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Delhi District Court

R/O House No. 149 vs Sh. Nem Chand (Deceased) on 2 March, 2022

        IN THE COURT OF SH. KARTIK TAPARIA: CIVIL JUDGE ­02
                (CENTRAL), TIS HAZARI COURTS, DELHI.

CS No. 94508/16

In the matter of :­

Sh. Ramu (deceased)
(Through his LRs)

i)       Smt. Ram Kali
         Wife of Sh. Ramu

ii)      Sh. Prem Chand @ Leelu
         S/o Sh. Ramu

iii)     Sh. Lal Chand @ Vijinder
         S/o Sh. Ramu

iv)      Sh. Bhagat Singh @ Khayali
         S/o Sh. Ramu

v)       Sh. Shyam Vir @ Gultu
         S/o Sh. Ramu

vi)      Smt. Mahindri
         D/o Sh. Ramu

vii)     Smt. Sudha
         D/o Sh. Ramu

viii)    Madhu
         D/o Sh. Ramu

ix)      Poonam
         D/o Sh. Ramu

         All at present

                                    1 of 51
         R/o House No. 149, Sarai Julena,
        New Delhi.                                 .........Plaintiffs

                                 Versus
Sh. Nem Chand (Deceased)
(Through LRs.)

i)      Sh. Dharamvir S/o Late Sh. Nem Chand Sharma
        76 SFS Flats, Pocket­B,
        Sukhdev Vihar, New Delhi­110025.

ii)     Smt. Vijay Laxmi, widow of late
        Sh. Pawan Sharma, S/o Sh. Nem Chand

iii)    Shivani D/o Sh. Pawan Sharma

iv)     Shilpi D/o Sh. Pawan Sharma

v)      Shagun D/o Sh. Pawan Sharma

vi)     Mohit S/o Sh. Pawan Sharma

        (iii) to (iv) are minor daughters and son of
        late Sh. Pawan Sharma through their mother
        and natural guardian Smt. Vijay Laxmi
        R/o 262, Sukhdev Vihar, New Delhi­110025.

vii)    Smt. Anita W/o Sh. Shyam Kishore Vats
        (daughter) R/o Sarai Julena,
        New Delhi­110025.

viii)   Smt. Sunita Sharma W/o Sh. Anil Sharma
        (daughter) R/o 1/506, Vidhya Dhar Nagar,
        Jaipur, Rajasthan.

ix)     Smt. Babita Sharma W/o Sh. Pawan (daughter)
        Village Ghonda, Shahdara, Delhi.            .........Defendants


                                   2 of 51
                    Date of Institution:                     16.12.1980.
                   Date of reserving the judgment:          29.01.2022
                   Date of Judgment:                        02.03.2022
                   Final Judgment :                         Suit Dismissed.

                                JUDGEMENT

(Suit for Possession)

1. The brief facts of the case of the plaintiff are that the plaintiff was the owner and in possession of land measuring 9 Biswas comprised in Khasra No. 8, village Jogabai, Delhi state as co­sharer and Biswedar in village Jogabai, Delhi.

1.1 It is further submitted that out of the said 9 Biswas land measuring 5 Biswas was acquired by the Govt. for construction of Okhla Road, New Delhi. The plaintiff has some litigation with Sh. Tula and Sh. Dhani Ram and others with regard to the remaining 4 Biswas of land comprised in Khasra No.8, Village Jogabai, Delhi as these persons claimed themselves as co­sharers in the said land. Ultimately, the litigation between the parties ended, whereby the plaintiff was held to be owner of 2 Biswas and the remaining 2 Biswas became under the ownership of Sh. Jagmal & Dhanpal, sons of Sh. Tula.

1.2 It is further submitted that the plaintiff had constructed three kothas and a chhapar on the said 2 Biswas which were in continuous and un­interrupted possession of the plaintiff.

3 of 51 1.3 It is further submitted that defendant No. 1 Late Jagar Singh (after his death suit was abated against him. Any reference to Late Defendant No. 1 shall be deemed to be made in respect of Late Jagar Singh) is a servant of the plaintiff and was working as a labourer and a servant in the lands of the plaintiff and was also looking after the cattle and agricultural work of the plaintiff after the partition of the country. Defendant No. 1 Late Jagar Singh used to work in the fields and in the house of the plaintiff during day time and he was permitted by the plaintiff to sleep during night time in a Kotha and a Chhappar, having Municipal No. 153, Sarai Julaina, New Delhi, measuring about 1 Biswas and more particularly shown in red colour in the site plan attached with the plaint.

1.4 It is further submitted that defendant No.1 was only a licensee of the plaintiff and was permitted to sleep in the aforesaid accommodation during the night. Defendant No. 1 used to have his meals from the plaintiff's house as defendant had no family of his own and was all alone.

1.5 It is further submitted that about a year back from filing the suit, defendant No. 2 (Any reference to Late Defendant No. 2 shall be deemed to be made in respect of Late Nem Chand Sharma) started visiting defendant No. 1 and started negotiating with defendant No. 1 for occupying the aforesaid Kotha & Chhappar of which defendant No. 1 was only a licensee being servant of the plaintiff. Due to the influence 4 of 51 and pressure of Late Defendant No. 2, Late Defendant No. 1 executed a General Power of Attorney in favor of defendant No. 2, and he now wants to grab the house of the plaintiff shown in red in the site plan attached with the plaint.

1.6 It is further submitted that at the instigation of defendant No.2, defendant No. 1 also made a false application to the Tehsildar Mehrauli for correction of Khasra Girdawari entries in the Revenue Records as the entries in the Revenue Records were all in the name of the plaintiff from the beginning i.e. from prior to 1948 till the filing of the suit in respect of the aforesaid 2 Biswas. The two Biswas of land are no more agricultural land as the plaintiff had constructed Kothas and a Chhappar in the year 1940 and are under continuous ownership of the plaintiff. In fact, the Revenue Courts have no jurisdiction to change Khasra Girdawari entries as it is no more an agricultural land and it has been so held by the Revenue Authorities themselves by the order of Sh. V.P. Singhal, the then Addl. Collector, Delhi vide his order dated 29.03.1967, when the plaintiff had some disputes with the other co­ sharers of village Jogabai, Delhi.

1.7 It is further submitted that defendant No. 1 & 2 are (at the time of filing of the suit) in unauthorized and illegal possession of the aforesaid Kotha & Chhappar shown in red in the site plan. Late plaintiff had asked defendant No. 1 to vacate his house as the plaintiff had terminated the services of defendant No. 1 from the time he started colluding with defendant No. 2. Defendant No. 1 had secretly given 5 of 51 possession to defendant No. 2 and also General Power of Attorney in favour of defendant No. 2. Both the defendants are trespassers, and in unauthorized and illegal possession of the Kotha and the Chhappar belonging to the plaintiff mentioned above.

1.8 It is further submitted that under the above circumstances, the plaintiff is entitled to eject the defendants and be put in possession of the aforesaid Kotha and a Chhappar. Hence, the present suit has been filed by the plaintiff with the prayer that a decree for possession of the suit property No. 153, Sarai Julena, Khasra No. 8, Village Jogabai, Delhi State be passed in favour of the plaintiff and against the defendants.

1.9 During the trial, plaintiff passed away and his LRs were impleaded in his place.

2. Summons of the suit were issued and served upon defendants. The defendants filed the written statement and took the preliminary objections that the suit of the plaintiff is barred by limitation. It was averred that from 1938 onwards Lehna Singh, the uncle of defendant No. 1 was in possession of the suit property i.e. House No. 153, Village Sarai Julaina situated in Mauza Joga Bai. Defendant No.1 was living with the said Lehna Singh. In about 1946 the said Lehna Singh died and since then defendant No. 1 had been in actual physical and exclusive possession of the said house, which is his own house as an owner.

6 of 51 2.1 The plaintiff has filed the present suit with malafide intention to grab the House No. 153. The said house exclusively belongs to defendant No.1. The present market value of the suit house is more than Rs.60,000/­. Plaintiff has not valued the suit properly for purpose of court fee and jurisdiction.

