Delhi District Court
Mehar Singh vs State on 6 December, 2024
IN THE COURT OF MS. MANU VEDWAN,
DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 461/2016
CNR No. DLNE01-002677-2016
1. Mehar Singh
2. Kartar Singh
3. Ram Kumar
All sons of Late Mangat Singh
R/o residents of K-276, Main Chowk,
Karawal Nagar, Delhi. .....Plaintiffs
Versus
1. State of National Capital Territory of Delhi
Shamnath Marg, Delhi
(service to be effected through
Lt. Governor of Delhi)
2. Gaon Sabha Village Karawal Nagar, Delhi
(service to be effected through
Block Development Officer, Nand Nagri, Delhi). ..... Defendants
Date of Institution : 24.04.2015
Date of Reserving Judgment : 04.12.2024
Date of Judgment : 06.12.2024
JUDGMENT
1. The present suit has been filed by the plaintiffs against the defendants seeking the decree of permanent injunction.
Plaint CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 1 of 262(a). Brief facts, as stated in the plaint are that the plaintiffs alongwith their father, Late Mangat Singh and grandfather Late Ghasi Ram, had been living in village, Karawal Nagar, Delhi since birth. It is stated that the plaintiffs had been in physical possession of land having Khasra number 37/18/1, (earlier Khasra number 1134), ad-measuring 1 bigha and 12 biswa (hereinafter referred to as suit property). It is stated that the grandfather of plaintiffs, Late Ghasi Ram, had died in the year 1975 and father of plaintiffs, Late Mangat Singh, had died in the year 1991. It is further stated that Late Ghasi Ram, in the year 1959-60, had filed a suit for declaration that the land bearing Khasra numbers 1131, 1134, 1157 and 1133 at village, Karawal Nagar, Delhi did not vest in the Gaon Sabha and plaintiffs were entitled to Bhumidari rights under section 13 (1) of Delhi Land Reforms Act. It is further stated that the said suit was decreed in respect of Khasra number 1157, 1133 and 1134. It is further stated that thereafter in the year 1968 and 1969, consolidation of the properties was done and Khasra number 1133, 1134 and 1157 were remarked as 37/12/2, 38/18/1 and 37/13 respectively. It is further stated that the plaintiffs have been in continuous and peaceful possession of the abovesaid properties since birth. It is further stated that the plaintiff number 1 has been cultivating and has been in sole and exclusive possession of land bearing Khasra number 37/18/1 (earlier Khasra number 1134) ad-measuring 1 bigha and 12 biswa. Plaintiffs had also built a boundary wall around the said property. It is further stated that the order and decree passed by Learned Judge, Delhi in suit bearing number 313/1962 filed by the grandfather of plaintiffs had attained finality as no revision or appeal was preferred against that order. 2(b). It is further stated that on 26.03.2015, some officers of defendant number 1 had tried to damage the boundary wall of property. It is further stated that the plaintiffs had written to the appropriate authorities, on CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 2 of 2626.03.2015 that the orders passed by Learned Judge, Delhi be obeyed and the plaintiffs' possession may not be altered with. It is further stated that the defendants had started fencing certain areas and had been orally threatening the plaintiffs to dispossess them. It is the apprehension of the plaintiffs that the defendants may dispossess the plaintiffs from the property in their possession. It is further stated that the plaintiffs are in continuous peaceful enjoyment of the suit property and they cannot be dispossessed by any process of law inasmuch as the suit of the grandfather of plaintiffs was decreed in the year 1962. The said order had already attained finality as under the provisions of Delhi Land Reforms Act, no proceedings could be brought after three years. It is further stated that later on, in other proceedings, Gaon Sabha sought to take possession of the land in question on the ground that the plaintiffs are not the bhumidar. However, the order in that regard was set aside by the Financial Commissioner, on 10.09.1997. It is further stated that till date, no action was taken by the Gaon Sabha and no notice was served upon by the plaintiffs by the Gaon Sabha regarding any proceedings pending in Delhi Land Reform Act. It is further stated that the plaintiffs had also filed proceedings under section 85 of the Delhi Land Reforms Act for declaration of their Bhumidari right over the suit property. It is therefore requested that a decree of permanent injunction be passed in favour of plaintiffs and against the defendants.
