Delhi District Court
Sh. Seeta Ram Pal vs Prem Chand Chaurasia on 21 October, 2020
IN THE COURT OF CIVIL JUDGE-06, (CENTRAL), TIS HAZARI COURTS,
DELHI
DATE OF INSTT: 10.12.2010
CIS NO. :1494/2016
CNR NO. : DLCT03-000631-2010
DATE OF DECISION 21.10.2020
PRESIDING OFFICER: Mr. RUPINDER SINGH DHIMAN
Sh. Seeta Ram Pal,
S/o Sh. Gutta Prasad,
R/o B-7, Indra Prastha Colony,
Burari, Delhi - 110084. ........Plaintiff
Versus
1. Prem Chand Chaurasia,
2. Daya Ram,
Both sons of Sh. Tulsi Ram
R/o H.No. 57, Opposite MCD,
Village Jharoda Majra, Burari,
Delhi - 110084.
3. SHO,
PS Swarup Nagar, Delhi. ...........Defendants.
Argued by:
(a) Sh. A.K. Dubey, counsel for plaintiff.
(b) Sh. Saket Kumar, counsel for defendants no.1 and 2.
Note: Defendant no.3 is already deleted from array of parties vide order dated
31.01.2011.
CNR No. DLCT03-000631-2010 1of11
SUIT FOR PERMANENT INJUNCTION AND DECLARATION
J U D G M E N T:
1. Present suit for permanent injunction and declaration has been filed by the plaintiff against the defendants with the following averments: -
"Plaintiff is residing in the suit property bearing Khasra No. 40/8, and Temporary number is given as J-3/A,. Plaintiff had purchased a vacant plot adjoining to the house of defendants after paying the sale consideration of Rs. 50,000/- on 13.01.2005 from Sh. Bodhraj. The said Sh. Bodhraj executed the agreement to sell, WILL, receipt, affidavit and GPA in favour of the plaintiff and also handed over the possession of the suit property. Immediately after purchase of the plot, plaintiff raised a boundary wall as shown in red colour in the site plan and and house of the defendants is adjacent to the plot of the plaintiff as shown in green colour in the site plan. On 27.10.2010, at about 5.00pm, defendants no.1 and 2 tried to demolish the boundary wall. Plaintiff called the PCR due to which defendants could not succeed in their plain. Plaintiff lodged a complaint dated 08.10.2010 vide DD No. 34 B with the police station. However, no action was taken by defendant no.3 in this regard. On 06.12.2010, defendants no.1 and 2 again threatened to demolish the boundary wall but could not succeed in their plan. Hence the plaintiff has filed the present suit praying for permanent injunction against the defendants no.1 and 2 restraining them from interfering in peaceful possession of the plaintiff of the suit property. Plaintiff further pray for decree of declaration that the document with respect to the above suit property in the name of defendants be declared as null and void".
2. As nothing was sought against defendant no.3 i.e. SHO PS Swaroop Nagar, he was deleted from array of parties vide order dated 31.01.2011. Thereafter, notice was issued to defendants no.1 and 2. On notice, defendants no.1 and 2, filed a joint written statement wherein they denied the allegations of the plaintiff and averred that:
"Defendant no.2 is the actual owner of the suit property who purchased the same from its previous owner Sh. Arvind vide GPA, agreement to sell etc. dated 03.04.1993. Defendants have purchased the property and constructed one room and boundary wall in the suit property as shown in red color in the site plan filed along with the WS. Defendant no.2 however, lost the title documents and therefore, CNR No. DLCT03-000631-2010 2of11 registered a complaint with respect to the same on 27.09.2010. Notice with respect to losing the title documents with respect to suit property was published in newspaper Veer Arjun. Plaintiff is trying to grab the property of defendant no.1. Hence the defendants have prayed for dismissal of the suit".
3. Thereafter, replication was filed on behalf of plaintiff wherein he denied the allegations of the defendant and averred that he is the absolute owner of the suit property by virtue of title documents dated 13.01.2005.
4. On 16.05.2012, based upon the pleadings of the parties, following issues were framed:
Issues:
I. Whether the plaintiff is the owner of suit property bearing no. J-3/A Khasra No. 40/08, Amrit Vihar Burari, (Presently known as Indraprastha Colony, Burari, Delhi- 110084)? OPP. II. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in prayer clause A? OPP.