2.2 In the reply on merits, it is denied that the plaintiff was the owner and in possession of land measuring 9 Biswas or to any extent comprising in Khasra No. 8 in Mauza Joga Bai as co­sharer and Biswedar. The House No. 153, 154 and 155 are built on the land bearing Khasra No. 8. It is also mentioned that in Suit No. 232 of 1965, Ramu Vs. Jagmal and Anr., decided by Sh. B.B. Gupta, the then Sub Judge 1st Class, Delhi on 15th December, 1967, it has been held that the plaintiff only purchased the Malba of House No. 154. It was specifically held in the said case that the plaintiff had nothing to do with the said House No. 153, occupied and owned by Ujagar Singh @ Jagar Singh. In the said suit it was admitted by the plaintiff himself that he only purchased the malba of House No. 154 from Sh. Kesar Singh whereas the house in which Ujagar Singh lives bears Municipal No. 153 and in the Sale Deed it is specifically mentioned that towards west of the said House No. 154, there is the house of Ujagar Singh @ Jagar Singh, if the suit house had belonged to plaintiff, he would not have got it mentioned as such in the sale deed of malba in respect of House No. 154. The said judgment is binding on the plaintiff and the present suit is barred U/s 11 CPC.

7 of 51 2.3 It is admitted that out of 9 Biswas of land, comprised in Khasra No. 8, 5 biswas were acquired by the Government for the construction of Okhla Road and the remaining four biswas was under

the houses belonging to Sh. Kesar Singh, Sh. Ujagar Singh @ Jagar Singh, Jagmal Singh and Dhanpal Singh. In order to grab the suit house and the House No. 155, the plaintiff adopted the device of purchasing the malba of House No. 154 from Kesar Singh. The plaintiff filed the aforesaid suit No. 232 of 1965 against Sh. Jagmal Singh and Dhanpal Singh. However, in the said suit it has been held by Sh. B.B. Gupta, the then Sub Judge 1st Class, Delhi that the plaintiff is not entitled to any one of the said houses and that he had only purchased the malba of House No. 154 from Sh. Kesar Singh. It is denied that the plaintiff is the owner of 2 biswas or any other area of the land in Khasra No.8.

2.4 It is denied that the plaintiff had constructed three Kothas and a Chhappar on the said two biswas of land. It is submitted that the H. No. 153 which defendant No. 1 inherited from his uncle Lehna Singh has been in actual physical possession and ownership of defendant No.1 since 1946. Defendant No. 1 has been paying the house tax of the said house No. 153 since 1959 to the Municipal Corporation of Delhi, and prior to it had been paying to the South Delhi Municipal Committee.

In the said House No. 153 there is one Kotha and one Chhapper constructed on more than one biswas of land. Sh. Lehna Singh, the uncle of defendant No. 1 had purchased the land underneath the House No. 153 and constructed the said Kotha and Chhapper in about 1938 when the plaintiff could not have been more than 7 years old. It is 8 of 51 denied that the plaintiff has been in continuous and uninterrupted possession of House No. 153.

2.5 It is denied that defendant No. 1 is or at any time was a servant of the plaintiff. It is also denied that after the partition of the country defendant No. 1 was working as a labourer and/or servant in the land of the plaintiff and also looking after the cattles and agricultural work of the plaintiff. It is submitted that in (1) case No. 9 of 1963­64, Tulla Vs. Ramu, decided by the then Naib Tehsildar on 29.04.1965 relating to House No. 155; (2) case No. CGL 25 of 1965­66, Dhanni & Ors. Vs. Ramu, decided by Sh. T.R. Sabharwal, the then Tehsildar on 26.10.1966 relating to House No. 154; and (3) Ramu Vs. Jagmal & Anr., decided by Sh. B.B. Gupta, the then Sub Judge, 1st Class, Delhi on 15.12.1967, defendant No. 1 appeared as a witness against the plaintiff and categorically stated that the said House No. 153 exclusively belonged to him (defendant No.1). Defendant No.1 had all along been paying the house tax of the said house No. 153. The plaintiff has no right, title or interest in the said house No. 153.

2.6 It is denied that defendant No. 1 was only a licensee and was permitted to sleep in the aforesaid accommodation during the night. It is also denied that defendant No. 1 used to have the meals from the house of the plaintiff. It is submitted that defendant No. 1 was living jointly with the said Sh. Lehna Singh till his death in about 1946. Thereafter, defendant No. 1 is living all alone in the said house No. 153 and is now taking his meals for the last 15­16 years from defendant No. 9 of 51 2, and is being looked after by defendant No. 2.

2.7 It is further submitted that defendant No. 1 has voluntarily and of his own free will executed a General Power of Attorney and a Will in favour of defendant No. 2. Defendant No. 1 being the sole and absolute owner in possession of the said H. No. 153 has the legal right to execute the said documents and bequeath the said house in favour of defendant No. 2. The plaintiff has no right to raise any objection. It is submitted that plaintiff just after purchasing the malba of House No. 154 had been taking steps for wrongfully and illegally grabbing the adjoining houses including the suit house bearing No. 153. Defendant No. 1 has no other relative and when he learnt in 1979 that the plaintiff with the object of grabbing defendant's house, had got false entries made in the Khasra Girdawari, then defendant No. 1 turned to defendant No. 2 for help. For this reason, he also executed a General Power of Attorney and a Will in favour of defendant No.2. Defendant No. 1 has every right to execute the said General Power of Attorney and the said Will in favour of defendant No. 2 as due to old age, defendant No. 1 is entirely dependent upon defendant No.2 2.8. It is further submitted that at the instigation of the defendant No.2, the defendant No.1 had made a false application to the Tehsildar Mehrauli for correction of Khasra Girdawari. As the plaintiff had got made the false entries in the Khasra Girdawari, defendant No.1 had no alternative but to make an application to the Tahsildar for the correction of Khasra Girdawari. The litigation regarding the said Girdawaris is going 10 of 51 on in the Revenue Courts after defendant No.1 came to know about the manipulations by the plaintiff in the revenue records. That upto 1962 the name of the plaintiff was never shown in Khasra. The plaintiff manipulated the entry in the Khasra Girdawari regarding khasra No.8/1, in Kharif 1962. The defendant No. is an illiterate and ignorant man. In 1979 when he needed cement for repair of the said house No.153, he applied for Lal Dora certificate and only then he came to know about the manipulation in Khasra Girdawari by the plaintiff. The defendant No.1 immediately took legal action for correction of the same. The defendant No.1 has also been paying the house­tax of the aforesaid house to the South Delhi Municipal Committee and thereafter to the Municipal Corporation of Delhi. Prayer is made accordingly to dismiss the present suit of the plaintiff with cost.

2.9 Defendant No.1 Sh. Jagar Singh passed away during the continuance of trial. Since he did not leave behind any LRs, the suit was contested only against defendant No. 2 i.e. Sh. Nem Chand Sharma. Defendant No. 2 Sh. Nem Chand Sharma also passed away during the trial and his LRs were impleaded in his place, and they filed their written statement on 09.05.2005. In the said written statement, the ground taken and the facts mentioned in the written originally on behalf of the defendants were reiterated. The same is not reproduced hereby for the sake of brevity.

3. Replication to the written statement of the defendants was filed on 10.09.1981 in which the facts mentioned in the plaint were 11 of 51 reiterated and the allegations made in the written statement were denied. Replications were again filed on behalf of the LRs of the plaintiff to the written statement of the LRs of the deceased defendant No. 2 on 30.08.2005 and 22.03.2007, in which the facts mentioned in the plaint were reiterated and the allegations made in the written statement were denied. The same are not reproduced hereby for the sake of brevity.

4. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 25.11.1981 :­

(i) Whether the plaintiff is the owner of the suit premises? OPP

(ii) Whether the defendants are the trespassers and are in unauthorized possession and illegal possession of the suit premises? OPP

(iii) Whether the suit is within the limitation? OPP

(iv) Whether the suit has been properly valued for the purposes of the court fees and the jurisdiction? OPP

(v) Whether the plaintiff is entitled for the relief claimed? OPP

(vi) Relief.

5. Vide order dated 06.07.2001, the following additional issues were framed:

i) Whether the suit of the plaintiff is barred by limitation, as 12 of 51 alleged? OPD

ii) Whether the suit of the plaintiff is barred by resjudicata, as alleged? OPD

iii) Whether the suit is bad for non­joinder and misjoinder of the parties, as alleged? OPD

6. Vide order dated 02.03.2022, issue Nos. (iii) and (iv) are amended by correcting the onus of proof from plaintiff to defendant i.e. OPP to OPD, as these issues arose from the preliminary objections taken by the Defendants in their written statement.