Written statement 3(a). On the other hand, in the common written statement filed by defendants bearing number 1 and 2 apart from denying the contentions of plaint, it is stated, that the plaintiffs are the land grabbers and are wrongly projecting/claiming themselves as tenure holders/owners of the suit CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 3 of 26property. In fact, the suit property belongs to Gaon Sabha/revenue Estate, Karawal Nagar, Delhi. It is further stated that in the year 2002, Mangal Sain and his three brothers, all sons of Ghasi Ram (grandfather of plaintiffs herein) claimed to be in physical possession of suit property that is Khasra number 37/18/1 (min) (1-12) and filed the bogus, frivolous and vexatious Civil Suit bearing CS(OS) 816/2002 titled as Mangal Sain & Ors. vs. Gram Sabha. It is stated that an order, dated 22.08.2012, was passed by Learned Predecessor Court in which it was observed that the parties would be bound by the decision taken by the concerned authority acting under the Delhi Land Reforms Act, 1954. Though, the directions were given that the plaintiffs, namely, Mangal Sain, Jagat Singh, Brahm Singh and Ram Bharose (all sons of Ghasi Ram) would not be dispossessed except by due process of law that is till the conclusion of proceedings under the Delhi Land Reforms Act, 1954. It is further stated that later on, the proceedings of ejectment under section 86-A of Delhi Land Revenue Act, 1954 were initiated against the aforesaid Mangal Sain and others. 3(b). It is further stated that, on 04.03.2015, an order bearing number 5110, pertaining to the Gaon Sabha land qua ejectment was passed, wherein, it was held that Mangal Sain and others had illegally occupied and unauthorisedly encroached upon Gaon Sabha land measuring 1 bigha 12 biswa bearing Khasra number 37/18/1 (min). It was observed in that order that Mangal Sain and others had unauthorizedly built the rooms on the land and thus Mangal Sain and others were directed to be ejected from the said suit land. It is further stated that the warrants of possession, dated 23.04.2015, bearing number 49/86-A/RA/SDM/KN/2002/5378 regarding the said Gaon Sabha land in question were issued. It is further stated that the present plaintiffs with malafide intentions in collusion with the earlier plaintiffs that are Mangal Sain and others, in CS(OS) number 816/2002, CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 4 of 26had filed the instant bogus and frivolous suit to thwart the ejectment order, dated 04.03.2015. It is further stated that the plaintiffs deliberately and wilfully did not disclose about the said ejectment orders in the instant case. It is further stated that the present suit is barred by the provisions of section 11 of the Civil Procedure Code, 1908 and issue raised here had already been decided by the competent Court, having a jurisdiction to entertain plea under the Delhi Land Reforms Act, 1954. It is further stated that the land in question vests in Gaon Sabha and the plaintiffs are not entitled to Bhumidari rights as alleged. The land in question as per the Revenue Record pertains to Gaon Sabha/Revenue Estate, Karawal Nagar, Delhi that is public land/government land.
3(c). It is further stated that Dev Dutt Sharma and others had filed a suit before the Court of Revenue Assistant/Sub Divisional Magistrate, Seelampur, in the year 1999 against Mangal Sain and others under section 81/84/86 A of the Delhi Land Reforms Act, 1954 for ejectment qua illegal occupancy, illegal possession over the suit land which according to them is public land. Thereafter, the said matter was transferred to the Revenue Assistant, Karawal Nagar, Delhi and the same was adjudicated by the concerned Revenue Assistant/Sub Divisional Magistrate, Karawal Nagar, Delhi under the provisions of Delhi Land Reforms Act, 1954. It is stated that an appropriate order, dated 04.03.2015 was passed in which it was held that Mangal Sain and others had illegally occupied and did unauthorized encroachment over Gaon Sabha land measuring 1 bigha 12 biswa, bearing, Khasra number 37/18/1 (min), and built the rooms over it. It is further stated that the suit land in question was always Gaon Sabha public land and now it has become abundantly clear after the ejectment order, dated 04.03.2015, passed by the Revenue Assistant/Sub Divisional Magistrate, Karawal Nagar, Delhi that the land in Khasra bearing number CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 5 of 2637/18/1 (min), ad-measuring 1 bigha 12 biswa is Gaon Sabha land. It is therefore requested that the suit of plaintiffs be dismissed.
Replication
4. Replication to the written statement of defendants was filed by plaintiff which is essentially a reiteration of the averments in the plaint and denial of contentions in the written statement.
Issues
5. On the basis of pleadings, the following issues were framed:-
(i) Whether the simple suit of injunction without claiming any other relief is not maintainable and is barred under section 38 & 39 of the Specific Relief Act? OPD
(ii) Whether the plaintiffs are the encroacher of the government land and if so, it's consequences? OPD
(iii) Whether the valuation of the suit as given in the plaint is improper? OPD
(iv) Whether the Civil Court has no jurisdiction to decide the matter due to bar of section 185 of Delhi Land Reforms Act? OPD
(v) Whether the suit is barred under section 11 of the Code of Civil Procedure due to res judicata? OPD
(vi) Whether the plaintiff is entitled to the relief of permanent injunction as claimed in the suit? OPP
(iv) Relief.
Plaintiff's evidence CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 6 of 266(a). Thereafter, plaintiffs have led their piece of evidence. Plaintiff number 1 Sh. Mehar Singh had got himself examined as PW1. He reiterated the facts as are mentioned by him in his plaint. Thereafter, he tendered his evidence by way of affidavit which is Ex.PW1/A and relied upon the documents that is site plan as Ex.PW1/1, copy of order, judgment and decree, dated 04.08.1962, bearing CS number 313/62 as Ex.PW1/2 (colly), copy of order of Finance Commissioner of Delhi in case bearing number 394/1976 second appeal under section 86 of Delhi Land Revenue Act, 1954, dated 19.09.1977 as Ex.PW1/3, copy of complaint, dated 27.03.2015 to the Station House Officer of Police Station Karawal Nagar, Delhi, Deputy Commissioner of Police and Commissioner of Delhi Police as Ex.PW1/4, receipt of speed post, dated 27.032015 as Ex.PW1/5 (colly), copy of report of Patwari as Ex.PW1/6, photographs of property as mark A1 to A4.