III. Whether the plaintiff is entitled to a decree for declaration as prayed for in prayer clause B? OPP.
IV. Whether the suit is bad for misjoinder of defendant no.1? OPD-1.
5. Thereafter, the matter was fixed for plaintiff's evidence (hereinafter referred to as PE). In PE plaintiff examined himself as PW-1 wherein he reiterated the averments made in the plaint. The same are not repeated herein for the sake of brevity. In addition, he relied upon the following documents: -
Ex. PW-1/1 : Site plan
Mark A Colly. : Copy of GPA, Agreement to sell, receipt, WILL
and affidavit dated 13.01.2005
(Running into six pages) (mentioned as Ex. PW-
1/2 in the affidavit)
CNR No. DLCT03-000631-2010 3of11
Mark B Colly. : Copy of GPA, Agreement to sell, receipt, WILL
dated 17.03.2004
(Running into eight pages)(mentioned as Ex. PW-
1/3 in the affidavit).
Mark C Colly. : Copy of GPA, Agreement to sell, receipt, WILL
dated 06.03.1995
(Running into six pages) (mentioned as Ex. PW-
1/2 in the affidavit)
Mark D : Copy of complaint made to SHO Swaroop Nagar
6. PW-1 was duly cross-examined by Ld. Counsel for defendants. In cross examination, he stated that he purchased the suit property from Bodh Ram. But he took 6-7 minutes to answer the said question after taking a long pause. However, he could not tell who was the previous owner prior to Bodh Ram. He stated that he is illiterate and only knows how to sign. He further deposed that though he was shown documents of previous owner, but he cannot tell the details. He also deposed that there was a boundary wall in existence, when he purchased the suit property. However, on being confronted with paragraph 10 of the plaint wherein he has stated that he got the boundary wall constructed after purchasing the suit property, he stated that defendant broke the boundary wall and he again constructed the boundary wall. However, he again said that he constructed the boundary wall after purchasing the suit property.
7. Plaintiff also examined Sh. Rakesh Rai as PW-2. PW-2 deposed in favour for plaintiff and stated that plaintiff has been in possession of the suit property since 13.01.2005 after the purchase of same through the documents dated 13.01.2005. PW-2 was also cross-examined on behalf of defendants. In cross examination, he stated that he is under employment of the plaintiff. He also conceded that he is not educated and therefore, he does not know the transfer documents shown by plaintiff. He also could not tell the details of the previous CNR No. DLCT03-000631-2010 4of11 owner of the plaintiff.
8. On 20.09.2014, PE was concluded and the matter was fixed for defendant's evidence (hereinafter referred to as DE).
9. In DE defendant no.2 examined himself as DW-1. He tendered his evidence by way of affidavit Ex. DW-1/A wherein he reiterated the averments made in the written statement. In addition, he relied upon the following documents: -
Ex. DW-1/1 : Site plan.
Mark D1 : Copy of NCR/FIR bearing no.1194/2010
(Mentioned as Ex. DW-1/2 in the affidavit).
Mark D2 : Copy of the paper cutting
(mentioned as Ex. DW-1/3 in the affidavit).
Mark D3 : Copy of complaint vide DD No. 40B dt
08.01.2011 (mentioned as Ex. DW-1/4 in the affidavit).
Mark D4 : Copy of the order of Ld. Civil Judge
(mentioned as Ex. DW-1/5).
10. DW-1 was duly cross-examined by Ld. Counsel for plaintiff. In cross examination, he stated that he purchased the suit property in the year 1993 for a consideration of Rs. 1993. He conceded that he has no proof of payment of said consideration. He stated that sale documents were registered at Kashmiri gate and Chote lal and Shyam Lal were witness to the same. He further stated that there was one room already constructed on the suit property when he purchased the same. However, on being confronted with paragraph 5 of his affidavit, he stated that he got repair work done in the said room. He also conceded that he lost the title papers in year 2010. He also admitted that no one has resided on his behalf in the suit property for the past several years.
