Delhi District Court
Praveen Kumar vs Jagat Ram on 5 September, 2023
IN THE COURT OF SH. PRITU RAJ: CIVIL JUDGE : NORTH
DISTRICT, ROHINI COURTS : DELHI
CS SCJ 349/18
CNR No. DLNT030002962018
In reference:
Sh. Praveen Kumar
S/o Rajinder Singh
R/o Village & P.O.
Majra Dabas
Delhi110081 ........... Plaintiff
VERSUS
(1) Sh. Jagat Ram
S/o Sh. Bhim Singh
R/o 1028, Pana Paposian, Narela,
Delhi110040
(2) Sh. Surender
S/o Sh. Jagat Ram
R/o 1028, Pana Paposian, Narela,
Delhi110040
(3) Sh. Vijender
S/o Sh. Jagat Ram
R/o 1028, Pana Paposian, Narela,
Delhi110040 ............ Defendants
Date of Institution : 09.02.2018
Date of reservation of Judgment : 05.09.2023
Date of Judgment : 05.09.2023
CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 1 of 19
JUDGMENT
1. Vide this judgment, I will dispose of the suit filed by the plaintiff against the defendants seeking the relief as contained in the prayer clause of the plaint.
FACTS AS PER THE PLAINT :
2. The case of the plaintiff, as per plaint in brief, is that the plaintiff claims to be in actual and physical possession of the suit property (as described below) as a general power of attorney holder of Dr. Ashwini Basil who was the rightful owner and in possession of piece of land measuring 2268 sq. (2 Bighas 5 Biswa), village Bhorgar, Narela, Delhi110040, bound by Rasta 15 Feet in East, Railway Line in the West, Land of Lal Dora in South and Land of Other in North [hereinafter called as 'suit property']. It is the case of the plaintiff that said Dr. Ashwini Basil was the owner of the aforesaid property by virtue of documents which were in possession of Mr. V.D. Sharma, the Co. Attorney Holder alongwith the plaintiff herein and that Dr. Ashwani Basil executed GPA and Will in respect of aforesaid land in favour of the plaintiff herein and Shri V.D. Sharma, s/o Shri Chote Ram, thereafter, plaintiff and Shri V.D. Sharma enjoyed uninterrupted possession of the property till 06.02.2018 when the defendants herein tried to grab the property of the plaintiff. It is the further case of the plaintiff that defendant no. 1 Shri Jagat Ram had witnessed the aforesaid CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 2 of 19 power of attorney dated 06.01.1999 registered on 06.01.1999 executed by Dr. Ashwani Basil in favour of plaintiff and late Shri V.D. Sharma. It is the further case of the plaintiff that plaintiff got to know that the coattorney holder of plaintiff Shri V.D. Sharma got expired and the intention of the defendant no. 1 got malafide and he has been trying to grab the property without any right in the same with collusion of his sons defendants no. 2 and 3. It is also case of the plaintiff that on 06.02.2018, the defendant no. 1 alongwith his two sons defendants no. 2 and 3 came to the suit property and tried to grab the possession of the front portion of the suit property and property which was lying vacant was covered by some dewbbries and some plants which were removed by the defendant and on query from the plaintiff, the plaintiff was threatened by the defendant with dire consequences and that the defendants threatened the plaintiff that they are having documents of the suit property int heir favour and are going to sell the property. Hence, the present suit.
RELIEF:
3. The following are reliefs claimed by the plaintiff in the plaint:
(a) That a decree for permanent injunction may be passed in favour of the plaintiff and against the defendants thereby restraining the defendants and their family member, agents, servants, employees, associates etc. from selling, transferring, CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 3 of 19 alienating, letting out, parting with possession and/ or creating third party interest in the suit properties in any manner whatsoever.
(b) That cost of the suit may also be awarded in favour of the plaintiff and against the defendants.