PW1 was cross examined at length by Learned counsel for defendants. During the course of his cross examination, PW1 submitted that the suit land is ancestral property, but, he had to see the title documents of the same. PW1 further submitted that the suit property is not in his possession as on date. Thereafter, PW1 could not produce the documents as undertaken by him on his earlier stage of cross examination that are title documents of the suit property as well as proof of cultivation of suit property. PW1 further submitted that he had no knowledge about the order passed in the proceedings under section 86A of the Delhi Land Reforms Act for eviction of his uncle and others from the suit property. 6(b). Sh. Harender, Kanoongo from the office of Tehsildar, Head Quarter, Tis Hazari Court Compound, Delhi was examined as PW2. PW2 produced the summoned record that is Register Karyawahi Chakbandi of Village Karawal Nagar pertaining to Khasra number 37/18/1 having old Khasra CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 7 of 26number 1134. Copy of same is Ex.PW2/A. 6(c). Constable Laxmi Kant from Police Station Karawal Nagar was examined as PW3. PW3 produced the summoned record that is complaint register showing the entry of the complaint made by plaintiff Sh. Mehar Singh. The copy of page containing relevant entry at point A is Ex.PW3/A. 6(d). Sh. Hukam Raj, Head Clerk, Financial Commissioner Court, 5 Shamnath Marg, Delhi was examined as PW4. PW4 deposed that he is the summoned witness. PW4 produced the original record that is original order, dated 19.09.1977, passed by Sh. R.C. Arora, the then Financial Commissioner in case number 324/76 titled as Sh. Mangat & Ors. vs. Gram Sabha, Karawal Nagar, Delhi. PW4 after seeing the certified copy of order Ex.PW1/3, deposed that the same is correct as per the original.
PW4 was cross examined at length by Learned Counsel for defendant. During the course of his cross examination, PW4 submitted that he himself maintained the file of the office. As per the ordersheet, dated 19.09.1977, the legal heirs, namely, Mangat Singh, Ram Bharosey, Mangal Sain, Jagat Singh and Brahm Singh were impleaded in place of deceased Ghasi S/o Sh. Fatwa, who was the original appellant of the case. 6(e). Sh. Narender Kumar, Field Inspector/Kanoongo, Revenue Record Room, Tis Hazari Court, Delhi was examined as PW5. PW5 produced the register 'Karyawahi Chakbandi' of Village Karawal Nagar relating to Khasra number 1134 (old number) and new number of the same is 37/18/1. Copy of same is already exhibited as Ex.PW2/A. PW5 was cross examined at length by Learned Counsel for defendant wherein he submitted that he did not know who had prepared the record and when it was prepared. 6(f). Sh. D.K. Bansal, Patwari, Sub Divisional Magistrate Office, Karawal Nagar, North East District, Delhi was examined as PW6. PW6 produced the summoned record of file number CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 8 of 26F-49/86A/RA/SDM/Karawal Nagar/2002 titled as Dev Dutt Sharma vs. Mangal Sain & Ors. PW6 deposed that there was one photocopy of the typed report given by Patwari consisting of single page in Hindi language. The name of the Patwari was not clear, who had given the report and there was no date mentioned in the report. PW6 further submitted that he had seen the photocopy of the report Ex.PW1/6 which is the same and according the record produce, original of the same was not in their record. 6(g). Sh. Giri Raj Singh, Patwari from the office of Sub Divisional Magistrate, Karawal Nagar, North East District, Karawal Nagar, Delhi was examined as PW7. PW7 deposed that the summoned record in respect of the original report, dated 30.11.1983 of the then Patwari Sh. Aadu Ram was not available in the office of Sub Divisional Magistrate, Karawal Nagar. PW7 had filed his report in that regard as Ex.PW7/A bearing his signature at point A. Defendants' evidence 7(a). After closing of plaintiff's evidence, defendants have led their piece of evidence. Sh. Sanjay Jha, Block Development Officer in the office of defendant number 2 was examined as DW1. DW1 has reiterated the same facts as are mentioned by the defendants in their common written statement. Thereafter, he tendered his evidence by way of affidavit which is Ex.DW1/A and relied upon the following documents i.e. revenue records such as Khatauni, Khasra girdawari. Ax Sizra,Field Book, Chakbandi, et cetera of the property as DW1/1 (Colly), report dated 21.05.2015, of Sh. Rajesh Dhawal, Tehsildar, Karawal Nagar, Delhi alongwith the site plan of the concerned property as DW1/2 (colly), order, dated 14.08.2015 of GNCTD showing market rates of the properties as DW1/3 (colly), copy of case file i.e. plaint, written statement, etc of the CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 9 of 26matter titled as Mangal Sain & Ors. vs. Gram Sabha, CS (OS) No. 816/2002 as DW1/4 (colly), copy of the case file of the matter titled as Dev Dutt Sharma & Ors vs. Mangal Sain & Ors, under the Delhi Land Reforms Act, 1963 as DW1/5 (colly), copy of appeal under section 185 (3) of Delhi Land Reforms Act titled as Mangal Sain & Anr. vs. Dev Dutt Sharma & Ors. As DW1/6 (colly) and copy of the complaint under section 133 of the Code of Criminal Procedure filed by Sh. Kanwal Singh against Sh. Ravinder Kumar & Ors as DW1/6.
DW1 was cross examined at length by Learned Counsel for plaintiff. During the course of his cross examination, DW1 submitted that the affidavit was submitted after going through the record available in BDO office. DW1 further submitted that it was not the duty of the BDO office to make the entry in the revenue record and it is the duty pertains to the Tehsildar. DW1 denied the suggestion put to him by Learned Counsel for plaintiff that the present suit is not maintainable as plaintiff was not the party in the ejectment proceedings initiated under section 86A of the Delhi Land Revenue Act by/on behalf of Revenue Assistant.
Arguments I have heard the arguments advanced on behalf of parties and perused the case file carefully.
