Delhi District Court
Roshan vs Laxman on 26 March, 2025
IN THE COURT OF MS. SHILPI M JAIN: DISTRICT JUDGE-05,
SOUTH WEST DISTRICT, DWARKA
COURTS, NEW DELHI
CS DJ ADJ/16229/2016
CNR No. DLSW010016112016
IN THE MATTER OF :
1. SH. ROSHAN
S/O LATE SH. KESHO RAM
2. SMT. GULAB DEVI
W/O LATE SH. KESHO RAM
3. SH. JAIPAL
S/O LATE SH. KESHO RAM
4. SH. BIJENDER
S/O LATE SH. KESHO RAM
5. SH. MAHESH
S/O LATE SH. KESHO RAM
6. SMT. ROSHNI
D/O LATE SH. KESHO RAM
ALL PRESENTLY RESIDING AT:
VILLAGE PARNALA, DISTT: JHAJJAR,
HARYANA
THROUGH THEIR SPA/PLAINTIFF NO.1
SH ROSHAN .............PLAINTIFF
VERSUS
1. BITTOO
S/O SH. LAXMAN
Digitally
CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 1 of 29 signed by
SHILPI M
SHILPI JAIN
M JAIN Date:
2025.03.26
16:16:43
+0530
C/O KALA S/O RAMTI
R/O VPO TAJPUR KHURD,
NEW DELHI
2. SH. LAXMAN
S/O SH. RAM MUNIM
R/O KH.NO.92,
VILLAGE TAJPUR KHURD,
NEW DELHI-110071 ...........DEFENDANTS
Date of Institution : 11.03.2016
Date of Arguments : 10.03.2025
Date of Judgment : 26.03.2025
SUIT FOR POSSESSION, PERMANENT INJUNCTION
AND DECLARATION
JUDGMENT
INDEX FACTUAL BACKGROUND ....................3 ISSUES ....................6 EVIDENCE GIVEN BY PARTIES ....................7 SUBMISSIONS OF THE PARTIES ....................10 ISSUEWISE ANALYSIS & FINDINGS ...................11 CONCLUSION ...................21
1. Plaintiff has filed the present suit for possession, permanent injunction and declaration qua the property situated in the extended Lal Dora of village Tajpur Khurd, New Delhi, measuring about 195 sq. yards, out of khata-khatoni no. 121 and Khasra no. 92, 95, 95, 191 (hereinafter referred as the "suit property") against the defendant with the following prayer:
"a. Pass a decree of possession in favour of the plaintiffs and against the defendant, Thereby directing the defendant hand over the physical and peaceful possession of the suit property Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 2 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:41 +0530 after removing the illegal construction over the suit property i.e. situated in the extended Lal Dora of village Tajpur Khurd, New Delhi, measuring about 195 sq. yards, out of khata- khatoni No.121 and Khasra No.92,95,96,191; b. Pass a decree of permanent injunction thereby restraining the defendant, his associates, agents, assignees etc from raising any further illegal construction in the suit property and further direct them to allow the plaintiffs to enter and to reside in the suit property;
c. Pass a decree of declaration thereby declaring the title document of defendant i.e GPA, Agreement to Sell, Affidavit, receipt, possession letter, will all dated 23.06.2014 with respect to the suit property are null and void ab initio and all further documents which may have been executed by defendant on strength of the said documents dated 23.06.2014; d. Any other relief in the facts and circumstances of the present case may also be granted in favour of the plaintiff and against the defendants, in the interest of justice."
FACTUAL BACKROUND
2. Briefly stated, the plaintiffs are the LRs of late Kesho Ram and the plaintiffs No. 2, 4 & 5 executed a SPA in favour of the plaintiff No.1. It is further averred that, the suit property is the ancestral property of the plaintiffs and the plaintiffs are one of the co-sharers in the suit property situated in the extended Lal Dora of village Tajpur Khurd. New Delhi. Measuring about 195 sq. yards, out of Khata- khatoni No. 121 and khasra No.92, 95, 96, 191. It is further averred that, Sh. Kesho Ram who was the father of the plaintiffs expired on 28.03.2014 leaving behind the plaintiffs as his legal heirs. It is further averred that, after the death said Kesho Ram, the plaintiffs who are the co-sharers in the suit property becomes the owners of the suit property and prior to his death, Kesho Ram was the owner and possession of the suit property. It is further averred that, since prior to the death of Kesho Ram, the plaintiffs and their family members used to reside at village Parnala for the last more then 18 years, however they all used to visit the suit property i.e. Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 3 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:35 +0530 the ancestral property from time to time but due to some reason, the plaintiffs could not able to visit the suit property for about 1.5 years or so.
3. It is further averred that, in the month of March 2016, the plaintiffs came to know from some reliable sources that some construction is going on in the suit property. It is further averred that, the plaintiff No.1 visited the suit property and saw that the defendant and his family members were breaking/demolishing the old structure and raising further illegal construction in the suit property and when the plaintiff asked them about the illegal construction on his property, the defendant and his family members started abusing the plaintiffs and also threatened them for dire consequences and told that they have purchased the said property from someone and if the plaintiff or any of his family members ever visited the suit property, they will have to face dire consequences. It is further averred that, the plaintiff immediately made a call at 100 number, police came but nothing was done in this regard Thereafter the plaintiff No. 1 gave a written complaint in P.S. Chawla New Delhi on 03.03.2016 vide DD NO. 73 B and also gave a written complaint to the SDM, Kapashera, New Delhi on 04.03.2016.