7. In support of his case, now late plaintiff Ramu examined himself as PW­1 and relied upon the following documents:­

(i) Ex.PW1/1 is the copy of the judgment.

(ii) Ex.PW1/2 is the copy of the Khasra Girdawari in the name of the plaintiff.

(iii) Ex.PW1/3 is the site plan.

PW­1 was cross­examined at length by Ld. Counsel for the defendants.

8. Sh. Lal Chand, son of the plaintiff Sh. Ramu initially was examined in chief as PW­2, however, later on when he was recalled for 13 of 51 his further examination, he was inadvertently examined as PW­1. As PW­1, he didn't rely upon any documents. As PW­2, he relied upon the following documents :­

(i) Ex. PW2/1 is the Site plan of the suit property

(ii) Ex. PW2/2 is the Certified copy of Khasra Girdawari

(iii) Ex. PW2/3 is the Certified copy of Judgment from the court of Sh. LD Gupta, Addl. Collector

(iv) Ex. PW2/4 judgment in appeal dated 13.09.1979.

He was also cross­examined at length by Ld. Counsel for the defendants.

9. Ajit Singh s/o Sh. Attar Singh was also examined a witness. However, due to inadvertence he was examined as PW­2 whereas Sh.Lal Singh Chhaprana had already been examined as PW­2. He stated that Ramu is the owner of the suit property who allowed Jagar Singh to reside therein. He stated that Jagar Singh used to work in the field of Ramu. He further stated that Ramu bought the Malwas of House No. 154 from Sh. Kesar Singh. He didn't rely upon any document.

He was also cross­examined at length by Ld. Counsel for the defendants.

10. PW­3 is Sh. Om Prakash S/o Sh. Ram Saroop. He stated that he knows the parties as he is also from the same village. He further 14 of 51 stated that he has seen the premises in dispute. He also stated that the plaintiff was the owner of the suit premises. He lastly stated that the Defendant No.1 was looking after the cattle and Household work of Ramu, and in that capacity he was staying in the suit property. He did not rely upon any document.

PW­3 was cross­examined at length by Ld. Counsel for the defendants.

11. Sh. Devki Nandan Gupta S/o Sh. Gopi Chand is a summoned witness who had been inadvertently mentioned as PW­3. For easy reference, he is mentioned as PW­3(official), wherever required. He stated that he has brought the summoned record of the property No. 153, Sarai Julena, New Delhi. He deposed that the property is assessed in the name of late Sh. Jagar Singh from 01.04.1959. The property consists of one Kotha and one Chhappar. He further deposed that since 01.04.1983 the property is assessed in the name of Sh. Nem Chand Sharma in the size of one room within roof is 15 x 10 and one Chhappar 8 x 8 and the user is residential. He relied upon following documents:­

(i) Ex.PW3/1 is the photocopy of the Inspection Form of MCD

(ii) Ex.PW3/2 is also the photocopy of the report regarding Revision of Assessment of MCD.

(iii) Ex. PW3/D1 to Ex. PW3/D3 are the certified copies of 15 of 51 documents from Assessment and Collection Department, MCD pertaining to years 1983 and 1984.

He was cross­examined at length by Ld. Counsel for the defendants.

12. PW­4 is Sh. P.N. Nigam, Incharge, Record Room (Revenue). He had brought the summoned record of judicial proceedings in the case titled, "Jagar Singh Vs. Ramu" in suit bearing No. CD/31/79 and the date of decision was 11.01.1982. He relied upon the following documents:­

(i) The copy of the orders dated 11.01.1982 is Ex.PW4/1.

(ii) Mark A to Mark G are the copies of the statements of the witnesses in the said case.

He was cross­examined at length by Ld. Counsel for the defendants.

13. DW­4 is Sh. Kailash Kumar, Patawari, Record Room, Tehsil Mehrauli, (Hauz Khas), New Delhi. He was not examined as he didn't bring the summoned record for want of particulars.

Thereafter, P.E. was closed and the matter was fixed for D.E.

14. Defendant No. 2 Sh. Nem Chand Sharma examined himself as DW­1 and relied upon the following documents :­ 16 of 51

(i) Ex.DW1/1 is the certified copy of the judgment dated 15.12.1967 passed by Sh. V.B. Gupta, the then Sub Judge.

(ii) Ex.DW1/2 is the certified copy of the Decree­sheet.

(iii) Ex.DW1/3 is the certified copy of the statement of Sh. Jagar Singh in Suit No. 232/65.

(iv) Ex.DW1/4 is the certified copy of the appeal.

(v) Ex.DW1/5 is the certified copy of the statement of Sh.

Jagmal Singh in Suit No. 232/65.

(vi) Ex.DW1/6 is the copy of the written statement of Jagmal Singh in Suit No. 336/97 (objected to regarding mode of proof)

(vii) Ex.DW1/7 is the certified copy of the list of witnesses in Suit No. 232/65.

(viii) Ex.DW1/8 is the certified copy of the statement of Sh.

Khilari Das, summoned official from MCD in Suit No. 232/65.

(ix) Ex.DW1/9 is the certified copy of the Sale Deed executed by Kesar Singh in favour of Ramu.

(x) Ex.DW1/10 is the certified copy of the plaint in Suit No. 232/65.

(xi) Ex.DW1/11 is the certified copy of the amended plaint in Suit No. 232/65.

17 of 51

(xii) Ex.DW1/12 and Ex.DW1/13 are the certified copy of the judgment dated 23.10.75 in suit bearing No. 653/74.

(xiii) Ex.DW1/14 is the certified copy of the appeal against the judgment dated 23.10.75

(xiv) Ex.DW1/15 is the application filed by the plaintiff stating therein that Jagar Singh is claiming adverse possession.

15. DW­2 is Sh. Joginder Pal, Advocate S/o Sh. Viveshwar Nath. As one of the attesting witnesses to the will dated 12.11.79 executed by Jagar Singh in favor of Nem Chand Sharma, he was summoned to prove the said will. He relied upon the document Mark Ex.DW2/1 which is the said will.

This witness was cross­examined by Ld. Counsel for the plaintiff.

16. DW­3 is Sh. Kailash Kumar S/o Sh. Tika Ram, Patawari, Record Room, Tehsil Mehrauli, (Hauz Khas), New Delhi. He deposed that he is a summoned witness. He relied upon the following documents:­

(i) Ex.DW3/1 to DW3/6 are the certified copies of the Khasra Girdawari qua the suit property in the name of Late Nem Chand Sharma for the period of years 1984 to 1990.

This witness was cross­examined at length by Ld. Counsel 18 of 51 for the plaintiff.

17. Sh. Dharam Veer Sharma S/o Sh. Nem Chand Sharma was also examined as a witness. However, due to inadvertence his name was mentioned as DW­1, and the documents filed by him were wrongly marked as PW6/2 and so on. He tendered his evidence by way of affidavit Ex.DW1/A. He relied upon the following documents :­

(i) Ex.DW2/1 is the original Will executed by Sh. Jagar Singh.

(ii) Ex.PW6/2 to Ex.PW6/25 are the House Tax receipts in respect of the suit property paid by Late Jagar Singh.

(iii) Ex.PW6/27 & Ex.PW6/28 are the House Tax receipts in respect of the suit property paid by Late Nem Chand Sharma.

This witness was cross­examined at length by Ld. Counsel for the plaintiff.

18. Sh. Alok Sharma S/o Sh. L.N. Sharma also came as witness being the local commissioner. However, an application for the consolidation of evidence of witness in the present suit as well as suit No. 662/98 was moved and the same was allowed. Thereupon, the witness was discharged without testifying in the present matter.

19 of 51

19. Sh. Boota Singh S/o Late Sh. Gyan Chand also filed his affidavit of evidence and inadvertently marked as DW­3. This witness also deposed in favour of the defendant. He also stated that Jagar Singh didn't work for Ramu but worked as an independent labourer doing Palledari. He also stated that Jagar Singh was the owner of the suit property.

This witness was cross­examined at length by Ld. Counsel for the plaintiff.