11. Defendants also examined Sh. Sanjay Kumar Tyagi, Manager Syndicate CNR No. DLCT03-000631-2010 5of11 Bank to prove statement of account for the period 01.01.2006 to 25.04.2016 and account opening form in the name of Sh. Prem Chand Chourasia as Ex. DW-3/1 and Ex. DW-3/2 respectfully.
12. Further Paras Nath Shukla was also examined by the defendants who tendered his evidence by way of affidavit Ex. DW-3/A. Sh. Paras Nath Shukla deposed in favour of defendants and stated that the defendants purchased the suit property in the year 1997. He further deposed that defendants had lost the property documents in the year 2010. Both the witnesses i.e. DW-2 and DW-3 were duly cross-examined by counsel for plaintiff.
13. On 15.10.2018, counsel for defendants closed DE and the matter was thereafter fixed for final arguments.
14. I have heard the arguments and perused the record. My issue wise findings are as under:
Issue No.I I. Whether the plaintiff is the owner of suit property bearing no. J-3/A Khasra No. 40/08, Amrit Vihar Burari, (Presently known as Indraprastha Colony, Burari, Delhi- 110084)? OPP.
15. It is trite to state that pleadings form the backbone of litigation. They should be carefully drafted. In case, pleadings are vague and evasive, then party who relies upon such pleadings cannot take benefit of such pleadings. This case highlights the said preposition of law. The onus to prove this issue was on the plaintiff. Plaintiff has deposed that he is the owner of the suit property. He further deposed that he purchased the suit property from Sh. Bodh Raj through Agreement to Sell, WILL, Receipt, Affidavit and GPA (all dated 13.01.2005) after paying a sum of Rs. 50,000/- as consideration. However, originals of the said documents were not filed. Only photocopies were brought on record which CNR No. DLCT03-000631-2010 6of11 were marked as Mark A (Colly.). The originals of the said documents were not brought on record. No reason has also been mentioned as to why the originals were not tendered in evidence nor permission was sought to prove the said documents through secondary evidence. Sh. Bodh Raj the executant of the said documents was also not examined. Hence, the said documents remained unproved. Plaintiff also filed photocopy of the agreement to sell, GPA etc. (all dated 17.03.2004) which were collectively marked as Mark B to show title in favour of previous owner Sh. Bodh Raj. However, the originals of the said documents were also not filed. Therefore, the said documents also remained unproved. Thus, the plaintiff failed to prove due execution of the documents of ownership of the previous owner as well as himself. In these circumstances, plaintiff cannot be held to be the owner of the suit property on the basis of said documents.
16. On the other hand, defendant has deposed that he purchased the suit property in the year 1993. However, he deposed that he has lost documents. At the outset, I must state that I find the version of the defendant unbelievable. No documents of the suit property were produced by him. Also, the complaint with respect to loss of documents was also lodged in the year 2010, when the dispute with respect to suit property had already arisen giving rise to veracity of said version. Further, in cross examination, he admitted that only GPA was executed in his favour. Moreover, despite stating that his tenant resided in the suit property, no proof with respect to this was led.
17. But all these shortcomings in the version of the defendant, do not aid the case of plaintiff. In order to prove his title over the immoveable property, plaintiff should have proved his title documents. But the plaintiff has miserably failed to proof the same. Only photocopies were brought on record. Even the chain of title documents relied upon by him were photocopies. Further, clause 1 and 2 of the CNR No. DLCT03-000631-2010 7of11 copy of agreement to sell dated 13.01.2005 (Mark A Colly.) reads as under:
"1. That the consideration amount of the above said property received by the first party do hereby transfer convey and assign the above said property, all rights, title and interest upon the second party.
2. That the first party has delivered the vacant possession of the above said property to the second party on the spot."
18. Admittedly the said document is unregistered. Therefore, even if for the sake of arguments, possession of plaintiff is conceded, no interest would be conveyed under the said agreement in view of Section 49 of the Registration Act. Said document is compulsorily registrable under Section 17 (1A) of the Registration Act as the possession has been handed over in part performance of the agreement to sell. Hence, plaintiff has failed to prove ownership of the suit property.
Accordingly, issue no.1 is decided against the plaintiff.