4. It is further averred that, the suit property is the ancestral property of the plaintiffs and the plaintiffs being the legal heirs of Late Kesho Ram are the sole and absolute owners/co-sharers in the suit property but the defendants are adamant to grab the suit property and for the same they are doing illegal construction over the suit property. It is further averred that, all the belongings of the plaintiff's family lying in the suit property has also been removed from the suit property by the defendant and his family members. It is further averred that, due to the illegal acts and unlawful construction by the defendant, the plaintiffs had to suffer irreparable loss and injury. It is further Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 4 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:42 +0530 averred that, since all the efforts of the plaintiffs have been failed, the plaintiffs have left with no other efficacious remedy/option except to approach this Hon'ble court.
5. The summons of the suit were issued to the defendant Bittoo and written statement was filed on behalf of said defendant. However, vide order dt. 16.05.2016 Laxman Dass was impleaded as defendant in the array of the parties. Record reveals that, at later stage during trial amended plaint filed on behalf of the plaintiff mentioning Laxman Dass as sole defendant. But, Bittoo was never formally deleted from the array of parties. Separate written statements filed on behalf of both defendants are also on record.
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 1(BITTOO).
6. It is stated that plaintiffs have not approached the court with clean hands and have suppressed the true and material facts. It is further stated that the suit of the plaintiffs is bad for non-joinder and mis-joinder of necessary parties because the father of the defendant Sh. Laxman Dass is the absolute owner and in possession of the suit property having purchased the built up suit property from previous owner Sh. Mehar Singh Darall S/o Late Sh. Rishal Singh R/o VPO Hiran Kudna, Delhi-110041 on 23-6-2014 vide GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter and Will, the said Sh. Mehar Singh Darall had purchased the suit property from Sh Brijesh Kumar S/o Sh. Jagmohan Parkash R/o H.No. 1629-A/3, Gali Sahib Singh, Najafgarh, New Delhi-43 vide GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter, Will all dated 18-10-2012 and said Sh. Brijesh Kumar had purchased the suit property from Sh. Kesho Ram who was the father of plaintiff No. 1, 3, 4 & 5 and husband of plaintiff No. 2 vide GPA, Agreement Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 5 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:44 +0530 to Sell, Affidavit, Receipt, Possession Letter and Will all dated 2-8-2005 but the plaintiffs have not impleaded Sh. Laxman Dass as a party to the present suit, while on the other hand defendant herein has nothing to do with the suit property and he is residing in the suit property on license basis given by his father Sh. Laxman Dass, hence, the suit of the plaintiffs is not maintainable. It is further stated that the plaintiffs have not filed the correct site plan of the suit property and the defendant is filing the correct site plan of the suit property. It is further stated that, the plaintiffs have not correctly valued the suit property because the property is measuring approx. 177 Sq. Mtrs and as per circle rate of Rs. 20,000/-per Sq. Mtrs. and as per the circle rate the value of the suit property is more than Rs. 35,00,000/-. It is further stated that, Late Kesho Ram had sold the Suit Property on 2-8-2005 to Sh. Brijesh Kumar and who sold the same to Mehar Singh Darall and Mehar Singh Drall sold the same to father of the defendant. It is further stated that, at the time of death Late Sh. Kesho Ram was not the owner and in possession of the suit property and father of the defendant is/was the owner of the suit property and the plaintiffs had no right, title or interest in the suit property. It is also stated that, the electricity connection in the name of Kesho Ram since 1990 but he never paid the electricity bills and the arrears of bills always added in the bills of Laxman Dass. It is further stated that, after 2-8-2005 the plaintiffs or their father had no right, title or interest in the suit property and now the plaintiffs with ill intention to grab the suit property which only belongs to father of the defendant.
7. It is further stated that, after finding falsity in the complaints the police as well as SDM has not taken any action. It is further stated that, the plaintiffs are not having any documents in respect of the suit property and that the father of the defendant is the absolute owner of the suit property and Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 6 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:44 +0530 he may raise construction as per his desire. However, in the plaint the plaintiffs are mentioning that they are residing in Parnala since last 18 years and in complaint they are alleging that they are residing in Parnala since last 3 years. It is further averred that, when the father of the plaintiff had purchased the suit property from Mehar Singh Darall then he was handed over peaceful and vacant possession of the built up suit property and no articles were lying in the suit property. It is further averred that, the father of the defendant is the absolute owner and in possession of the suit property and he may raise construction as per his choice. n his reply on merits, defendant has denied all the contents of plaint.WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 2
(LAXMAN DASS).
8. It is stated in the WS filed by defendant no. 2 that plaintiffs have not come before this Hon'ble Court with clean hands and have suppressed the true and material facts from this Hon'ble Court and that the suit of the plaintiffs is gross misuse of process of law plaintiffs does not disclose any cause of action either in their favour or against the defendant, hence, in the absence of any cause of action, the suit of the plaintiffs is liable to be dismissed under the provisions of order VII Rule 11 of CPC with cost. It is further stated that, the suit of the plaintiffs bad for non-joinder and mis- joinder of necessary parties because the father of the defendant Sh. Laxman Dass is the absolute owner and in possession of the suit property having purchased the built up suit property from previous owner Sh. Mehar Singh Darall S/o Late Sh. Rishal Singh R/o VPO Hiran Kudna, Delhi-110041 on 23-6-2014 vide GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter and Will, the said Sh. Mehar Singh Darall had purchased the suit property from Sh Brijesh Kumar S/o Sh. Jagmohan Parkash R/o H.No. 1629-A/3, Gali Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 7 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:36 +0530 Sahib Singh, Najafgarh, New Delhi-43 vide GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter, Will all dated 18-10-2012 and said Sh. Brijesh Kumar had purchased the suit property from Sh. Kesho Ram who was the father of plaintiff No. 1, 3, 4 & 5 and husband of plaintiff No. 2 vide GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter and Will all dated 2-8-2005 and defendant is the absolute owner and in possession of the suit property. It is further stated that, the plaintiffs have not filed the correct site plan of the suit property and the defendant is filing the correct site plan of the suit property. It is further stated that, plaintiffs have not correctly valued the suit property because the property is measuring approx. 177 Sq. Mtrs and as per circle rate of Rs. 20,000/-per Sq. Mtrs. and as per the circle rate the value of the suit property is more than Rs. 35,00,000/-.