20. Sh. Bhim Sen S/o Late Sh. Nand Lal also filed his affidavit of evidence and marked as DW­4. This witness also deposed in favour of the defendant. He also stated that Jagar Singh didn't work for Ramu but worked as an independent labourer doing Palledari. He also stated that Jagar Singh was the owner of the suit property.

This witness was cross­examined at length by Ld. Counsel for the plaintiff.

21. Sh. Ram Singh S/o Late Sh. Mehar Chand also filed his affidavit of evidence and marked as DW­5. This witness also deposed in favour of the defendant.

This witness was cross­examined at length by Ld. Counsel for the plaintiff.

22. Sh. Din Mohammed S/o late Sh. Mehruddin also filed his 20 of 51 affidavit of evidence and marked as DW­7. This witness also deposed in favour of the defendant. He also stated that Jagar Singh used to do the work of Palledari.

This witness was cross­examined at length by Ld. Counsel for the plaintiff.

Vide his separate statement, Ld. Counsel for the defendant Sh. Sanjay Aggarwal closed his defence evidence on 06.09.2011.

23. I have heard the arguments of Ld. counsel for parties, and also gone through the evidence on record carefully. My issue­wise findings are as under :­ Issue Nos. 3 and 5 Whether the suit is within the limitation? OPP and Whether the suit of the plaintiff is barred by limitation, as alleged? OPD

24. These two issues are taken together as the same are, in essence, the same, and can be decided together. The burden of proving these issues was on the Defendant. It is the case of the defendants that since 1938, late Defendant No. 1 had been living in the suit property with his uncle Late Sh. Lehna Singh. That after the death of Sh. Lehna Singh in 1946, he has been in actual physical and exclusive possession of the suit property. That the limitation period for filing a suit for recovery of 21 of 51 possession is 12 years, and when calculated from the date of possession of Defendant No.1 i.e. year 1938, the same ends in the year 1950, and hence the suit is barred by limitation.

The defendants though claiming that Late Defendant No. 1 was in the possession of the suit property since 1938, have not placed on record any document to prove the same. In absence of any evidence on this point, the assertion of the defendants is found to be without any force.

25. Further, it is required to be noted that it is the case of the plaintiff that the defendant No.1 was in the permissive possession of the suit property with the consent of the real owner i.e. Plaintiff, as Defendant No. 1 used to work in the fields of the plaintiff, in other words, defendant No. 1 was the licensee of the plaintiff staying in the suit property without paying any rent or license fees. Plaintiff has tried to resist the defence of limitation by stating that the cause of action arose in favor of the plaintiff first time only when Defendant No. 1 got prepared a fabricated and illegal GPA/Will/agreement to sell in favor of Defendant No. 2, thereby losing his character as a licensee as the Defendants' possession became adverse to the title of the Plaintiff.

In this regard, a reference has to be made to Article 65 of the Schedule of The Limitation Act, 1963 which states that the period of limitation for possession of immovable property or any interest therein based on title is 12 years from the date when the possession of the defendant becomes adverse to the plaintiff.

22 of 51

26. On this aspect, a reference may also be made to the Judgment of Hon'ble High Court of Rajasthan in "Kanti Lal vs Smt. Shanti Devi and Ors., AIR 1997 Raj 230":

"84. Now the question which deserves to be considered would be whether the present suit was filed within 12 years from the date of violent invasion of possession of the plaintiff­appellant? In this regard, the Law of Limitation contemplated under Articles 64 and 65 of the Indian Limitation Act are to be examined. Article 64 of the said Act provides that for possession of immovable property based on previous possession and not on title begins to run from the date of dispossession and the plaintiff is required to file a suit within 12 years from the date of his dispossession whereas under

Articles 65 of the said Act for possession of immovable property or any interest therein based on title begins to run when the possession of the defendant becomes adverse to the plaintiff and in such suits, the plaintiff is required to file suit within 12 years from the date when the possession of the defendant becomes adverse to him."

27. The plaintiff has claimed that the possession of the defendant became adverse to the tile of the plaintiff in the year 1979, only when defendant No.1 created GPA/Will/agreement to sell in favor of Defendant No.2. The defendants failed to prove that their possession became adverse to the title of the plaintiff at a prior time, which would make the present suit time­barred.

Accordingly, I hold that the plaintiff has filed the present suit well within the statutory time available to him, and the suit is not time barred. Accordingly, this issue is decided in favor of the plaintiff and against the defendant.

23 of 51 Issue No. 4 Whether the suit has been properly valued for the purposes of court fees and jurisdiction? OPD

28. As already mentioned above, the onus of proving this has been shifted upon the defendant. The defendant has alleged that the plaintiff has wrongly valued the suit at Rs. 500/­, whereas the actual value of the suit property is actually more than Rs.60,000/­. However, the defendants have not led any evidence to show that the present suit is undervalued. In dearth of evidence, I find no force in the preliminary issue raised by the Defendants, and accordingly the issue is decided in the favor of the Plaintiff and against the defendants.

Issue No. 6

Whether the suit of the plaintiff is barred by Res­ Judicata, as alleged? OPD­2

29. The burden of proving this issue was on Defendant No. 2. It is the case of the defendants that the plaintiff had already filed a suit in the year 1965 in the court of Sh. Avtar Singh Sohal, the then Ld. Sub Judge, Delhi for the relief of declaration/possession in regard to Khasra No. 8/1, Mauza Jogabai, Delhi (the suit property being a part thereto), which had already been dismissed by Sh. B.B. Gupta, the then Ld. SJIC, Delhi while judgment dated 15.12.1967. It is further the case of the Defendants that since the right of the Plaintiff in regard of the Suit 24 of 51 property has already been crystallized vide Judgment dated 15.12.1967, whereby the Plaintiff's suit was dismissed, he can not press the same issue in this court in a subsequent litigation as the same is hit by the principle of Res Judicata.

Per contra, it is argued by the Ld. Counsel for the plaintiff that the principle of Res Judicata has no role to play in this litigation as the Defendants herein were not parties to the previous suit, and moreover the judgment dated 23.10.75, as referred above, had been set aside in the appeal preferred against the same, by Sh. R. Dayal, the then Ld. ADJ vide order dated 13.09.79, hence the judgment dated 23.10.75 can't be referred to as the same is now merged with the order passed in the appeal.

30. On the closer scrutiny of the file, it appears that in the gargantuan length of time during which the present suit was contested by the parties (about 42 years), it is lost upon the Plaintiff that there were actually two suits filed by him, one in 1965 and the other one in the year 1974, as opposed to his claim of only one suit. It is also pertinent to note that only the judgment dated 23.10.75 was set aside in appeal, whereas the judgment dated 15.12.1967 was never challenged, and it stands final. Even if the same was challenged, plaintiff failed to apprise the court about the same by bringing the order in the appeal on record. Accordingly, the situation as it stands today is that though the judgment dated 23.10.75 is set aside, the judgment dated 15.12.1967 stands unchallenged and final, hence binding upon this 25 of 51 court.

31. Having decided as above, it remains to be decided whether the judgment dated 15.12.1967 acts as Res Judicata and thus bars the present suit. It has already been decided above that the judgment dated 23.10.75 will have no effect on the present suit as the same has been set aside by the appellate court.

32. The principle of Res Judicata finds it's place in Section 11, CPC, a part of which is reproduced here:­ "Section 11. No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court."

33. As per Section 11 of CPC, Res Judicata is only applicable when the former suit was also between the same parties. However, same is not the position here as the previous suit bearing CS No. 232 of 1965 (as relied upon by the defendants) was not between the same parties. The defendants in present case were not parties to the previous suit though both the suits were filed in respect of the same properties, accordingly I agree with the view taken by the Ld. Counsel for the Plaintiff that the Judgment dated 15.12.1967 has no bearing on the present suit, and the present suit is not barred by Res Judicata.

Accordingly, this issue is decided in the favor of the Plaintiff 26 of 51 and against the defendant.

Issue No. 7

Whether the suit is bad for Non­Joinder and Misjoinder of necessary parties, as alleged? OPD

34. The burden to prove this issue was on the Defendants. However, no evidence has been led by the defendants on this point. Accordingly, in dearth of evidence, this issue is decided in the favor of the plaintiff and against the defendants.