Written submissions on behalf of plaintiffs 8(a). Written submissions have been filed on behalf of plaintiffs in which once again contents of plaint as well as testimonies of plaintiffs' witnesses have been reiterated. Apart from this, it is stated that the plaintiffs had filed the present suit for permanent injunction as the officials of defendant number 2 had illegally and unauthorizedly tried to damage the boundary wall of the suit property which is in possession of the plaintiffs and other CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 10 of 26successor in interest of late grandfather of plaintiffs, Sh. Ghasi Ram. It is further stated that late grandfather of plaintiffs, Sh. Ghasi Ram in 1959-60 had filed a suit for declaration that land bearing Khasra numbers 1131, 1134, 1157 and 1133 at Village Karawal Nagar, Delhi did not vest in the Gaon Sabha. It is further stated that the suit of the plaintiffs was decreed in respect of Khasra number 1157, 1133 and 1134 by the then Learned Judge, Delhi. It is further stated that the plaintiffs have been in continuous use and occupation of the property and cannot be dispossessed from the same. Even the factum of the plaintiffs being in possession of the suit property was duly noticed by the Hon'ble High Court of Delhi in the order, dated 22.08.2012, having CS (OS) number 816/2002 as well as in the order, dated 01.09.2016, passed in contempt petition number 605/2013. It is further stated that though the plaintiff 1 in his cross examination had deposed that "it is correct that the suit property is not in his possession as on date" on the first page of his cross examination recorded on 27.03.2017, but, the said deposition does not amount to admission of the possession of defendant number 2 as on the said page of his cross examination, plaintiff number 1 had denied the suggestion of counsel for defendant number 2 that the plaintiffs alongwith other plaintiffs never had physical possession of the suit property. Learned Counsel for plaintiffs has filed judgment titled as M/s. Mahajan Industries Pvt. Ltd. vs. Gaon Sabha, Chattarpur, W.P. (C) No. 10270/2015, decided on 04.01.2023. The same has been perused very carefully vis-a-vis facts of the present case. The present judgment seems not applicable to the present facts and circumstances of the case in hand.
Written submissions on behalf of defendant number 2 8(b). Written submissions have also been filed on behalf of defendant number 2 in which apart from reiterating the contents of written statement, CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 11 of 26it is once again specifically stated that the land bearing Khasra number 37/18/1, min. ad-measuring 1 Bigha and 12 Biswa, originally vested, into defendant number 2 (herein Gaon Sabha, Karawal Nagar) as per revenue records maintained by defendant number 2. It is stated that the land in question is in physical possession of defendant number 2, Gaon Sabha, Karawal Nagar. Moreover, defendant number 2 is the valid title holder in respect of the land in question. It is also stated that the plaintiff is neither the lawful owner of the land in dispute nor entitled to any Bhumidar rights pertaining to the same land. It is further stated that in the year 2002 Mangal Sain and his three brothers, sons of Sh. Ghasi Ram (grandfather of plaintiff) with an ulterior motive had filed a false, bogus, and frivolous Civil Suit bearing CS (OS) number 816/2002 titled Mangal Sain & Ors. vs. Gram Sabha before the Hon'ble High Court of Delhi claiming their rights in the abovesaid land (Khasra number 37/18/1 ad-measuring 1 bigha and 12 biswa) and seeking an injunction order (restraining the defendants from interfering in any manner with rights of the plaintiff over the land in question) against the defendant number 2. It is further stated that during the hearing, counsel of defendant number 2 (Gram Sabha) vehemently opposed such claim/rights of the plaintiffs over the land in question and drew the kind attention of the Hon'ble High Court of Delhi on the fact that the eviction proceedings against the plaintiffs have been commenced by defendant number 2 (Gram Sabha) before the competent authority under sections 81, 84 and 86-A of the Delhi Land Reforms Act, 1954.
It is further stated that the Hon'ble High Court of Delhi had pleased to dispose of the abovesaid Civil Suit vide it's order, dated 22.08.2012, with the observation that the plaintiffs should not alter the status quo of the land in question that is plaintiff would not construct on the land, cultivate the land or use the same in any manner so as to effect the pendency of the CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 12 of 26proceeding under the Delhi Land Reforms Act, 1954. It is further stated that Sh. Mangal Sain and others had failed to maintain the status quo of the land in question and blatantly defied the order, dated 22.08.2012, passed by the Hon'ble High Court of Delhi thereupon defendant number 2 initiated contempt proceeding against the contemnors by filing Contempt Case (C) number 605/2013, before the Hon'ble High Court of Delhi and the Court vide it's order, dated 01.09.2016, disposed of the contempt petition by directing defendant number 2 to construct six feet wall around the property in dispute/question so that the same is not encroached upon by anyone in future. It is further stated that the Block Development Officer, (North East), Delhi had moved an application for Tatima of the suit land and the report, dated 29.01.2013, filed by the Tehsildar, Karawal Nagar, District North East, Delhi was duly considered by Sh. Rakesh Kumar Revenue Assistant, Karawal Nagar by passing an ejectment order bearing number 5110, dated 04.03.2015 against Mangal Sain and others by observing that they had illegally occupied and unauthorizedly encroached upon the Gaon Sabha land bearing Khasra number 37/18/1 admeasuring 1 bigha and 12 biswa and ordered to eject from the abovesaid land.