9. It is further stated that, affidavits filed in support of the suit as well as application are not verified as per Hon'ble High Court of Delhi Rules hence, both are liable to be rejected. It is further stated that, the suit of the plaintiffs is not maintainable in the eyes of law because on the basis of mutation, the ownership rights cannot be claimed, however, the plaintiffs have not given any notice to the defendant or other persons at the time of mutation and the properties mentioned in the Khata Khatoni has already been sold out by the father of plaintiffs No. 1, 3, 4 & 5. It is further stated that, at the time of death Late Sh. Kesho Ram was not the owner and in possession of the suit property and father of the defendant is/was the owner of the suit property and the plaintiffs had no right, title or interest in the suit property and that the electricity connection in the name of Kesho Ram since 1990 but he never paid the electricity bills and the arrears of bills always added in the bills of defendant. Hence, it is prayed on behalf of defendant that the suit of Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 8 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:43 +0530 the plaintiffs is not maintainable and the same is liable to be dismissed. In his reply on merits, defendant has denied all the contents of plaint.
10. Plaintiffs have filed replication to the written statement of defendants wherein they reaffirmed and reiterated the contents of their plaint and denied all the averments made in the written statement of defendants.
ISSUES
11. On the basis of pleadings of parties, vide order dated 18.10.2016 r/w 19.10.2024, following issues were framed/restructured:
i. Whether the suit is bad for non-joinder of necessary parties, in view of preliminary objection no. (4) of the written statement of the defendant? OPD ii. Whether the plaintiff has not filed the correct site plan, if so its effect?
OPD iii. Whether the suit has not been valued properly for the purpose of court fee, in view of preliminary objection no. (6) of the written statement of the defendant? OPD iv. Whether the plaint has not been verified as per the Delhi High Court Rule 1967, if so, its effect? OPD v. Whether the suit is not maintainable in view of the preliminary objection no. (8) of the written statement of the defendant? OPD vi. Whether the plaintiffs have no right, title or interest in the suit property? OPD vii. Whether plaintiff is entitled for decree of declaration thereby declaring title documents of defendant ie. GPA, agreement to sell, affidavit, receipt, possession letter and Will all dt. 23.06.2014 w.r.t. the suit property along with further documents if any, as null and void ab initio and not binding upon the plaintiff? OPP. viii. Whether the plaintiffs are entitled to the decree of possession as prayed for in prayer (a) of the plaint? OPP ix. Whether the plaintiffs are entitled to the decree of permanent injunction as prayed for in prayer (b) of the plaint? OPP x. Relief.
Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 9 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:33 +0530 EVIDENCE LED BY THE PLAINTIFF
12. In support of their case, plaintiff examined four witnesses.
Plaintiff/Roshan himself examined as PW1 and tendered his evidence by way of affidavit Ex. PW1/A and has relied upon following documents:
Sl. No. Particulars of Documents Exhibits/Mark
1. The SPA is Ex. PW1/1 Ex. PW1/1
2. The site plan of the suit property is Ex.PW1/2
3. Copy of the Khata-Khatoni of the year Mark PW1/3 2001-02 and 2013-14 (colly.)
4. Copy of the extended Lal Dora Certificate Ex.PW1/4. (OSR) issued in the name of Sh. Jai Ram S/o Sh.
Ganga Sahai
5. Copy of the death certificate of Late Sh. Ex.PW1/5 (OSR) Kesho Ram
6. The copy of the electricity bills in the name Mark PW1/6.
of deceased Kesho Ram
7. The original received copy of the complaint Ex.PW1/7 dated 03.03.2016
8. The original received copy of the complaint Ex.PW1/8 dated 04.03.2016
9. The photographs showing construction are Ex.PW1/9 (colly.) PW1 was cross-examined by Ld. Counsel for defendant at length and discharged.
13. PW2 Sh.Ram Singh Meena, Assistant Finance Officer, BSES, 220 Grid, Najafgarh, New Delhi was a summoned witness who brought the summoned record with respect to the electricity connection bearing CA No.102496375 which stands in the name of Sh.Kesho Ram son of Sh.Jai Ram, R/o-Pole No.22, Tajpur Khurd. New Delhi-110071. He has also brought the records with respect to the installation of electricity connection. Copy of Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 10 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:44 +0530 the application filed by Kesho Ram with our office along with the supporting documents is exhibited as Ex.PW-2/A (Colly). On the basis of this application, the electricity connection bearing CA No. 102496375 was installed. He further stated that as on date, as per their records, this connection stands in the name of Kesho Ram. Copy of bills and details of payment regarding electricity charges is collectively exhibited as Ex.PW-2/B (Colly). PW2 was not cross-examined by Ld. Counsel for defendant despite opportunity given.