DEFENCE :
4. In defence, defendants entered appearance on 02.05.2018 and filed their joint WS on 06.07.2018 wherein they took the plea that the suit is not maintainable as the plaintiff is neither the owner nor in possession of the suit property. It was also claimed on behalf of the defendants that the plaintiff does not have a cause of action in his favour, no locus standi to file the present suit and the same is bad for nonjoinder as well as misjoinder of parties. The defendants also claimed that the suit property had been acquired by DDA vide award no. 199/8687 and the only area portion measuring 6 biswas out of khasra no. 50/1 is unacquired land which is neither owned nor possessed by the Plaintiff. The defendants also claimed that the suit is barred by Section 185 of Delhi Land Reforms Act, 1954. On merits, the averments in the plaint were denied in toto.
ISSUES:
5. Vide order dated 05.02.2019, the following issues were framed:-
CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 4 of 19 I) Whether the suit of the plaintiff is not maintainable as the same does not disclose a valid cause of action in the favour of the plaintiff and against the defendant? OPD. II) Whether the suit of the plaintiff is not maintainable, being barred under the provisions of Section 185 of the Delhi Land Reforms Act, 1954? OPD.
III) Whether the suit of the plaintiff is not maintainable in the present form, being hit by Section 41(h) of the Specific Relief Act, 1963? OPD.
IV) Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for? OPP. V) Relief.
DOCUMENTS & EVIDENCE:
6. In support of the case of the plaintiff, plaintiff has been examined as PW1 Thereafter, PE was closed vide order dated 21.12.2022.
7. In defence, the defendant has examined Shri Vijender as DW1 and thereafter, DE was closed vide order dated 12.05.2023.
8. Final arguments were heard on behalf of the plaintiff and the Defendants did not lead any oral arguments but filed written submissions. Subsequently, matter was fixed for judgment.
CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 5 of 19 FINDINGS OF THE COURT:
9. Before embarking to decide the present case, it would be appropriate to reiterate the burden of proof required to be discharged in civil proceedings. As laid down in Postgraduate Institute of Medical Education and Research v. Jaspal Singh, (2009) 7 SCC 330, the burden which ought to be discharged in civil proceedings in not as strict as in criminal cases and in order for any party to succeed, he/it is required to prove his/its case on the preponderance of probabilities. The relevant portion of the aforesaid pronouncement is hereby produced here for the sake of brevity:
It has been held that there is a marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defen dant is not necessarily entitled to the benefit of every rea sonable doubt; but in criminal proceedings, the persua sion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt."
10. Further, Section 101 of the Evidence Act, 1872 defines "burden of proof" and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 6 of 19 his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, 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 lied on any particular person. Further, Section 58 of the Indian Evidence Act contains that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
11. Having determined the burden of proof required to be discharged in civil cases, this court will now proceed to give it issue wise findings as per the issues framed on 05.02.2019, as follows: Issue No. I I) Whether the suit of the plaintiff is not maintainable as the same does not disclose a valid cause of action in the favour of the plaintiff and against the defendant? OPD.
12. The onus to prove the aforesaid issue was upon the defendant.
Cause of action as defined by the Hon'ble Apex Court in ABC CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 7 of 19 Laminart Pvt. Ltd. Vs. AP Agencies , Salem (1989) 2 SCC 163, means a bundle of facts which has to be provided by the plaintiff in order to succeed in the suit. In other words, the plaintiff ought to show the existence of a legal right and the denial of the same by the defendant. In the present case, a perusal of the plaint shows that the plaintiff has claimed to be in possession of the suit property and has claimed that the said right has been denied by the defendants by their alleged illegal acts. Hence, the plaint cannot be said to be devoid of cause of action. Accordingly, this issue is decided in the favour of the plaintiff and against the defendants.
Issue No. II II) Whether the suit of the plaintiff is not maintainable, being barred under the provisions of Section 185 of the Delhi Land Reforms Act, 1954? OPD.
13. The onus to prove the aforementioned issue was upon the defendant. It has been argued on behalf of the defendants that the present suit is barred by Section 85 of the Delhi Reforms Act, 1954 (hereinafter called as the 'DLR Act') and it has been contended that since remedy claimed by the plaintiff has been provided under the aforesaid act, the plaintiff ought to have approached the relevant authorities under the aforesaid act for the present case.
CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 8 of 19
14. The jurisdiction of the Civil Court, as provided under Section CPC enables it to try all suits of a civil nature, excepting those of which cognizance is either expressly and impliedly barred. What flows from the aforesaid provision is that the jurisdiction of a civil court is of wide amplitude and an ouster of jurisdiction is not to be readily inferred with the exclusionary clauses to be construed narrowly. Reliance in this regard is placed on land decision of the Hon'ble Apex Court in Dhulabhai Vs. State of MP, AIR 1969, SC 78.
15. Hence, as a corollary, the jurisdiction of this court can be ousted only if the remedy sought by the plaintiff is provided for under DLR Act. Now coming to the Section 185 of DLR Act, the said provision provides that a court shall not take cognizance of any suit, application or proceedings as regards matters provided for in schedule I of the act. The present suit has been filed by the plaintiff seeking the relief of permanent injunction. Hence, the burden lay upon the defendants to show that the relief of permanent injunction sought by the plaintiff is covered under scheduleI of the DLR Act. A closure look at scheduleI of the said Act shows that a suit for permanent injunction restraining the creation of third party interest in land is not covered under said schedule. No such clause is present under the schedule which would enable the plaintiff to seek the relief of permanent CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 9 of 19 injunction before any revenue authority seeking restrainment on creation of third party interest. In this regard, I am fortified in my observations by placing reliance of decision of the Hon'ble High Court of Delhi in Tara Chand & Anr. Vs. Kumari Rajani Jain & Ors, 150 (2008) DLT 101, wherein the Hon'ble High Court of Delhi held that pertaining to agricultural land, no remedy is available to a party before a revenue authority to seek a relief of injunction. Similarly in Vinod Kumar Sharma (Shri) Vs. Smt. Seema Sethi & ors, 2009 II AD (DELHI) 782, the Hon'ble High Court of Delhi held that a suit for permanent injunction restraining forceful dispossession of plaintiff is maintainable before a civil court and is not covered / barred by Section 185 of DLR Act.
16. This issue is, accordingly, decided in the favour of the plaintiff and against the defendants.
Issue No. III III) Whether the suit of the plaintiff is not maintainable in the present form, being hit by Section 41(h) of the Specific Relief Act, 1963? OPD.
17. The onus to prove the aforementioned issue was upon the defendants. Section 41 (h) of Specific Relief Act, 1963 (hereinafter called as SRA), states that an injunction cannot be CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 10 of 19 granted where equally efficacious remedy is available to the plaintiff and can be obtained by any other usual mode of proceeding. Hence, it was imperative upon the defendants to show, firstly, that an equally efficacious remedy was available to the plaintiff and secondly, to show that the same could be obtained by any other usual mode of proceeding. The plaintiff has filed the present suit for permanent injunction. While the defendants have averred in para no. 9 of the preliminary submissions as contained in their WS that the suit of the plaintiff is barred by the provisions of SRA Act. However, no evidence whatsoever has been adduced by the defendants to either show the equally efficacious remedy or the proceedings through which the same could have been obtained. In the absence of any evidence being led, no reliance can be placed upon bald averment contained in the WS since it is settled law that the pleadings cannot be substituted for evidence. This issue is, accordingly, decided in the favour of the plaintiff and against the defendants.
Issue No. IV IV) Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for? OPP.
18. The onus to prove the aforementioned issue was upon the plaintiff. The plaintiff by way of the present suit has sought the relief of permanent injunction restraining the defendants from CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 11 of 19 creating any third party interest in the suit property. No other relief has been claimed. Per contra, the defendants, in the joint WS, have resisted the claim of the plaintiff by stating that the plaintiff alongwith the other GPA holder i.e. V.D. Sharma had transferred the suit property by executing GPAs, affidavits, agreement to sell and purchase, receipts, Wills and possession letters, all dated 21.01.2008 in the favour of one Smt. Chander Kala, Roshni Devi, Smt. Hukum Kaur with Smt. Chander Kala and Roshini Devi subsequently transferring executing GPAs, affidavits, agreement to sell and purchase, receipts, Wills and possession letters, all dated 25.08.2008 in favour of defendants no. 2 and 3 with Smt. Hukum Kaur getting an electricity connection installed in her name.