Thereafter the warrants of attachment of possession bearing number 49/86-A/RA/SDM/KN/2002/5378, dated 23.04.2015, was duly passed in respect of the Gaon Sabha land in question. It is further stated that during cross examination, when counsel for defendant no. 2 had put a suggestion to the plaintiff that as you stated in your suit that the land is not a Gaon Sabha land why did your grandfather file the case in the year 1959-60 on such suggestive question the plaintiff replied that he did not know. It is further stated that during the course of further cross examination, plaintiff failed to produce the title documents pertaining to the land in question and made the false excuse that the documents were not traceable, and even the CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 13 of 26plaintiff admitted that the plaintiff had no documents proving his title over the land in question. It is further stated that as per documents filed by defendant number 2 and placed in the judicial file, defendant number 2 is the lawful and legal owner and has the valid title of the land in question, plaintiff is merely an encroacher and trespasser and not having lawful and legal title over the land in question. Same is government land as such comes within the purview of public property. It is further stated that in the catena of judgments, the Hon'ble Supreme Court of India has laid down that no injunction against a true owner, particularly, if the property happens to be public property should be passed.
Reasons and analysis/finding
9. After recording the gist of evidence led by both the parties, let me record the findings on each issue.
9(a). Issue number 1, that is, whether the simple suit of injunction without claiming any other relief is not maintainable and is barred under section 38 & 39 of the Specific Relief Act? Issue number 2, that is, whether the plaintiffs are the encroacher of the government land and if so, it's consequences? Issue number 3, that is whether the valuation of the suit as given in the plaint is improper? Issue number 4, that is, whether the Civil Court has no jurisdiction to decide the matter due to bar of section 185 of Delhi Land Reforms Act? and Issue number 6, that is whether the plaintiff is entitled to the relief of permanent injunction as claimed in the suit? The onus to prove issue bearing numbers 1, 2, 3 and 4 was upon the defendants while, the onus to prove issue number 6 was upon the plaintiffs. All these issues are taken up firstly and together, being interconnected/interrelated and having bearing upon each other. Doubtless, the object of a trial is to ascertain the truth by the light of the reason, and to do justice upon the CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 14 of 26basis of truth. In Dalip Singh vs. State of UP, 2010 2 SCC 114, it was observed by the Hon'ble Supreme Court that truth constitutes integral part of justice delivery system. Primarily, burden of proof is the legal burden which remains constant throughout a trial. The incidence of the burden on different issues may lie in different places, and issues may rise or fall according to the facts proved, but on analysis of issue the legal burden will not change it is the burden of establishing the facts and contentions which will support a party's case. If at the conclusion of the trial he/she has failed to establish these to the appropriate standard, he/she will lose. The incidence of this burden is usually clear from the pleadings, it usually being incumbent upon the plaintiff to prove what he contends. The evidential burden, however, may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; this burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be, was adduced by either side. Reliance is placed upon UOI vs. Vasavi Cooperative Housing Society Limited (2014) 2 SCC 269 and Jagdish Prasad Patel (Dead) Thr. LRs and Ors. vs. Shivnath and Ors. (2019) 6 SCC 82.
9(b). Thus, plaintiff has to establish his case and he will not automatically succeed merely because of the failure of the defendant to establish his/her defence. A party has to plead the case and produce/adduce sufficient evidence to substantiate his/her submissions made in the plaint. Burden of proof as mentioned in Section 101 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 provides upon whom burden of proof lies.
CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 15 of 26It has been provided that the burden of proof in a suit or proceeding lies on that person who would fail, if no evidence at all where given on either side. Section 103 of the Act provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person, and lastly Section 104 of the Act provides that the burden of proving any fact necessary to be proved in order to enable any person to give evidence of other fact is on the person who wishes to give such evidence. There is an essential distinction between burden of proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. Also, whether a civil or a criminal case, the anvil for testing of "proved", "disproved" and "not proved", as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. In such a suit, plaintiff has to create a high degree of probability so as shSection 185ift the onus on the defendants. Thereafter, the result of the suit depends upon the evaluation of the result drawn by the applicability of the rule. Reliance is placed upon A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136 and R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr, (2003) 8 SCC 752.
9(c). Now, that it is clear it is the plaintiff, who has to prove/establish his/her case. Moving forward, to the issues involved, firstly, with respect to the section 185 of Delhi Land Reforms Act, 1954, it needs to be pin pointed that according to the Delhi Land Reforms Act, ownership of the CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 16 of 26land vested in the State and different classes of owners and tenure holders became bhumidars/tenants and asamis/sub tenants of the land which is the subject matter of Delhi Land Reforms Act under the State. With the recommendations of Land Reforms Committee, Zamidari system was disintegrated and instead a new class of the tenure holders called Bhumidar and sub tenure holders Asami came into existence. The Delhi Reforms Act, 1954 is a complete code under which it is clear that anyone, wanting a declaration of his right as a Bhumidar, aggrieved by a declaration issued can approach the Revenue Assistant under Item IV of 1 st Schedule. A declaration by Gaon Sabha of the right of a person can also be sought without any period of limitation. Reliance is placed upon Gaon Sabha & Anr. vs. Nathi & Ors, Appeal (Civil) No. 3105/1997 decided on 23.03.2004.