14. PW-3 Sh. D.K.Bansal, Halqa Patwari, Office of SDM, Kapashera, New Delhi was a summoned witness who brought the summoned record i.e. Khasra Khautani of the year 2013-14. PW3 further stated that as per the records maintained in their office, the property measuring 1 bigha 19 biswas situated in Khasra No.92-95-96-191 in village Tajpur Khurd stands in the name of Sh. Singh Raj, Sh. Ram Singh, Sh. Mange Ram, Sh. Dharambir and Sh. Shishpal all sons of Indraj. All these five persons have 1/12 share in this land and Surender Sharma, Narender Sharma both sons of late Sh. Mahender Singh, Smt. Santosh, Smt. Manju both daughters of late Sh. Mahender Singh have 1/48 share in this land. Besides them Gulab Devi wife of late Sh. Kesho Ram, Roshan son of late Sh. Kesho Ram and Jaipal son of late Sh. Kesho Ram and Bijender son of late Sh. Kesho Ram have 1/12 share in this land. Mahesh Kumar late Sh. Kesho Ram and Roshni daughter of Sh. Kesho Ram have 1/12 share in this land. Copy of this Khasra Khautani is exhibited as Ex.PW-3/A. PW3 was not cross-examined by Ld. Counsel for defendant despite opportunity given.
15. PW-4 HC Constable Surender No.2584 DW, PS: Chhawla, New Delhi was a summoned witness who brought the summoned record i.e. DD Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 11 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:36 +0530 register containing entry pertaining to entry no.72 dated 03.03.2016. Vide this DD entry, a complaint filed by complainant Roshan son of Kesho Ram was received. Same was marked for enquiry to SI Gajender, copy of this DD entry is exhibited as Ex.PW-4/A (OSR). PW4 was cross-examined by Ld. Counsel for defendant and discharged.
16. Thereafter, plaintiff's evidence was closed and matter was fixed for DE.
17. In his defence, defendant has examined 3 witnesses. DW-1 Sh. Laxman Dass S/o. Late Sh. Ram Munim tendered his evidence by way of affidavit Ex.PW1/A and relied upon the following documents:
Sl. No. Particulars of Documents Exhibits/Mark
1. Copy of GPA, Agreement to sell, affidavit, Ex. DW1/1 (colly) receipt, possession letter and will dt. 02.08.2005 in favor of Sh. Brijesh Kumar
2. Copy of GPA, Agreement to sell, affidavit, Ex. DW1/2 (colly) receipt, possession letter and will dt.
18.10.2012 in favor of Sh. Mehar Singh Drall
3. Copy of GPA, Agreement to sell, affidavit, Ex. DW1/3 (colly) receipt, possession letter and will dt.
23.06.2016 in favor of Sh. Laxman Das (defendant)
4. Copy of Adhar Card of deponent Mark A (de-
exhibited as Ex.DW1/4)
5. Copy of electricity bill dt. 01.06.2016 Mark B (de-
issued by BSES of the suit property in favor exhibited as
of deponent Ex.DW1/5)
DW1 was cross-examined by Ld. Counsel for plaintiff at length and discharged.
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18. DW2 Sh. Om Prakash s/o Late Shish Pal tendered his evidence by way of affidavit Ex.PW2/A. DW2 was cross-examined by Ld. Counsel for plaintiff at length and discharged.
19. DW-3 Sh. Brijesh Kumar S/o Late Sh. Jag Mohan Prakash tendered his evidence by way of affidavit Ex.DW3/A. DW3 was cross-
examined by Ld. Counsel for plaintiff at length and discharged.
20. Thereafter, DE was closed and matter was listed for final arguments.
21. Arguments heard. Record perused.
SUBMISSIONS OF THE PARTIES
22. Ld. Counsel for plaintiff submitted that, plaintiffs are one of the co-sharers of the suit property and same was duly mutated in their name vide Ex.PW1/3. It is also submitted that, Late Sh. Kesho Ram was recorded khatedar in the suit property who left for heavenly abode on 28.03.2014 and after the demise of their father, plaintiffs mutated the suit property in their name. It is further submitted that, Late Sh. Kesho Ram and plaintiffs used to reside at village Tajpur for more than 18 years but, they regularly keep on visiting the suit property after regular intervals. However, in the month of March, 2016, plaintiffs came to know about trespass of the suit property by defendants and police complaint was immediately lodged. It is further submitted that, all documents as relied upon by defendants are forged and fabricated hence, has no value in the eyes of law. It is further submitted that, one electricity meter was also installed at the suit premises in the name of Sh. Kesho Ram which clearly shows that Late Sh. Kesho Ram was in possession of the suit property during his lifetime.
Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 13 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
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23. Per contra, Ld. Counsel for defendants vehemently opposed the claim made by the plaintiff. The contention of defendants is five fold. Firstly, present suit is barred by limitation as declaratory relief can be granted within three years while in the present case Late Sh. Kesho Ram transferred the suit property in favour of Sh. Brijesh Kumar who transferred it in the name of Sh. Mehar Singh in the year 2012 and finally same was transferred in favour of current defendant no. 1 in the year 2014 but, same was challenged belatedly that's too without any declaratory relief qua the previous chain of documents hence, relief sought cannot be granted. Secondly, plea of mutation as taken by the plaintiff cannot be accepted as no prior intimation or notice was given to defendant prior to said mutation and same was done by concealment of facts. Thirdly, even if GPA, ATS, affidavit etc. are not relied upon, Late Sh. Kesho Ram executed a Will in favour of subsequent buyer which is valid and subsisting. Fourthly, it is submitted that, plaintiffs failed to prove the electricity bill hence, cannot be stated to be in possession of the suit property. Lastly, defendants duly proved the entire chain of documents infact, examined DW3 in whose favour Late Sh. Kesho Ram transferred the property in the year 2005 who further deposed in conformity to the defence taken by defendants.