Issue No. 1

Whether the plaintiff is the owner of the suit premises? OPP

35. Burden of proving this issue was on the Plaintiff. To prove that he is the owner, the plaintiff has throughout the case, relied upon two documents: a) Khasra Girdawari i.e. Ex. PW 1/2 (also exhibited as Ex. PW2/2), b) Compromise decree dated 13.09.79 passed by Sh. R. Dayal, The then Ld. ADJ, Delhi in RCA No. 221/79. Both the documents will be dealt with hereunder to determine whether the ownership of the plaintiff is established by them.

36. Ld. Counsel has heavily relied upon the Khasra Girdawari i.e. Ex. PW 1/2 (also exhibited as Ex. PW2/2) to show that the Plaintiff is the owner of the suit property. Ld. Counsel for the plaintiff has also 27 of 51 specifically pointed out at 4th Row in Ex. PW1/2 which shows the name of Ramu s/o Roshan as 'Hissedaar' in the property bearing Khasra No. 676/8/1. I disagree with the view taken by Ld. Counsel for the Plaintiff for several reasons. Firstly, Ex. PW 1/2 is written in Urdu, Plaintiff failed to file the translation of the same in Hindi or English, accordingly these documents can't be read and understood by either of the counsels. Also, the name of Plaintiff can only be seen in Ex. PW 1/2 as it is one of the few things written in Hindi, but the years to which this Khasra Girdawari pertain cannot be made out.

37. Secondly, the defendants have also produced and placed on record several Khasra Girdawari bearing the names of the defendants, same were filed as evidence of DW­3 Sh. Kailash Kumar, Patwari, Record room, Tehsil Mehrauli (Hauz Khas), Delhi exhibited as DW3/1 to DW3/4. DW3/1 is Khasra Girdawari for Kharif 1982 and 1983, DW3/2, DW3/3 and DW 3/4 is for Kharif 1982,1983 and 1984. It is interesting to note that Ex. DW3/1 doesn't find the mention of any of the defendants, however Ex. DW3/2 shows the name of Defendant No. 2 in column No. 14 'change of rights, possession and rent', again Ex. DW3/3 and Ex. DW3/4 shows the name of Defendant No. 2 in column No. 14 'change of rights, possession and rent', however the same appears to be cancelled by a subsequently made cross running over the entry. Even DW­3 in his examination stated that since 01/04/83 till 1995, revenue records qua the suit property are in the name of Sh. Nem Chand Sharma. This clearly shows that the Khasra Girdawari pertaining 28 of 51 to the suit property were severely manipulated, and were subjected to the whims of the revenue officials. Further the history of the case also shows that the both the plaintiff and the defendant have given representations to the Revenue officers at different times regarding the alteration in revenue record, and the Girdawari were manipulated by Patwaris and Naib Tehsildar at several occasions in pursuance of such representations. Accordingly, no reliance can be placed on these Khasra Girdawari as instead of elucidating the truth, they are shrouding it behind the veil of confusion.

38. Thirdly, Khasra Girdharwari is not an ownership document and it doesn't create any title in favor of anyone, at best it can be used as evidence to show that a particular person is in possession. It also doesn't contain the same evidentiary value as Jamabandi, and doesn't create any presumption as is available to the Jamabandi as per the law of evidence, especially when the record is flagrantly distrustful. On this point, I place reliance upon the judgment of Hon'ble Supreme Court in Gurcharan Singh and Ors. vs Prithi Singh and Ors: AIR 1974 SC 223, whereby it was held:­ "6......

Though Khasra Girdawri record is admissible under Section 35, Evidence Act, yet it may be remembered that the statutory presumption of correctness that attaches to record of rights and Jamabandis under Section 44 of the Punjab Land Revenue Act, does not extend to the Khasra Girdawri. Nor could the optional presumption under Illustration (c) of Section 114, Evidence Act, be invoked specially when on the face of it the record was suspicious......"

29 of 51

39. It is also important to be noted that no iota of truth can be imputed to the Girdawari, as it shows the plaintiff to be in the possession of the suit property, however it is the admitted position that the Defendants have been in the continuous possession of the suit property not only prior to filing of the suit but also during the whole pendency of the suit stretching till today.

Accordingly, I hold that the Khasra Girdawari relied upon by the Plaintiff cannot be used to show that he is the owner of the suit property.

40. Ld. Counsel has further relied upon the Compromise decree dated 13.09.1979 passed by Sh. R. Dayal, The then Ld. ADJ, Delhi in RCA No. 221/79 i.e. Ex. PW1/1 (also PW2/4) whereby the appeal was decided in terms of the compromise deed (Ex. PW1 therein) made between the parties. In the compromise deed, the respondent admitted that the appellant (plaintiff herein) is the absolute owner of the disputed three kothas, one chhappar and court­yard existing over 2 Biswas (100 sq.yds.) of land comprised in Khasra No.8 situated in Mauza Jogabai, Delhi. The respondents also admitted that the appellant is in possession of the two kothas and court­yard and that one Kotha and one chhapper is in possession of Ujagar Singh (Defendant No. 1 herein) as a licensee under the appellant.

41. Ld. Counsel for the Plaintiff submits that the compromise decree has clearly spelt out the ownership rights of the plaintiff over the 30 of 51 suit property, and since the decree has never been challenged the same has attained finality. Accordingly, the compromise decree has become a title document in favor of the Plaintiff.

The same is vehemently opposed by Ld. Counsel for the defendants, on the ground that the Defendants were not parties to the agreement between the Plaintiff herein and the other people, hence the same is not binding upon them. It was further argued that the agreement between the plaintiff and a third party to the effect that the Defendants are licensees of the suit property is invalid, immoral and null in eyes of law. Ld. Counsel also relies upon following two judgments:­

a) Badami (deceased) by her LRs v/s Bhali: AIR 2012 SC 2858;

b) Sneh Gupta vs Devi Sarup & Ors: (2009) 6 SCC 194.

Plaintiff didn't rely upon any case law in support of his contention.

42. Though in Badami (deceased) by her LRs v/s Bhali(Supra), Hon'ble Supreme Court laid down that when a compromise decree is laced with fraud, it vitiates the judicial act and hence is liable to be set aside, the same is not applicable in the present case as the compromise decree was set aside by Hon'ble Apex Court in a Civil Appeal. Whereas in the present case, the defendants have merely asserted that the Plaintiff herein obtained the Compromise decree by playing fraud upon the court, without challenging the 31 of 51 compromise decree in any manner. There is no cross suit pending between the parties, and as such this court can't express its opinion whether the compromise decree was obtained by fraud. Accordingly, I hold that the reliance on the Badami (deceased) by her LRs Vs. Bhali(Supra) is misplaced. Second judgment relied upon by the defendants will be discussed later on at the appropriate place.

43. Though, the Ld. Counsel for the Plaintiff has vehemently argued that the said Compromise Decree is a valid Title Deed in regard to the suit property, I find the argument completely devoid of merits owing to several reasons. Firstly, Order 23 Rule 3 CPC which deals with the provision of compromise was amended by The Act 104 of 1976, which provided in essence that a compromise deed must be in respect of the parties to the suit. Order 23 Rule 3 CPC, as it stands today, is reproduced hereunder:­ "Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly or in part by any lawful agreement or compromise in writing and signed by the parties] or where the defendant satisfied the plaintiff in respect of the whole or any part of the subject­matter of the suit, the Court shall Order such agreement, compromise satisfaction to be recorded, and shall pass a decree is accordance therewith so far as it relates to the parties to the suit, whether or not the subject­matter of the agreement, compromise or satisfaction is the same as the subject­matter of the suit ....."

(Emphasis Supplied)

44. It can be seen clearly that the Defendants herein were not parties to the previous suit bearing No. 653/74, against the decree of 32 of 51 which the appeal was filed. Since, the compromise decree was passed in the appeal against the impugned judgment of the said suit, in which the defendants were not parties, such compromise decree is not binding upon the defendants. On this aspect, I find strength in the Judgment of Hon'ble Supreme Court in Sneh Gupta vs Devi Sarup & Ors(Supra) as referred by the defendants, whereby it was held :­ "22. Order XXIII, Rule 3 of the Code of Civil Procedure provides that a compromise decree is not binding on such defendants who are not parties thereto. As the appeal has been allowed by the High Court, the same would not be binding upon the appellant and, thus, by reason thereof, the suit in its entirety could not have been disposed of."