Also, Hon'ble High Court of Delhi in Shri Ishwar Singh Decd. Through Lrs. & Ors. vs. Shri Suraj Bhan & Anr., RSA No. 44/2012 decided on 28.09.2016 has observed that ....9. it is required to be noted that the bar under section 185 of the Delhi Land Reforms Act only applies in case the legal proceedings are of such a nature which are covered under Sections contained in Column 2 of Schedule 1 of the Delhi Land Reforms Act. Section 185 of the Delhi Land Reforms Act reads as under:-
"185. Cognizance of suits, etc., under this Act. - (1) Except as provided by or under this Act no court other than a court mentioned in column 7 of Schedule I shall, notwithstanding anything contained in the Code of Civil Procedure, 1908, take cognizance of any suit, application, or proceedings mentioned in column 3 thereof.
(2) Except as hereinafter provided no appeal shall lie form an order passed under any of the proceedings mentioned in column 3 of the Schedule aforesaid. (3) An appeal shall lie from the final order passed by a court mentioned in column 3 to the court or authority mentioned in column 8 thereof. (4) A second appeal shall lie from the final order passed in an appeal under sub-
section (3) to the authority, if any, mentioned against it in column 9 of the Schedule aforesaid."
(ii) In case the subject matter of the suit is not covered under any of the Sections contained in Column 2 of Schedule 1 of the Delhi Land Reforms Act, the suit would not be barred.
Therefore, there seems to be no reason not to CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 17 of 26proceed further with the present case where permanent injunction is sought by plaintiffs in their plaint qua the suit property. Secondly, claiming of injunction with or without declaration is clarified by the Hon'ble Supreme Court of India in Anathula Sudhakar vs. P. Buchi Reddy (dead) by LRs & Anr.
(2008) 4 SCC 594 that:
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction.
But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
It has also been explained in Corpus Junis Secundum (Vol. 50, para CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 18 of 26735, page 229) that, where title to the property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment. Thus, an action for declaration is basically remedy to remove the cloud on the title of the property. Defendants here have vehemently raised the question with respect to the right/title of the plaintiffs over the suit land.
9(d). Lastly, an injunction is a judicial process whereby a party is required to do, or to refrain from doing any particular act. Injunctions are of two kinds temporary and perpetual. Temporary injunctions are regulated by Rules 1 & 2 of Order XXXIX while, perpetual injunctions are regulated by section 38 to 42 of the Specific Relief Act, 1963. Temporary injunction, on the other hand as provided by section 37 of the Specific Relief Act, is regulated mainly by the provisions of the Code of Civil Procedure. Sections 38 to 41 of the Specific Relief Act, 1963 have to be read, construed and interpreted together as each provisions supplemented the other. While, section 38 defines the circumstances under which the perpetual injunction be granted, Section 41 deals with the circumstances when the injunction must not be granted. There is equally and important condition for the grant of perpetual injunction, namely, when there is no equally efficacious relief which could be granted to the plaintiff, except the relief of perpetual injunction, it should be granted. It should be noted that the section contemplates the existence of rights in favour of the plaintiff as a condition precedent to the grant of the relief of the perpetual injunction, which is either threatened to be violated or is actually violated and existence of legal right in favour of one person contemplates the existence of corresponding legal duty in relation to that legal right in the other. In order to be entitled to perpetual injunction, the plaintiff must establish CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 19 of 26apprehended breach of an obligation existing in his favour, whether expressly or by implication. He must establish the right before he gets the injunction to prevent recurrence of its violation and Court has no jurisdiction to grant an injunction to restrain an act which inflicts no legal wrong on the plaintiff. The right in him gives rise to corresponding obligations in another, be he a private person or a public functionary. 9(e). It will be seen from the perusal of the section that the grant or refusal of the relief of perpetual injunction is within the judicial discretion of the Court. It is, no doubt, true that the exercise of the discretion by the Court, should be in accordance with the well established principles of justice, equity and good conscience as contained in this section as well as in other provision, of the Specific Relief Act. A suit for relief of perpetual injunction requires disclosure of the facts to satisfy the requirements of section 38 of the Specific Relief Act and absence of prohibition contain in section 41 of the Relief Act. Basically, in a suit for injunction, the issues and the decision would be confined to possessory aspect. If the right to possession of the property cannot be decided without deciding the title of the property and a person who approaches the Court, his status itelf is not clear then without declaring his status, relief cannot be granted. In case of the perpetual injunction, possession of the plaintiff is material. Where a plaintiff is not in the possession, a simple suit for injunction would not be maintainable. Question of the possession can be decided keeping in mind the right to possession which is to be ancillary gone into such a case. Doubtless, injunction is an equitable relief and would not be granted to a person who does not come to a Court with clean hands and who is guilty of suppression of facts. In order to be entitled to perpetual inunction, the plaintiff must establish apprehended breach of an obligation existing in his favour, whether expressly or by implication. He must establish the right CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 20 of 26before he gets the injunction to prevent recurrence of its violation and Court has no jurisdiction to grant an injunction to restrain an act which inflicts no legal wrong on the plaintiff. The grant of absolute injunction resulting in an invasion of the defendant's legitimate right to use his own property and restrain him from enjoying his own land is wholly illegal. The right in him gives rise to corresponding obligations to in another, be he a private person or a public functionary. Reliance is placed upon Prasana Meesale v Binod Chandra Samal, 1974 (2) C.W.R. 937, Duruju Malik, Duryodhan Swain v Krupasindhu Swain, (1984) 58 CUTLT 359, Ramchandra Dagdu Sonavane v Vithu Hira Mahar, (2009) 10 SCC 273. at p. 290 and Anand & Iyers's The Specific Relief Act, 1963. 