24. In rebuttal, Ld. Counsel for plaintiff submitted that previous chain need not to be specifically challenged once title documents of defendant itself challenged.
ISSUEWISE ANALYSIS & FINDING:
i. Whether the suit is bad for non-joinder of necessary parties, in view of preliminary objection no. (4) of the written statement of the defendant? OPD Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 14 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:42 +0530 ii. Whether the plaintiff has not filed the correct site plan, if so its effect?
OPD iii. Whether the suit has not been valued properly for the purpose of court fee, in view of preliminary objection no. (6) of the written statement of the defendant? OPD iv. Whether the plaint has not been verified as per the Delhi High Court Rule 1967, if so, its effect? OPD v. Whether the suit is not maintainable in view of the preliminary objection no. (8) of the written statement of the defendant? OPD
25. Before adjudication of above issues preliminary objections no. 4, 5, 6, 7 and 8 are reproduced here-in-below:
"4. That the suit of the plaintiffs is non-joinder and mis-joinder of necessary parties because defendant is the absolute owner and in possession of the suit property having purchased the built up suit property from previous owner Sh. Mehar Singh Darall S/o Late Sh. Rishal Singh R/o VPO Hiran Kudna, Delhi-110041 on 23-6-2014 vide GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter and Will, the said Sh. Mehar Singh Darall had purchased the suit property from Sh Brijesh Kumar S/o Sh. Jagmohan Parkash R/o H.No. 1629-A/3, Gali Sahib Singh, Najafgarh, New Delhi-43 vide GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter, Will all dated 18-10-2012 and said Sh. Brijesh Kumar had purchased the suit property from Sh. Kesho Ram who was the father of plaintiff No. 1, 3, 4 & 5 and husband of plaintiff No. 2 vide GPA, Agreement to Sell, Affidavit, Receipt, Possession Letter and Will all dated 2- 8-2005 and defendant is the absolute owner and in possession of the suit property, hence, the suit of the plaintiffs is not maintainable in the eyes of law and the same is liable to be dismissed with cost.
5. That the plaintiffs have not filed the correct site plan of the suit property and the defendant is filing the correct site plan of the suit property, hence, the suit of the plaintiffs is not maintainable and the same is liable to be dismissed with cost.
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6. That the plaintiffs have not correctly valued the suit property because the property is measuring approx. 177 Sq. Mtrs and as per circle rate of Rs. 20,000/-per Sq. Mtrs. and as per the circle rate the value of the suit property is more than Rs. 35,00,000/-, hence, the suit of the plaintiffs is not maintainable and the same is liable to be dismissed.
7. That the suit of the plaintiffs is not maintainable in the eyes of law as the affidavits in support of suit as well as well as application are not verified as per High Court Rules, hence, there is no affidavits in support of suit as well as application and both are liable to be rejected.
8. That the suit of the plaintiffs is not maintainable in the eyes of law because on the basis of mutation, the ownership rights cannot be claimed, however, the plaintiffs have not given any notice to the defendant or other persons at the time of mutation and the properties mentioned in the Khata Khatoni has already been sold out by the father of plaintiffs No. 1, 3, 4 & 5."
Issue No. 1: Whether the suit is bad for non-joinder of necessary parties, in view of preliminary objection no. (4) of the written statement of the defendant? OPD
26. It is well settled law that, no suit shall be defeated by reason of misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.1
27. Hon'ble Supreme Court of India in the matter of Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited and Others2 held as follows:
19. Misjoinder and non-joinder.--No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it.
[Provided that nothing in this rule shall apply to non-joinder of a necessary party.] 2 AIR 2010 SUPREME COURT 3109 Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 16 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
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8. The general rule in regard to impleadment of parties is that the plaintiff in a suit, being dominus litis, may choose the persons against whom he wishes to litigate and cannot be compelled to sue a person against whom he does not seek any relief. Consequently, a person who is not a party has no right to be impleaded against the wishes of the plaintiff. But this general rule is subject to the provisions of Order I Rule 10(2) of Code of Civil Procedure (`Code' for short), which provides for impleadment of proper or necessary parties. The said sub-rule is extracted below:
"Court may strike out or add parties. (2) The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added."
28. Onus of issue no. 1 was upon defendant. In his WS, defendant claimed absolute ownership and possession qua the suit property having purchased the same from erstwhile owner Sh. Mehar Singh who in turn had purchased the same from Sh. Brijesh Kumar vide GPA, ATS, affidavit, receipt, possession letter and Will dt. 18.10.2012. It is the contention of the defendant that Sh. Brijesh Kumar had purchased the suit premises from Late Sh. Kesho Ram who is father of plaintiff no. 1, 3, 4 and 5 and husband of defendant no. 2 vide GPA, ATS, affidavit, receipt, possession letter and Will dt. 02.08.2005 but no submissions made w.r.t. detail of the party who is non- joinder and how the suit is liable to be dismissed in case the said party is not joined to the present proceedings hence, present issue is decided against the defendant and in favour of plaintiff.
Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 17 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:39 +0530 Issue No. 2: Whether the plaintiff has not filed the correct site plan, if so its effect? OPD
29. Except making bald averments w.r.t the site plan as filed on behalf of the plaintiff no material placed on record by defendant to prove his contention. In its plaint, pleaded suit property is admeasuring 195 sq. yards out of Khasra Khatoni 121 & Khasra no. 92, 95, 96, 191. But, in WS defendant submitted that plaintiff has not filed correct site plan. Comparative analysis of Site plans as filed on behalf of the plaintiff and defendant is reproduced here-in-below:
PLAINTIFF'S SITE PLAN DEFENDANT'S SITE PLAN
30. In his WS, defendant claimed the suit property as 177 sq. metres (i.e. 211.69 sq. yards) but, perusal of above site plan reveals that said property is of 192.5 sq. yards (i.e. 77x22.5=1732.5 sq. feet) while plaintiff Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 18 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:39 +0530 claimed the suit property as 195 sq. yards i.e. equivalent to the description of plot given in the site plan i.e. Ex.PW1/2 (20x88=1760 sq. feet) i.e. equivalent to 195.5 sq. yards. Thus, defendants failed to produce any material on record in support of their contentions. Hence, this issue is decided in favour of plaintiff and against defendants.
Issue No. 3: Whether the suit has not been valued properly for the purpose of court fee, in view of preliminary objection no. (6) of the written statement of the defendant? OPD Issue No. 4: Whether the plaint has not been verified as per the Delhi High Court Rule 1967, if so, its effect? OPD
31. It settled law that, in all suits wherein declaratory relief or/and possession is sought, plaintiff shall state the amount at which he values the relief sought. In present matter, plaintiff valued the suit as follows:
S.No. Prayer sought Valuation Court fees
1. Towards the relief of possession ₹23,40,000 ₹25,182
2. Towards relief of injunction ₹200 ₹20
3. Towards relief of Declaration ₹200 ₹20 Total Court ₹25,222 fee
32. Onus of incorrect valuation or payment of deficient court fees was upon defendant but, no material produced on record to conflict above valuation. Thus, in the considered opinion of this court plaintiff has paid ad valorem court fees. Further in his WS, defendant also objected non- compliance of Hon'ble High Court of Delhi Rules. However, this issue neither pressed upon nor argued on behalf of the defendant. Even otherwise, amended plaint does not show any violation of Hon'ble Delhi High Court Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 19 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:35 +0530 Rules. Hence, above issues are decided in favour of plaintiff and against defendant.
Issue No. 5: Whether the suit is not maintainable in view of the preliminary objection no. (8) of the written statement of the defendant? OPD
33. It is the contention of the defendant that ownership right cannot be claimed on the basis of mutation and since no notice of mutation was given to the defendant, same cannot be considered. However, this court is not inclined to accept the plea taken by the defendant mainly on three grounds. Firstly, PW3 i.e. Halka Patwari from Office of SDM, Kapashera duly proved the Khata Khatoni for the year 2013-14 but no cross-examination of PW3 was done by defendant despite opportunity. Secondly, as per their own averment, defendants were aware about the mutation order dt. 28.02.2015 but, till date same has not been challenged before any authority or court of law. Thirdly, PW3 specifically deposed that the plaintiffs have 1/3rd share in the land hence, title of the plaintiffs duly proved by the PW3 which is in corroboration with the land record as produced by witness. Hence, this issue is decided in favour of plaintiff and against defendants.
Issue no. 6: Whether the plaintiffs have no right, title or interest in the suit property? OPD Issue no. 7: Whether plaintiff is entitled for decree of declaration thereby declaring title documents of defendant ie. GPA, agreement to sell, affidavit, receipt, possession letter and Will all dt. 23.06.2014 w.r.t. the suit property along with further documents if any, as null and void ab initio and not binding upon the plaintiff? OPP.
34. Above issues are interlinked hence, taken simultaneously.
Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 20 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:42 +0530
35. Before going ahead, it is imperative to refer the law for Declaration.
36. Section 34, Specific Relief Act3 provides that a suit against any person denying or interested to deny the plaintiffs' title to the legal character or right to any property can be filed. To obtain the relief of declaration the plaintiff must establish that (1) the plaintiff was at the time of the suit entitled to any legal character or any right to any property (ii) the defendant had denied or was interested in denying the character or the title of the plaintiff/Non counter claimant, (iii) the declaration asked for was a declaration that the plaintiff was entitled to a legal character or to a right to property (iv) the plaintiff was not in a position to claim a further relief than a bare declaration of his title. It is a discretionary relief.
37. Hon'ble Supreme Court of India in Deccan Paper Mills Co. Ltd. V Regency Mahavir Properties, Civil Appeal No 5147 of 2016 observed that document though not necessary to be set aside may, if left outstanding, be a source of potential mischief. The jurisdiction under section 39 of the Specific Relief Act, 1877 (which is the pari materia provision to section 31 of the 1963 Act) is a protective or a preventive one. It is to prevent a document to remain as a menace and danger to the party against whom under different circumstances it might have operated.
334. Discretion of court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 21 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:34 +0530
38. Similarly, in Suhrid Singh V Randhir Singh, (2010) 12 SCC 112, Hon'ble Supreme Court held that where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. In Deccan Paper Mills Co. Ltd (supra), it was observed that the expression "any person" does not include a third party, but is restricted to a party to the written instrument or any person who can bind such party. It was further observed as under:
"The incongruous result of section 31 of the Specific Relief Act being held to be an in rem provision. When it comes to cancellation of a deed by an executant to the document, such person can approach the Court under section 31, but when it comes to cancellation of a deed by a non-executant, the non- executant must approach the Court under section 34 of the Specific Relief Act, 1963. Cancellation of the very same deed, therefore, by a non-executant would be an action in personam since a suit has to be filed under section 34. However, cancellation of the same deed by an executant of the deed, being under section 31, would somehow convert the suit into a suit being in rem."