Issue No. II Whether the plaintiff is entitled to a decree of permanent injunction as prayed for in prayer clause A? OPP.
19. The onus to prove this issue was on the plaintiff. In order to be entitled to the relief of injunction, plaintiff must establish:
(a) Legal right in the suit property and (b) Injunction is the appropriate remedy in the present case.
20. However, plaintiff has miserably failed to show any legal right in the suit property. Documents of ownership relied upon by the plaintiff have remained unproved. Further, PW-1 has deposed that the suit property is a vacant land. Even though this fact is disputed by the defendant, but perusal of the site plan of plaintiff Ex. PW-1/1 shows that the suit property is an open plot having only a boundary wall. It is no longer res integra that in case of open plot, possession CNR No. DLCT03-000631-2010 8of11 follows title. For this reference can be made to paragraphs 15 and 16 of judgment of Hon'ble Apex Court in Anathula Sudhakar vs. P. Buchi Reddy (Dead) by LRs and Others (2008) 4 SCC 594. On the basis of same, it can be held that if two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession as against the person who is not able to establish his title. Plaintiff in the present case has failed to establish his title. Though the defendant has also failed to establish title, but that in itself is not sufficient to entitle plaintiff to the equitable relief of injunction.
21. Even otherwise, if for the sake of arguments, it is assumed that the suit property is not a vacant land, plaintiff has not brought on record a single document to show his possession in the suit premises. Merely photocopy of documents was filed by the plaintiff. The said documents also cannot be looked even for collateral purpose as the documents have remained unproved. Executant of the said documents Sh. Bodh Raj was never examined. Nor any deposition was made in the entire evidence regarding due execution of said documents. Even the chain of title documents of Bodh Raj (Mark B Colly.) and his vendor Sh. Virender Prasad (Mark C Colly.) remained unproved as only photocopies were filed. No witness was examined to prove the execution of said documents also. Therefore, interest of Bodh Raj and Virender Prasad in the suit property also remained unproved.
22. Thus, in the considered opinion of this court, injunction would not be an appropriate remedy in the present case. Accordingly, issue no II is decided against the plaintiff.
Issue No.III Whether the plaintiff is entitled to a decree for declaration as prayed for in prayer clause B? OPP CNR No. DLCT03-000631-2010 9of11
23. The onus to prove this issue was on the plaintiff. Plaintiff has prayed for a decree of declaration that if any documents have been executed by the defendants in respect of the suit property, the same be declared as null and void. However, during the course of final argument the said issue was not pressed. Even otherwise, no documents were brought on record by the defendant to show title of the suit property in his favour. DW-1 in his cross-examination dated 03.02.2018 stated that only GPA was executed in his favour in the year 1993. Hence, the issue remained not pressed and unproved. Further, plaintiff has failed to prove that he is the owner of the suit property and hence he would have no locus to challenge the documents. Accordingly, no findings are called for with respect to this issue.
Issue No. IV IV. Whether the suit is bad for misjoinder of defendant no.1? OPD-1
24. The onus to prove this issue was on the defendant no.1. Defendant had raised objection in his written statement that the suit is bad for mis-joinder of parties as defendant no.1 has been impleaded as a party in the present suit only in order to harass him and humiliate him as the property stands in the name of defendant no.2 only. However, defendant no.1 did not lead any evidence. He did not examine himself. Hence, the issue remained unproved. Further, Order I Rule 9 CPC provides that no suit shall be defeated by reason of mis-joinder of parties. The court can in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it. Therefore, the suit cannot be dismissed for mis-joinder of defendant no.1.
Accordingly, issue no.4 is decided against the defendant.
25. In view of aforesaid findings and observations, suit of the plaintiff stands CNR No. DLCT03-000631-2010 10of11 dismissed. Further, in view of the peculiar circumstances of the case, both the parties are directed to bear their own costs.
26. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Digitally signed by RUPINDER RUPINDER SINGH DHIMAN
SINGH DHIMAN Date: 2020.10.21 12:19:16
+05'30'
(Rupinder Singh Dhiman)
Civil Judge -06 (Central)
Tis Hazari Court
Delhi/21.10.2020
CNR No. DLCT03-000631-2010 11of11