9(f). Adverting, to the facts of the present case, admittedly, plaintiffs have no proof of ownership over the suit property or say there is no document on record/produced by the plaintiffs which may be helpful in establishing their (plaintiffs) ownership qua the suit property. Ownership needs to be established to consider the aspect of possession whether it was with plaintiffs? and, if, it is so whether it is valid or not? The fact remains that no revenue record was produced by the plaintiffs to show that the land in question was ever mutated in their favour. Plaintiffs though are claiming/asserting their ownership over the suit property through their father and more specifically through their grandfather Late Ghasi Ram stating that latter was the owner of the Khasra bearing number 37/18/1 (earlier Khasra number 1134 admeasuring 1 bigha 12 biswa). It is to be noted that Late Ghasi Ram, had filed a suit for declaration qua the aforesaid khasra number alongwith other khasra numbers and it is claimed by the plaintiffs, herein, that the suit filed by their grandfather was decided in his favour. During the course of plaintiff's testimony, PW1 has relied upon a judgment, dated 05.03.1962, and has also filed true translation copy CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 21 of 26of the said order passed by the then Sub Judge, Delhi. Plaintiffs have never bothered to specify the family tree of Late Ghasi Ram or to say even if they are entitled, how much share they may be entitled. It is not wrong to say that in judgment/order, dated 05.03.1962, nothing relevant qua the ownership of the plaintiffs over the suit property or even their grandfather through whom present plaintiffs are claiming/stressing their rights over the suit property can be culled out. Again, admittedly various/different other members of the family of Late Ghasi Ram/other legal representatives of Late Ghasi Ram had initiated separate cases at one or the other time against the defendants and the relevant orders passed in such cases. One of such orders, though as such has not been exhibited by defendant number 2, but, lying in file and not denied by the plaintiffs is reproduced herein for the sake of brevity:-
IN THE COURT OF REVENUE ASSISTANT/SDM KARAWAL NAGAR D. C. OFFICE COMPLEX, NAND NAGARI, DELHI-110093 No. 5110 Dated: 4/3/15 Case No. 49/86-A/RA/SDM/KN/2002/5378 U/s 86-A of DLR Act, 1954 Dev Dutt Sharma & Ors. Plaintiff \ Vs
1. Mangal Sain & ors
2. Ravinder Kumar
3. G.S. Karawal Nagar Respondent ORDER This order shall dispose off the proceeding U/s 86-A of DLR Act, 1954.
Whereas, the proceedings in this case were initiated on the basis of application filled by Sh Dev Dutt Sharma and others vide dated 23.7.1999 staling that defendant number 1 and 2 are trying to grab the land bearing Khasra number 37/18/1 min (1-12) belonging to Gaon Sabha defendant number 3. The defendants number 1 and 2 has illegally occupied and un-authorisedly encroached the land of Gaon Sabha and built the rooms on it. The defendants number 1 & 2 tried to change the user of the land from agricultural to commercial purpose and whereas the Khasra Khatooni for the year 1996-97-98 shows that the land in question is under the hold of Gaon Sabha, and Whereas, the Block Development Officer filed an application on behalf of Gaon Sabha under order 1 rule 10, order 23 rule 1A read CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 22 of 26with section 151 of Civil Procedure Code read with section, praying that main dispute is among defendant number 3 and defendant number 1.& 2 and that the question belongs to defendant number 3 and the defendant number 1 & 2 has encroached and occupy the land into non agricultural purpose. The BDO pleated that they may be allowed as applicant/defendant asa plaintiff in the said suit in the interest of justice. The application filed by the defendant number 3 was allowed by passing an order dated 06.02.2018, and Whereas, the BDO (North East) moved a application for Tatima of the suit land. The Tatima report filed by Tehsildar (Karawal Nagar) vide dated 29.01.2013 was accepted vide order dated 30.03.2023, and Whereas, an application section 10 of CPC R/W Section 151 filed by defendant number 1 and 2 praying that proceeding of this case be dismissed and direct the Gaon Sabha to record the physical possession of the defendant number 1 and 2 in the Revenue Record by making necessary correction on the basis of physical cultivator possession. Ld. Counsel of BDO/Gaon Sabha filed a reply of the said application stating that the defendants were not having any cultivated possession through their any forefather namely Sh. Ghasi Ram and themselves for any more than last 55 years. After gone through the written submission and arguments of both the counsels the said application under section 10 of CPC R/W Section 151 CPC was dismissed vide order dated 18.12.2014, and Whereas, another application under section 11 of CPC and stay of proceeding from and on behalf of the defendant number 1 and 2 filed. After hearing both the Ld. Counsel for defendants and Gaon Sabha/BDO, the said application was dismissed vide order dated 04.03.2014.
In view of the above, I am of the considered opinion that the defendants number 1 and 2 illegally occupied and un-authorisedly encroached Gaon Sabha land on One Bigha 12 Biswa of Gaon Sabha Village Karawal Nagar bearing Khasra number 37/18/Min and built the rooms on it. Now I Rakesh Sharma, Revenue Assistant do hereby ordered that the defendants be ejected from the said One Bigha and 12 (twelve) Biswa of Khasra number 37/18/1/Min of Village Karawal Nagar.
Announced in the open court and given under my hand and seal of this Court on this 4th day of March, 2015.
File be consigned to record room.