39. Since, defendant is relying upon notarized GPA, agreement to sell, affidavit, receipt, possession letter and Will as chain of documents, it is imperative to discuss law on transfer of the suit property by way of GPA.
40. In Suraj Lamp Industries Pvt. Ltd. Vs. State of Haryana (2012 SCC 656) Hon'ble supreme Court of India specifically hold that, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank4 , that the "concept of power of attorney sales 4 94 (2001) DLT 841.
Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 22 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:40 +0530 have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
41. Thus, judgment in Suraj Lamp (supra) reaffirms an important legal position i.e. It "Sale" is a transfer of ownership in exchange for a price paid or promised and said transfer can be made only a registered instrument 5 and indispensability of registering a sale deed during transfer. In fact in Shakeel Ahmed vs Syed Akhlaq Hussain6, Hon'ble Supreme Court further held that:
'10. Having considered the submissions at the outset, it is to be emphasized that irrespective of what was decided in the case of Suraj Lamps and Industries(supra) the fact remains that no title could be transferred with respect to immovable properties on the basis of an unregistered Agreement to Sell or on the basis of an unregistered General Power of Attorney. The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any right, much less a legally enforceable right to approach a Court of Law on its basis. Even if these documents i.e. the Agreement to Sell and the Power of Attorney were registered, still it could not be said that the Respondent would have acquired title over the property in question. At best, on the basis of the registered agreement to sell, he could have claimed relief of specific performance in appropriate proceedings. In this regard, reference may be made to Sections 17 and 49 of the 5 Section 54, Transfer of Property Act.6
MANU/SC/1257/2023 Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 23 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:45 +0530 Registration Act and Section 54 of the Transfer of Property Act, 1882.
11. Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Even the judgment of this Court in the case of Suraj Lamps & Industries (supra) lays down the same proposition. Reference may also be made to the following judgments of this Court:
(i). Ameer Minhaj v. Deirdre Elizabeth (Wright) Issar and Ors.
MANU/SC/0685/2018 : 2018:INSC:578 : (2018) 7 SCC 639
(ii). Balram Singh v. Kelo Devi MANU/SC/1241/2022 :
2022:INSC:10111
(iii). M/S Paul Rubber Industries Private Limited v. Amit Chand Mitra and Anr. MANU/SC/1051/2023 : 2023:INSC:8542
12. The embargo put on registration of documents would not override the statutory provision so as to confer title on the basis of unregistered documents with respect to immovable property.
Once this is the settled position, the Respondent could not have maintained the suit for possession and mesne profits against the Appellant, who was admittedly in possession of the property in question whether as an owner or a licensee.'
42. In Shakeel (Supra), Hon'ble Supreme Court specifically hold that, the ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Thus, in view of the above authoritative judgment juxtaposed with the facts of the present case, notarized GPA, ATS, Affidavit etc. as relied upon by defendants cannot be considered in evidence as title documents.
43. Even otherwise, after careful perusal of entire material placed on record, this court is not inclined to accept the plea taken by defendants mainly for two reasons. Firstly, even if it is presumed that, Late Sh. Kesho Ram transferred the right, title and interest to Sh. Brijesh Kumar on Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 24 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:39 +0530 02.08.2005 but, no plausible explanation is given by defendants that why the land records not updated by Sh. Brijesh Kumar or any other subsequent buyer till date. Secondly, except above GPA, no material placed on record to show possession of the defendant or any other earlier chain owner w.r.t. the suit property. Only documents i.e. electricity bill does not corroborate the defence given by defendant. Further, in his defence, defendants produced as much as 3 witnesses but same are not in consonance with the defence taken by the defendants rather, contradictory in itself.
44. DW1/defendant no. 1 in his evidence by way of affidavit Ex.DW1/A specifically stated that 'at the time of death of Late Sh. Kesho Ram was not the owner and in possession of the suit property and father of deponent is/was the owner of the suit property' which, demolished the case of defendants as Late Sh. Kesho Ram stated to left for heavenly abode on 28.03.2014 while defendants stated to have purchase the suit property on 23.06.2014. Further, in his testimony defendant/DW1 duly admitted the existence of electricity meter in the name of Late Sh. Kesho Ram since 1990 but took the defence that bill was never paid. Relevant cross-examination of DW1 is reproduced here-in-below"
Cross- examination of DW1:
I am 4th class pass. I can understand Hindi language only. I am not aware about the contents of my affidavit Ex. DW1/A. Again said. I am aware about the contents of my said affidavit. I am residing at the aforesaid address i.e. Khasra no. 92 since 2014. I am residing in the village Tajpur Khurd since 1984. Since 1984 to 2014 I was residing in my other property in the same village. The village Tajpur khurd consists one Khasra no. 92. I was residing in my flour mill. I am aware of the documents which have been filed on court record pertaining to suit property. I was not doing any job in 2014, however, my son is working in feeder Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 25 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:36 +0530 shop. My son namely Ajay Kumar is residing with me. I am not aware about my family income in 2014. I never met with the children of late Sh. Kesho Ram. I take immediate possession of the suit property after its purchase. I purchased the suit property from Sh. Mehar Singh Darall for a consideration of Rs. 24, 70,000/-. However, I do not remember the mode of payment that how much I paid by way of cash and by way of cheque. I can produce the details of the said payment, if required. I do not remember how much income was of myself and my son in 2014. I am not maintaining any bank account. I was/am not an income tax assessee. I had obtained the cheque from one Pappu s/o Rajje, r/o village Tajpur Khurd and the said cheque was given towards purchase of the suit property. It was only one cheque and what was the amount of the said cheque I do not remember. I had received the said cheque in lieu of sale of some property. The said property which I had sold to him was from where I was running my aata chakki. I cannot produce the sale purchase documents of the said property. It is wrong to suggest that I have not sold any such property and that is why I am unable to produce any document in this regard. It is wrong to suggest that I have not received any cheque from said Pappu. The sale documents of suit property were got prepared at Najafgarh. I do not remember the name of the Notary Public who had attested the said documents. I am aware of the names of the previous owners of the suit property. It is wrong to suggest that all the documents pertaining to suit property are forged and fabricated. It is wrong to suggest that no sale consideration passed in respect of purchase of suit property. I had not received any payment from my son to purchase the suit property. I do not remember when the draftsman had visited the suit property to prepare the site plan. It is wrong to suggest that the site plan Ex. DW1/6 is not as per site or that no draftsman visited the suit property. It is wrong to suggest that witnesses cited in the sale documents qua the suit property are the fictitious persons.