45. The factual matrix of the present case is a notch higher that the factual matrix of the judgment referred above as the present Defendants were not only non­party to the compromise agreement, but were also not party to the suit or appeal. The non­applicability of the compromise decree is exacerbated manifold when it is taken into perspective that the impugned judgment also held that the suit of the Plaintiff was hit by non­joinder of now Late Sh. Ujagar Singh (Defendant No. 1 herein), as he was a necessary party in that suit. The Plaintiff, even upon having cognizance of the said fact, entered into a compromise decree with the defendants (in the previous suit) thereby trying to oust the Defendants herein from the suit property.

46. Secondly, the Plaintiff had filed the previous suit bearing No. 653/74 for the relief of Declaration to the effect that the Plaintiff be declared as the Biswedar and Co­sharer in the Village Jogabai, in 33 of 51 possession of three build houses(3 Kothas) along with a Chapper and a land ad­measuring around 2 Biswas­ a part of Khasra No. 8 situated in Mauza Joga Bai, and that the defendants have no right, title or title in the suit property. Since the said suit was for Declaration, the judgment and order on appeal can also be in respect of Declaration only. It is trite law that Declaration is a right in personam, thereby only affecting the parties to the suit and persons claiming under them. The effect of declaration is also laid down in Section 35 of The Specific relief Act, 1963, which is reproduced hereunder:

"35. Effect of declaration.

A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of declaration, such parties would be trustees."

Since, the defendants herein were neither the parties to the suit, nor persons claiming through the parties, the declaration made by Ld. Appellate Court vide Compromise Decree dated 13.09.79 doesn't affect the defendants herein.

47. Thirdly, it is trite law that a consent decree is a contract between the parties to the suit with the seal of the court superadded to it. The same was held in several judgments including Sneh Gupta vs Devi Sarup & Ors (Supra), Baldevdas Shivlal & Anr vs Filmistan Distributors (India) Pvt. Ltd. And others [(1969) 2 SCC 201], Parayya Allayya Hittalamani vs Sri Parayya Gurulingayya Poojari 34 of 51 and Ors. [JT 2007 (12) SC 352].

Since, a consent decree is a contract between the parties to the suit, rules of Contract are also applicable to it. Accordingly, as per the rule of Privity of Contract, only the parties to the agreement are bound by the terms of such agreement, and it cannot confer any right or impose any obligation upon anyone who is not a party to such agreement, subject to the limitations as available under the Law. In view of the same, since the defendants were not party to the compromise deed/compromise agreement, the same is not binding upon them as there was no privity of contract between the Plaintiff and the defendants.

48. In view of the lengthy discussion, I hereby hold the firm opinion that the compromise deed dated 13.09.79 passed by Sh. R. Dayal, the then Ld. ADJ, Delhi in RCA No. 221/79 i.e. Ex. PW1/1(also PW2/4) doesn't confer any title upon the Plaintiff in respect to the suit property in the present suit.

49. Since, both the documents relied upon by the Plaintiff for showing his title to the suit property have been discredited in above held discussion, there is nothing on record to conclude that the Plaintiff is the owner of the suit property. During his cross examination, now deceased Plaintiff had stated that he has a sale deed in his favor in respect of the suit property, however he could not file the same as the same was field in a different proceeding. However, in his cross­examination, he couldn't remember the details of such proceeding. Even otherwise, the concerned court staff was never called upon as a witness to bring the 35 of 51 court record to show the existence of such sale deed. Also, the Plaintiff stated that out of his total property of 9 Biswas, 5 Biswas were acquired by the Government and only 4 were left the plaintiff. However, the plaintiff failed to place on record any award qua such acquisition which could show that the Plaintiff was the owner of the property. Lastly, the Plaintiff has relied upon the testimonies of the PWs to show that he is the owner of the suit property, however the same cannot be used to decided ownership in dearth of any documentary evidence.

In view of the abovesaid discussion, I am of the opinion that Plaintiff has failed to prove by any documentary or oral evidence that he is the owner of the suit property. Despite of making reference to a Sale deed qua the suit property in his examination, it was never brought on record to prove a clear title, instead reliance was placed on Khasra Girdawari and Compromise decree which have already been discredited vide this judgment. Accordingly, I hold that the Plaintiff is not the owner of the suit property.

This issue is decided in favor of the Defendant and against the Plaintiff.

Issue No. 2

Whether the defendants are the trespassers and are in unauthorized possession and illegal possession of the suit premises? OPP

50. The burden of proving this issue was on the Plaintiff. It is the case of the Plaintiff that he is the owner of the suit property, and late 36 of 51 defendant No. 1 was allowed to reside in the suit property at night as he worked in the fields of Plaintiff. That the Defendant No.1 started residing in the suit property as a licensee, and the property remained in the possession of the plaintiff through Defendant No. 1. That in the year 1979, Defendant No. 1 illegally transferred the suit property to Defendant No. 2 by way of GPA/Agreement to sell and allied documents. That die his illegal acts, Defendant No. 1 lost character of a licensee as he based the title of the property in himself, resultantly the Plaintiff was illegally dispossessed from the suit property.

Having gone through the basic pleadings of the plaint, it is required to see the relevant law regarding the recovery of possession of suit property. It is trite law that a suit for recovery of possession of an immovable property can be maintained either (i) on the basis of title, or

(ii) on the basis of possessory title. In this respect, a reference may be made to the judgment of Hon'ble Supreme Court in "Nair Service Society Ltd. Vs Rev. father K.C. Alexander & Ors., AIR 1968 SC 1165" wherein it was held:

"The uniform view of the courts is that if S. 9 of the Specific Relief Act is utilised the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of 6 months has passed questions of title can be raised by the defendant and if he does so the plaintiff must establish a better title or fail. In other words, the right is only restricted to possession only in a suit under S.9 of the Specific Relief Act but that does, not bar a suit on prior possession within 12 years and title need not be proved unless the defendant can prove one. The present amended articles 64 and 65 bring out this difference. Article 64 enables a suit within 12 years from dispossession, for possession

37 of 51 of immovable property based on possession and not on title, when the plaintiff while in possession of the property has been dispossessed. Article 65 is for possession of immovable property or any interest therein based on title. The amendment is not remedial but declaratory of the law."

51. Accordingly, the law as laid down by the above referred judgment is that if a suit for possession is not filed under Section 9 of the Specific Relief Act (Section 6 of Specific Relief Act, 1963), the defendant can raise the defence of the title (or lack of it) of the plaintiff, and if the same is done, it is incumbent upon the plaintiff to establish a better title or his suit shall fail. That is to say, a suit for possession on the basis of prior possession can be maintained by the plaintiff without proving his title, and he is only required to show better title.

52. Coming back to the present case, the present suit is not maintainable only on the basis of the Title as the plaintiff has only relied upon Khasra Girdawari and Compromise decree to show his ownership, however the same have been discredited as title documents in the foregoing discussion. Now, it is to be seen whether the Plaintiff has been successful in proving better title.

53. Plaintiff has based his prior possession of the suit property on the basis of his ownership. It is averred by the plaintiff in his plaint that he has been in possession through Defendant No.1, as Defendant No. 1, being licensee, is in the permissive possession of the suit property on Plaintiff's behalf. It is further averred that the Plaintiff had 38 of 51 only been dispossessed in the year 1979 when late Defendant No. 1 executed an illegal document qua the transfer of the property in favor of Late Defendant No. 2. From a bare perusal of the factual matrix as stated herein, it can be seen that the Plaintiff's suit could only survive if he was successful in proving his title, as the questions of title and possession in the present suit are inextricably bound together. However, the plaintiff has miserably failed to prove his title, and accordingly on the basis of the pleadings it cannot be said that he was in possession of the suit property through Defendant No. 1.

54. Even if the question of title is kept aside for a while, and the case of the plaintiff is reconsidered only on the basis of better title, the evidence led by the parties is to be considered. Defendants in their written statement, and their evidence have maintained the same stance that they are the owners of the suit property not only on the basis of the Khasra Girdawari filed by them but also in view of the fact that the suit property was constructed by Late Sh. Lehna Singh(Grandfather of Late Defendant No. 1) in the year 1938, and since then defendant No.1, and after his demise Defendant No. 2 and subsequently LRs of Deceased Defendant No. 2 are residing in the suit property as owners in possession.