19. Before proceeding any further, it would be pertinent to take up the issue of identity of the suit property for which the present suit has been filed. As per the version of the plaintiff, the suit property measures 2268 sq. yards, located in Khasra no. 50/1 and 50/1/5, village Bhorgar, Narela, Delhi110040 and is flanked on the east side with a 15 feet rasta, on the west side by a railway line, on the south side by the land of Lal Dora and on the north by land of others. The identity of the suit property in suits pertaining to immovable property is an essential pre requisite and the description of the property, sufficient to identify it, is mandatory as per the provisions of order VII Rule CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 12 of 19 3 CPC and resort can be taken to numbers or boundaries in a record of settlement or survey for the same. In cases where the suit property has been described in such a manner which is not sufficient to identify it or is vague, the suit of the plaintiff is liable to be dismissed. Reliance in this regard is placed on Bandhu Das Vs. Uttam Charan Pattnaia, AIR 2007 ORI 24.
"A bare reading of the above provision makes it is crystal clear that what exactly the land or the area over which the dispute exists is a question which goes into the root of the matter relating to subsistence of the case. In absence of such description in the plaint or supply of the map by annexing the same to the plaint and the evidence to the above effect, no Court would pass a decree, as such a decree would be in executable or would be rendered otiose. Even if the Court finds that the plaintiff had title and possession in respect of the suit land, in absence of proper description, as mentioned in Order 7 Rule 3, C.P.C., the decree cannot be executed."
20. Even other wise, the requirement of proper identification of the suit property is also essential since any decree passed in a suit where the suit property remains unidentified, would be a decree which cannot be executed as it would be ambiguous, uncertain and effecting the subject matter of the suit and giving rise to multiplicity of proceedings. Moreover, the burden of proving one's case always lies upon the plaintiff and therefore, an examination into the question of identification of the suit property become necessary.
CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 13 of 19
21. In the present case, the plaintiff has stated that the suit property measures 2 Bigha 5 Biswas and is located in khasra no. 50/1 and 50/1/5. However, as per the own case of the plaintiff, the suit property does not encompass the entire khasra no. 50/1 and 50/1/5, but is rather a part of the said khasra. This is amply clear from the pleadings contained in para 2 of the plaint. It is the admitted case of the plaintiff that he is not in possession of the entirety of khasra no. 50/1 and 50/1/5. Therefore, the mere mention of khasra number is not sufficient for the proper identification of the suit property. Moreover, the plaintiff has not filed any site plan to enable the proper identification of the suit property.
22. Furthermore, the plaint is entirety silent as regards any identification mark or description of the suit property for the purpose of its identification. The plaint is completely bereft of any geographical coordinates and the only pleading of the plaintiff is that the suit property is located in khasra no. 50/1 and 50/1/5, while being silent as to its exact location. The four sides with which the suit property is said to have been allegedly flanked do not, in any way, help in the identification of the suit property since the same are vague and merely contains references like the suit property is adjacent to the land of some other property in the Northern side. Such vague identification of the surrounding property does not help in identification of the CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 14 of 19 suit property properly. The case of the plaintiff in present case is not regarding the demarcation and identification of the suit property, rather it is about the plaintiff claiming to be the owner and in possession of the same and hence, by logical deduction, he ought to have been aware of its exact location.
23. In the light of the aforesaid discussion, this court has hesitancy in holding that the suit property cannot be identified on the basis of evidence or pleadings.
