the application that previously the plaintiff had filed a suit for permanent injunction against the defendants in respect to the same property which is the subject matter in this suit also. In para no. 16 of amended plaint, the plaintiff has falsely averred that due to certain technical defects, the earlier suit was withdrawn by her with liberty to file the fresh one. Again in para no.19 of her Affidavit in evidence, she stated that the earlier suit filed by her for permanent injunction against the defendants was dismissed on technical grounds. The plaintiff during her crossexamination on 05.09.2018 once again narrated the false fact that the earlier suit filed by her qua the suit property was directed by the Hon'ble Court to be refiled after paying appropriate court fee for possession. While, the earlier suit filed by the plaintiff was neither withdrawn by her nor dismissed on technical grounds nor directed by the CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 68 of 74 Court to be refiled after paying appropriate court fee for possession but the plaint was rejected by the Court of Sh. Dheeraj Mor, Ld. ACJ (South West) vide judgment dated 16.09.2017.

97. It is further averred that the plaintiff during her cross examination on 05.09.2018 had stated that she was only aware about the pendency of suit filed by defendant no. 1 against her husband in respect of plot No. 7A but not about property no. 6, however she admitted nine photographs shown to her from the court record (which were of suit property i.e. plot No. 6 & 7A in earlier suit filed by defendant no. 1 against husband of plaintiff). The plaintiff has admitted that the said photographs reflect the property in respect of which the suit has been filed by defendant no. 1 against her husband. She further admitted that her portion of the plot in the photographs Ex.PW1/D3 is on the right side of the gate and the portion on the left side of the gate belongs to her husband. She stated that number of her plot is 6A and the number of the plot of her husband is 7A. It is stated that the aforesaid admissions of the plaintiff clearly shows that she was well aware about the suit filed by defendant no. 1 against her husband and the decree passed against her CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 69 of 74 husband in respect of the suit property which is the subject matter in the present suit as well. She was also aware the dismissal of the appeal filed by her husband, but still she in connivance with her husband has filed the present false suit by changing the number of the suit property and also filed the wrong site plan showing the plot No. 7A belonging to her husband, whereas the decree has already been passed in favour of defendant no. 1 in respect of the suit property i.e. plot No. 6 & 7A. It is averred that it is clear that the plaintiff has made wrong averments again and again with affidavit and has also made false statement even after taking oath before the Court and raised false claim in respect of the property, ownership and possession of which has already been decided in favour of defendant no. 1. Therefore, it has been prayed that the plaintiff be punished as per the provisions of law for making false averments.

98. The plaintiff has filed reply to the application contending that she was not a party to the previous suit filed by defendant no. 1 against her husband and she could not be supposed to have known the true facts of that suit. It is stated that the plaintiff is a house wife and she CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 70 of 74 is not well versed with the intricacies of the litigation between the parties and she could only understand that for success in the suit appropriate court fee is to be paid. It is contended that there is no clear and unambiguous admission by the plaintiff in her pleadings, other documents or her crossexamination recorded on 05.09.2008 as pointed out by the defendants in the application. The plaintiff has prayed for dismissal of the application.

99. Perusal of the record reveals that in the amended plaint, in para no. 16, the plaintiff has asserted that due to certain technical defects and hurry, the earlier suit was withdrawn by her with liberty to file the fresh one, while in para no.19 of her Affidavit in evidence; she stated that the earlier suit filed by her for permanent injunction against the defendants was dismissed on technical grounds. However, earlier suit filed by the plaintiff was neither withdrawn by the plaintiff nor the same was dismissed on technical ground as evident from the certified copy of order dated 16.09.2017 passed by Sh. Dheeraj More, Ld. ACJ, Dwarka Courts Ex.DW1/7 (Colly) which clearly shows that the plaint earlier filed by the plaintiff was rejected under Order 7 Rule 11 (d) CPC and on CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 71 of 74 this ground the defendants contend that the plaintiff has made a false averment regarding earlier suit filed by her.

100. Of course, there is some discrepancy in the assertions made by plaintiff with regard to disposal of earlier suit filed by her as noted herein above, but it cannot be lost sight that the plaintiff is a house wife and only 7th class pass. Therefore, even if in the plaint the plaintiff has stated that due to some technical defects, the suit was withdrawn with liberty whereas the fact of the matter was that the plaint was rejected, the same would not be sufficient to initiate the criminal proceedings against the plaintiff for making perjury. The plaintiff being a housewife and not so much educated was not expected to know the nitty gritty of the law. As noted above, the Court of Sh. Dheeraj Mor, Ld ACJ, Dwarka had rejected the plaint on the ground that plaintiff had not sought the relief of possession and the same was barred under order 7 rule 11 (d) of CPC and to the same similar effect, the plaintiff has stated in the cross examination that earlier suit filed by her qua the suit property was directed by the Hon'ble Court to be refiled after paying appropriate court fee for possession. Not much was expected from a layman like CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 72 of 74 plaintiff and if she had not stated in legal terms that earlier plaint filed by her was rejected, it cannot be said that she has made a false averment.

101. Another contention of the defendants is that in her cross examination, the plaintiff has stated that she is only aware about the pendency of a suit for property No. 7A and not about property No. 6 but she has admitted 9 photographs shown to her from the court record with respect to the suit property for which a suit was filed by defendant no. 1 and therefore she was well aware about the suit filed by defendant no. 1 against her husband and the decree passed against her husband in respect of the suit property but still she filed the present suit averring false averments. Admittedly, the plaintiff was not a party in the said suit which was filed by defendant no. 1 against the husband of the plaintiff. Therefore, the plaintiff was not expected to know all the facts pertaining to said suit. Merely the plaintiff has admitted that decree has already been passed against her husband and admitted some photographs pertaining to suit property would not make out a case of making false and wrong averments to attract the criminal proceedings.

102. In my considered opinion, in the given facts and CS No.1110/17 Kusum Lata Tyagi vs. Parmod Atri & Anr. Page 73 of 74 circumstances of the case, it is not expedient to initiate legal proceedings under Section 340 Cr.P.C against the plaintiff as sought by the defendants by way of this application. Hence, the application is hereby dismissed.

103. File be consigned to Record Room after necessary compliance. Digitally signed by BALWANT BALWANT RAI BANSAL RAI Date:

                                                 BANSAL            2020.05.23
                                                                   16:46:51
                                                                   +0530

  Announced in the open Court           (Balwant Rai Bansal)
  on 23rd May, 2020       Additional District Judge05 (SouthWest)
                                     Dwarka Courts, New Delhi




  CS No.1110/17         Kusum Lata Tyagi vs. Parmod Atri & Anr.         Page 74 of 74

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Smt. Kusum Lata Tyagi vs Smt. Parmod Atri on 23 May, 2020