55. In this respect Section 110 of The Indian Evidence Act, 1872 lays down it that the person in possession is presumed to be the owner of the property unless proved otherwise, and the burden of proving the same is on the person who is claiming otherwise. Section 39 of 51 110 is reproduced down below:­ "110. Burden of proof as to ownership ­­ When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner."

56. Since it is admitted by the plaintiff that the Defendant has been in possession of the suit property since long i.e. even before the filing of the suit (though in the capacity of the licensee), and averse claims are made in respect of the ownership of the suit property, the plaintiff in light of Section 110 had a heavy burden to prove that the defendants are not the owner of the suit property. To discharge the same, Plaintiff called upon himself and his son Sh. Lal Chand (after Plaintiff's demise) as PW­1. Due to inadvertence, they both were examined as PW­1.

57. PW­1 relied upon Copy of the judgment in appeal as Ex. PW1/1, Khasra Girdawari as Ex. PW1/2 and Site plan of the suit property as Ex. PW1/3. In his testimony, PW­1 (deceased plaintiff) stated that he had given the possession of the suit property to Defendant No. 1 about 10­12 years back, without charging any rent, as he was doing the household work of the Plaintiff as well as other people. During his cross examination, PW­1 admitted that he didn't receive any notice regarding the acquisition of the remaining 5 Biswas of Khasra in Question, nor received any compensation against the said acquisition. It was further stated that the witness had never seen Lehna Singh, nor knew that Lehna Singh was the uncle of Defendant No.1. It was further 40 of 51 stated that he didn't know that the real name of Defendant No.1 is Ujagar Singh. Lastly, it was stated that he bought the Malwas of the suit property from one Kesar Singh in the year 1955 by way of registered Sale deed, however the same was not filed on record as it was filed in some other case. Upon inquiry, PW­1 could not tell the name of the court where the same was filed. Nothing worthy of reproducing here was testified by Sh. Lal Chand i.e. Subsequent PW­1 in his testimony.

58. PW­2 Sh. Ajit Singh was called to prove that the plaintiff is the owner of the suit property. In his testimony, he stated that the Plaintiff is the owner of the suit property, and that the same is located at the back of House No. 154. It was stated that the deceased plaintiff bought House No. 154 from one Kesar Singh by buying the Malwas. It was further averred that Deceased defendant No. 1 worked in the fields of the Plaintiff. Lastly, it was stated that he is on friendly terms with the son of the plaintiff i.e. Lal Chand and that is why he came to the court.

59. It is pertinent to mention, in order to dispel any confusion, that testimony of Sh. Lal Chand was also recorded as testimony of PW­2 due to inadvertence. As PW­2 he relied upon Site plan of the suit property as Ex. PW2/1, Certified copy of Khasra Girdawari as Ex. PW2/2, Certified copy of Judgment from the court of Sh. LD Gupta, Addl. Collector as Ex. PW2/3, judgment in appeal as Ex. PW2/4. It was stated by Sh. Lal Chand that Deceased Defendant No. 1 worked in the agricultural land of Plaintiff and used to feed his cattle. It was lastly 41 of 51 stated that 5 Biswas out of 9 Biswas of the total land was acquired and a compensation was paid at the rate of 50 Paisa per sq. yard. During his cross examination, Sh. Lal Chand contradicted his testimony by stating that no compensation was paid by the Government in respect of the acquired land. He again contradicted himself by stating that he doesn't know whether the government acquired the 5 Biswas free and without paying the compensation.

60. PW­3 Sh. Om Prakash, a neighbour was called as witness. He stated that the deceased Plaintiff is the owner of the suit property, and that Jagar Singh used to reside in the suit property before his death and used to look after the cattle of Plaintiff and did his household chores. In his cross examination, witness denied the suggestion that there is no House no. 154 at the back of the suit property i.e. House No.

153. However, after three lines, contradicted himself by admitting the suggestion that at the back of House No. 153, there is House of Jagmal­ Dhanpal, and voluntarily stated that the same is house No. 155.

61. Sh. Devki Nandan was also summoned as a witness to bring House Tax assessment on record. It is pertinent to note that due to inadvertence Sh. Devki Nandan was also mentioned as PW­3. For ease of reference, he will be referred to as PW­3(official), wherever required. He brought the summoned record and relied upon PW3/1 and PW3/2 as Inspection report. However, the same are not read into evidence as they are photocopies and were not proved as per the rules of proving secondary evidence. He stated that since 01.04.1959, the property is 42 of 51 assessed in the name of Sh. Jagar Singh, and since 01/04/83 in the name of Sh. Nem Chand Sharma. He further relied upon Ex. PW3/D1 to Ex. PW3/D3, being the certified copy of the House Tax assessment record in the name of Sh. Nem Chand Sharma in respect of suit property. Witness stood uncontradicted in his cross examination.

62. Sh. P.N. Nigam was also summoned as a witness i.e. PW­4 to bring on record the certified copy of the judicial record in CD/31/79 in the case of Jagar Singh vs/ Ramu which was decided on 11/01/82. He relied upon the copy of the order dated 11/01/82 i.e. Ex. PW4/1, and Mark A to Mark G i.e. Statements of the witnesses.

63. Sh. Kailash Kumar, Patwari from record room of Hauz Khas was also called as witness, who was inadvertently mentioned as PW­4 in his testimony. However, he didn't bring the summoned record for the want of full particulars.

64. From the evidence, it can be clearly seen that all the private witnesses claim that the Ramu is the owner of the suit property, however no one can show as to how he became the owner. Though PW­1 in his testimony stated that he bought the suit property i.e House No. 153 from one Kesar Singh by way of registered sale deed, PW­2 Sh. Ajit Singh has created a huge dent in the case of the plaintiff by stating that the sale deed as stated above was in respect of House No. 154. Accordingly, from the testimony of the private witnesses, it cannot be established that the Plaintiff is the owner of the suit property. However, 43 of 51 all the witnesses have agreed that earlier Defendant No.1 and subsequently Defendant No.2 was in the possession of the suit property.

65. The biggest loophole in the case of the plaintiff is the cause assigned by different witnesses to the possession of the defendants in the suit property. In his plaint, it was mentioned by the plaintiff that Defendant No.1 was put in the possession of the suit property as he was a servant of the plaintiff and worked as a labourer in the agricultural lands of the plaintiff and looked after his cattle. In replication, it is averred that Defendant No.1 worked in the fields of the Plaintiff. However, in his testimony, PW­1 Late Ramu stated that Jagar Singh worked in his (Plaintiff's) house as well as other people's houses, and that is why he was allowed to stay in the suit property. PW­2 Ajit Singh stated that Defendant No.1 worked in the fields of the Plaintiff whereas other PW­2 Lal Chand Chhaprana (son of the deceased plaintiff) stated that Defendant No.1 worked in the agricultural land of Plaintiff and used to feed his cattle. Lastly PW­3 averred that Defendant No.1 worked in the household of the plaintiff and used to feed his cattle. Accordingly, the testimony of PW­1 late Ramu is contradictory not only with the contents of the plaint but also with the testimony of other witnesses. Moreover, Plaintiff failed to show as to in whose households, defendant No. 1 used to work. These people were never called as witnesses to corroborate and prove the same. Plaintiff further failed to show as to how much salary/wages was paid to Defendant No.1. This fact is necessary to know as it is the proved case that since 1959 till today, the defendants have been paying the House Tax. It is not shown that the wages of Late 44 of 51 Jagar Singh, for doing the menial jobs as alleged by the Plaintiff, was sufficient to pay the House Tax of the suit property. Lastly, Plaintiff failed to show where these agricultural fields were located where Defendant No. 1 allegedly used to work because as per the testimony of the Plaintiff, as well as the history of the case, the agricultural fields were either acquired by the Government or were converted by the Biswedars for constructing their houses. Accordingly, I hold that the case as put forward by the Plaintiff that Defendant No. 1 was his licensee in the suit property is not established at all.