I know the plaintiff who is present in the court and I also know his father late Sh. Kesho Ram. I had no talks with the plaintiff Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 26 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:45 +0530 regarding purchase of the suit property. I know that the plaintiff is not residing in the village Tajpur Khurd since 2002.
45. Apart from himself, defendant got testified DW2 being permanent r/o Village Tajpur and claimed to have knowledge about consolidation proceedings in the year 1969-1970 but during cross-
examination, DW2 deviated from his testimony and deposed not having any knowledge about the contents of consolidation proceedings or sale transactions between the parties to the suit. Relevant cross-examination of DW1 is reproduced here-in-below"
Cross- examination of DW2:
"I am 10th pass. I am aged about 35 years. I am fully aware about the contents of my affidavit. The said affidavit was prepared by counsel for defendant about one month back. Vol., prior to the last date of hearing. Plaintiff is the grandson of my grandfather's brother. I met with the plaintiff about four year back at Jodhpur temple. I wishes him at that place. Presently, we have no communication terms with plaintiff. Our grandparents were having some disputes with plaintiff's family. Vol., we have no dispute with plaintiff. It is wrong to suggest that we have litigation history with plaintiff's family. I am not aware about the contents of para no.3 of my affidavit as I was not even born at that time. I am not aware about my exact date of birth. I have not seen any sale transaction document executed between plaintiff and defendant. Plaintiff family have left Tajpur village about 20 years back. It is wrong to suggest that I have come to depose before this court due to old dispute with the plaintiff family. It is wrong to suggest that I am deposing falsely."
(emphasis is mine) Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 27 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:38 +0530
46. Interestingly, defendant also examined Sh. Brijesh Kumar who claimed to be the purchaser of the suit property from Late Sh. Kesho Ram as DW3. But, during cross-examination he failed to produce any documents/material in support of his contentions. Hence, these issues are also decided in favour of plaintiff and against defendant.
Issue no. 8: Whether the plaintiffs are entitled to the decree of possession as prayed for in prayer (a) of the plaint? OPP Issue no. 9: Whether the plaintiffs are entitled to the decree of permanent injunction as prayed for in prayer (b) of the plaint? OPP
47. Above issues are interlinked hence, taken simultaneously.
48. In view of aforesaid discussion, present issues are also decided in favour of plaintiff and accordingly decree of possession qua the property situated in the extended Lal Dora of village Tajpur Khurd, New Delhi, measuring about 195 sq. yards, out of khata-khatoni no. 121 and Khasra no. 92, 95, 95, 191 as shown in site plan annexed with the plaint, passed in favour of plaintiffs and against the defendant. Further, decree of permanent injunction is also passed in favour of plaintiff and against the defendant.
Issue No. 10: Relief (CONCLUSION)
49. In the light of above discussion and findings, in the considered opinion of this court, documents produced by defendant invite no confidence hence, present suit stands decreed in favour of plaintiffs in following terms:
a) decree of declaration passed in favour of plaintiff thereby declaring title documents of defendant ie. GPA, agreement to sell, affidavit, receipt, possession letter and Will all dt. 23.06.2014 w.r.t. the suit property along with further documents if any, as null and void ab initio and not binding upon the plaintiffs.
Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 28 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
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b) Decree of possession qua the property situated in the extended Lal Dora of village Tajpur Khurd, New Delhi, measuring about 195 sq. yards, out of khata-khatoni no. 121 and Khasra no. 92, 95, 95, 191 as shown in site plan annexed with the plaint, passed in favour of plaintiffs and against the defendant.
c) Decree of permanent injunction passed in favour of plaintiff and against the defendant.
d) Parties shall bear their own cost.
50. Decree sheet be prepared accordingly.
51. File be consigned to Records after due compliance.
Announced in open court on 26.03.2025 (SHILPI M JAIN) District Judge-05, South West District Dwarka Courts, New Delhi Digitally CS DJ ADJ No. 16229/2016 Roshan vs. Laxman No. 29 of 29 signed by SHILPI M SHILPI JAIN M JAIN Date:
2025.03.26 16:16:40 +0530