(RAKESH SHARMA) REVENUE ASSISTANT (KARAWAL NAGAR) DISTT. NORTH-EAST Copy for information and necessary action to:
1. Sh. Dev Dutt Sharma S/o Sh. Lohari Ram Sharma, B-452, Prem Vihar (Shiv Vihar) Gali No. 6, East Karawal Nagar, Delhi-110094
2. Sh. Mangal Sain S/o Sh. Ghasi Ram R/o Village Karawal Nagar, Delhi Defendant No. 1.
3. Sh. Ravinder Kumar S/o Sh. Mangal Sain, R/o Village Karawal Nagar, Delhi Defendant No. 2.
4. BDO (North-East)/Gaon Sabha Karawal Nagar.
5. Tehsildar (Karawal Nagar).
6. DIO (Distt. North-East) to upload the order on the website of Deptt.
9(g). Now, the aspect of possession, establishing, of which is primarily CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 23 of 26required for granting the relief of permanent injunction. Here plaintiffs had claimed in the plaint that they were in the possession of suit property, but, during the course of cross examination, PW1 has specifically submitted that the plaintiffs are not in the possession of the suit property. Neither any relevant document in establishing otherwise that is to say establishing possession of plaintiffs over suit property filed by the plaintiffs, despite, opportunities given. In the written submissions, plaintiffs tried to clarify this by submitting that though the PW1 had submitted that the plaintiffs are not in possession of the suit property, but, at the same time, PW1 had also denied the suggestion put to him by Learned Counsel for defendants that the suit property was never remained in their possession, raising such type of confrontation in overall scheme/scenario is as such not reliable. Similarly, testimonies of remaining witnesses produced on behalf of plaintiffs seem not relevant, in fact, these are insufficient enough to establish the ownership/possession over the suit land either of plaintiffs or of their predecessors-in-interest. It is not out of place to point out here that one of the plaintiffs' witnesses appeared from Sub Divisional Office, Karawal Nagar had relied upon a document, Ex.PW1/6, states that khasra number in question was allotted to one Harijan by Gaon Sabha. It is to be noted that the possession on the date of suit is must before any equitable relief in the form of permanent injunction may be granted to the party as it has also been discussed before hand. Injunction is a relief based on equity. When plaintiffs tried to seek injunction by confusing the Courts by mentioning that plaintiffs' father was one of the recorded tenure holder of suit land it cannot be said that plaintiffs have come with clean hands. Reliance is placed upon Daulat Ram v Gopal Krishna Baode, 2010 (1), A.L.J 81 at p. 683, Thimmaiah v Shabira, (2008)4 BC.C. 182 at p. 184 and N. Hanumantha Rao v. Corporation of the City of Bangalore, ALR. 1996 CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 24 of 26Kant. 296 at p 300.
9(h). The party seeking injunction on the allegation that the party is in possession of the property, seeks assistance of the Court by praying for an injunction restraining the other party alleged to be disturbing possession of the party in possession must show it's lawful possession of the property which in turn must be referable to valid title. Plaintiffs here had not been able to prove the document on the basis of which they are claiming a right of possession of the property in question. Also, a suit simpliciter for injunction may not be maintainable as the title of the property of plaintiffs was disputed and as such not established. Relief of injunction is a discretionary relief and a party before a Court can ask to exercise discretion in it's favour must show that it has some equities in it's favour. In the alternative, the party seeking injunction must possess some right which the opposite party is trying to invade or there must exist an obligation in its favour whether contractual or otherwise in respect of which the opposite party is trying to commit a breach. Also, it is well settled that in cases of government land, there is a greater responsibility of Courts in ascertaining/evaluating title. In fact, the plaintiff in such cases must establish his clear right, title and nature of possession in the property, superior to that of Government authority and there is presumption in favour of Government. Reliance is placed upon R. Hanumaiah & Anr. vs. Secretary to Government of Karnataka Revenue Department & Ors. (2010) SCC 203 and Nathu Ram vs. DDA & Anr. RSA 64 /2020, decided on 01.02.2022 by Hon'ble High Court of India. Accordingly, in view of totality of above discussion, issues bearing numbers 1, 2, 3 and 6 are decided against the plaintiffs.
Issue number 5, that is, whether the suit is barred under section 11 of the Code of Civil Procedure due to res judicata? The onus to prove this CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
Page No. 25 of 26issue is upon the defendants. When a matter, whether on a question of fact or on a question of law, has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed or no appeal lies, neither party will be allowed in a future suit or proceeding to canvass the matter again. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct. It is a doctrine of fundamental important that seeks to ensure that there is an end to all litigation. Where neither the reliefs claimed in two suits were identical, nor the parties were the same and nor could the decision in the first suit said to have been on the merits, it was held that principles of res judicata cannot be applied. Reliance is placed upon City Municipal Council Bhalki v Gurappa, AIR 2015 SC 3826. As defendants have failed to lead any evidence regarding the similarity of reliefs claimed by the present plaintiffs, this issue is decided against the defendants.
10. Substantive issues bearing numbers 1, 2 and 6 have already been discussed in detail in the paragraphs above and found/decided against the plaintiffs. Further, in view overall circumstances and in the light of the foregoing discussion, it can be safely said that the plaintiffs here are not able to discharge the burden of proof lying upon them vis-a-vis preponderance of the probabilities, the suit of the plaintiffs is accordingly dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to Record Room after necessary compliance. MANU Digitally signed by MANU VEDWAN VEDWAN Date: 2024.12.06 15:54:11 +0530 Manu Vedwan) District Judge-02 (North East District) Karkardooma Courts, Delhi.
Announced in the open court today i.e. 06th December, 2024 CS No. 461/2016 Mehar Singh & Ors. Vs. State of National Capital Territory of Delhi & Anr.
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