66. PW­1 during his examination in chief dated 25.07.1983 stated that the Defendant No. 1 has been residing in the suit property only for 10­12 years. However, in his plaint, Plaintiff has averred that Defendant No. 1 had been working in his fields since partition and was permitted by the Plaintiff to live in the suit property. Further, in judgment dated 19/07/67 in suit no. 232/1965 titled as 'Ramu Vs. Jagmal and Dhanpal' also exhibited as Ex. DW1/1, it is clearly recorded that in his cross­examination, PW 8 Ramu (deceased plaintiff herein) stated that Sh. Ujagar Singh (Deceased Defendant No.1 herein) is residing in House No. 153(Suit property herein). Accordingly, it becomes clear that time­lines given by Late Ramu in different proceedings at different times are mutually contradictory suiting his own convenience. Lastly, DW1 Sh. Dharam Veer Sharma S/o of Late Sh. Nem Chand Sharma (defendant no. 2 herein) also placed on record several MCD tax receipts paid in respect of the suit property for different years. The earliest of such tax receipts is Ex. PW6/10 which shows that the House Tax was paid by 45 of 51 Jagar Singh for the year 1959­1960 on 24/08/1960. This evidence being the original Tax Receipts completely decimates and falsifies the version of the Plaintiff that Late Defendant No.1 came in the property only 10­12 years back. This Receipt also corroborates the testimony of PW­3 (official) Sh. Devki Nandan that the suit property is assessed in the name of Late Jagar since 01/04/59.

67. In view of the observations made above, I am of the firm opinion that PWs have failed to prove that the Plaintiff was the owner of the suit property as no cogent evidence is led by any witness. Further the stand taken by the private witnesses was contradictory as held above, and they couldn't agree as to how late Jagar Singh came in the possession of the suit property. PW­3(official) also disproved the case of the Plaintiff and showed that the property is assessed in the name of Sh. Jagar Singh since long. Lastly, late Plaintiff and his son have contradicted themselves in their testimony on several points and their testimonies can not be relied upon to unearth the truth. The stand taken by Late Ramu has wavered in different legal proceedings on different points as per his convenience, hence can't be considered to be free of blemish. The upshot of the abovesaid discussion is that the Plaintiff has not only failed to prove that he is the owner and that Defendants are unlawful occupants in the suit property by way of Documents but also by way of oral testimonies, indirect evidence and surrounding circumstances.

68. After a thorough dissection of Plaintiff's evidence, nothing 46 of 51 more remains in the suit to be adjudicated upon and discussion of DE is a mere formality. However, for an exhaustive and holistic adjudication, DE is also briefly discussed in the succeeding paragraphs.

69. Late Sh. Nem Chand Sharma (Defendant No. 2 herein) came as DW­1 and relied upon several documents as mentioned above in Para No. 14. The same are not mentioned here for the sake of brevity. It was stated that the land underneath the suit property was bought by Late Sh. Lehna Singh from one Rao Khyali Ram. That Lehna Singh constructed the suit property and lived there with Late Sh. Jagar Singh. That after the death of Lehna Singh in 1946, Jagar Singh came in the exclusive possession of the suit property. It is further stated that Late Jagar Singh was not working for the plaintiff but was an independent labourer. No proof has been adduced to show that Sh. Lehna Singh bought the said land from Rao Khyali Ram, and the same is not taken into account while deciding the present suit.

70. Sh. Joginder Pal came as DW­2 to prove the Will dated 12.11.79 made by Late Jagar in favor of Late Nem Chand Sharma. It is stated by the witness that he was one of the attesting witnesses of the said will. However, the said Will has never been challenged by the Plaintiff. Rather, it has been repeatedly admitted by the Plaintiff in pleadings and evidence. Accordingly, the testimony of PW­2 is superfluous.

71. Sh. Kailash Kumar, Patwari, Record room, Mehrauli, Hauz 47 of 51 Khas was summoned a witness and testified as DW­3. He produced and relied upon Ex. DW3/1 to Ex. DW3/6 being Khasra Girdhwari of different periods. It is stated that from 17.11.84 to 1995, Khasra Girdawari are in the name of Nem Chand Sharma i.e. Late Defendant No. 2. In his cross examination, it is stated by the witness after reading a copy of the order dated 21.07.83 passed by Ld. SDM that in 1982, Ramu (Plaintiff herein) was shown as the Kashtkar of the suit property, and the name of Nem Chand Sharma is not shown as owner. The effect and efficacy of the Khasra Girdawari in deciding the present suit is already discussed above, and it warrants no further discussion.

72. One Alok Sharma, Local commissioner in Suit No. 337/96 titled as Nem Chand Sharma vs Prem Chand and Ors. also came as witness. However, an application for the consolidation of evidence of witness in the present suit as well as suit no. 662/98 was moved and the same was allowed. Thereupon, the witness was discharged. However, this consolidated testimony is nowhere to be found in the file, hence not considered.

73. Sh. Dharam Veer Sharma s/o Late Nem Chand Sharma came as DW­1. It is important to note that inadvertently he was mentioned as DW­1, whereas Late Sh. Nem Chand Sharma had already been examined as DW­1. He filed several documents, important of which are House tax receipts of the suit property bearing Ex. PW6/2 to PW2/25 paid by Late Jagar Singh, and Ex. PW 6/26 and Ex. PW 6/27 48 of 51 paid by Late Nem Chand Sharma. As already stated above, the first of these receipts is of the assessment year 1959­60 according to which the house tax of the suit property was made by the Late Jagar Singh. It is already held above that these early House Tax receipts decimate the case of the plaintiff that Defendant No. 1 came in the possession of the suit property only 10­12 years back (from the testimony of Late Ramu). It is also paramount to note that though these Tax receipts don't create any ownership right in favor of the Defendants, but bolster their case that they have been in uninterrupted possession of the suit property at least since 1959. It also creates a strong presumption in favour of the defendant and against the Plaintiff that the Defendants have better title in the suit property, as they have been continuously paying House Tax of the suit property. Plaintiff has neither paid House Tax for the suit property for any assessment year nor raised any objection in the office of MCD regarding the fact that late Jagar Singh was paying House Tax without having any authority to do so, by asserting his ownership in the suit property. Accordingly, I hold that these Tax Receipts, in dearth of any direct evidence, also show that the defendants have a better title and right in the suit property than the Plaintiff. Nothing worthy of mentioning here emerged from the cross examination of the witness. Documents as mentioned above remain unchallenged.

74. Further, Sh. Boota Singh, Sh. Bhim Sen, Sh. Ram Singh and Sh. Din Mohammad appeared as DW­3, DW­4, DW­5 and DW­7 respectively. Nothing worthwhile came from their testimonies. Ld. Counsel for the Plaintiff has tried to contradict them on the point that 49 of 51 they were not aware where the suit property was, and that they cannot say with unquestionable authority that the Defendants are the owners of the suit property, and that the testimony was given at the behest of the defendants.

75. However, their cross examination is inconsequential as I have already held above that the Plaintiff had to prove that he is the owner of the suit property but he failed to discharge the said burden. It is also held above that the Defendants have also failed to show any direct evidence to prove that they are the owners of the suit property. Accordingly, mere assertion on behalf of these witnesses that the Late Sh. Jagar Singh was the owner of the suit property without bringing any admissible document to prove the same, will not have any bearing on the present suit. However, one thing which comes out of the testimony of Defendant Nos. 3, 4 and 7 is that they all have averred and corroborated each other's testimony on the point that Late Jagar Singh was not working in the fields of Late Plaintiff but was doing the work of palledaarii independently. They remained uncontradicted on this point. This also pokes a hole in the version of the Plaintiff and PWs that Late Jagar Singh was allowed to stay in the suit property by Late Ramu as he was working in his (Ramu's) fields/doing Household chores/feeding cattle.

76. Accordingly, in view of the discussion held above, after having a meaningful and substantive reading of the pleading, dissecting the testimonies of the witnesses and carefully weighing the evidence 50 of 51 brought forth, I am of the considered view that the Plaintiff failed to prove that his title to the suit property is better than that of the Defendants. I am of the further view that the Plaintiff failed to prove with any reasonable certainty that the defendants are the trespassers and are in unauthorized possession and illegal possession of the suit premises. Lastly, I am of the view that the plaintiff failed to prove that he is entitled to recover the possession of the suit property from the defendants.

Accordingly, the present issue is decided in favor of the defendants and against the plaintiff.

Relief.

77. In view of the findings given on all the aforesaid issues, the suit of the plaintiff is hereby dismissed.

Parties to bear their own cost.

Decree­sheet be prepared accordingly.

File be consigned to record room as per rules.

Announced in the open ( Kartik Taparia ) court today on 02.03.2022. Civil Judge ­02 (Central), Tis Hazari Courts, Delhi.

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