24. Moving further, not only is the suit property not described / identified correctly, the suit itself cannot be said to be maintainable in its current form. The plaintiff has claimed to be in possession of the suit property on the basis of a GPA executed by the erstwhile owner Dr. Ashwini Basil, whom he has claimed to be the rightful owner of the same. A conjoint reading of the plaint shows that the plaintiff has not claimed to be the owner of the suit property, but rather has claimed possessory title only, as per averments contained in para 2 of the plaint. However, the said title of the plaintiff has been rebutted by the defendants who claim to have bought the suit property from the subsequent purchaser in favour of whom the plaintiff had executed GPAs, affidavits, agreement to sell and purchase, receipts, Wills and possession letters, all dated 21.01.2008. Accordingly, it has been vehemently argued on CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 15 of 19 behalf of the defendants that owing to the failure to seek the relief of declaration, the present suit is not maintainable.
25. This court finds merit in the contention raised on behalf of the defendants since it is a settled principle of law, as reiterated in Hon'ble Supreme Court of the India in Anathula Sudhakar Vs. P. Buchi Reddy (AIR 2008 SC 2033), that in cases where the defendant has raised a genuine dispute to the title of the plaintiff, a suit for injunction simplicitor, would not lie. The same has been reiterated in Jharkhand State Housing Board Vs. Didar Singh, 2019 (17) SCC 692.
26. In the present case, the defendants have raised a genuine dispute to the title claimed by the plaintiff by adducing GPAs, affidavits, agreement to sell and purchase, receipts, Wills and possession letters vide which the plaintiff had transferred his interest to the subsequent purchaser, who, in turn, transferred to the defendants no. 2 and 3. This Court is mindful of the fact that GPA / ATS etc. do not confer title upon the person claiming such title by virtue of the said documents. However, in the present case, both the parties have based their claims on these documents only. Hence, objections raised on the basis of such documents would be relevant. Even otherwise, as held by Hon'ble High Court of Delhi in Sunil Sharma and Anr. Vs. Smt. Usha Sharma RSA no. 166/2012 DOD 14.03.2014, CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 16 of 19 while these documents do not confer title / ownership, they do confer some interest upon the person claiming under the said documents.
27. Furthermore, the suit cannot be said to be maintainable in its current form since the plaintiff has only claimed to be in possession of the suit property. However, neither the pleadings nor the evidence led on behalf of the plaintiff are in consonance with the said version of the plaintiff, the plaintiff, in para 11 of his plaint, has himself claimed that he had uninterrupted possession of the suit property till 06.02.2018 and same is in contradiction to the version stated by him para 2 of the plaint where he has claimed to be in actual and physical possession of the suit property. Moreover, the plaintiff in his cross examination dated 10.01.2020 had admitted that the defendants are in the possession of the suit property and have construction two chhappar, one pucca and the other kucha on the suit property. He has also admitted in his crossexamination that the defendants have removed unwanted plants and material / debris upon the suit property while taking possession of the same. Hence, it become apparently clear that the plaintiff is no longer in possession of the suit property at the time of filing of the suit. The plaintiff has nowhere claimed in the plaint to be the owner of the suit property. Hence, in view of the fact that the plaintiff is neither in possession nor the owner of the suit property, he CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 17 of 19 has failed to show the existence of any obligation existing in his favour warranting the grant of a perpetual injunction to him. The Plaintiff ought to have filed a suit for recovery of possession given the fact that he was not in possession of the suit property at the time of institution of the suit. However, for reasons best known to him, the present suit was filed seeking only permanent injunction in his favour for restricting the Defendants from creating any third party interest in the suit property. As discussed above, since the Plaintiff is not in possession of the suit property at the time of institution of the suit and given the fact that he has not claimed to be the owner of the suit property, as per the averments contained in para 2 of the plaint, the suit must fail since no injunction can be granted in favour of a person who is neither in possession of the suit property nor claims to be the owner of the same for there exists no obligation in favour of such person. This issue is, accordingly, decided in the favour of the defendants and against the plaintiff.
28. In light of the discussion above, it appears that the plaintiff's case is nothing but a speculative attempt by taking a chance against the defendants with the hope to succeed. The suit of the plaintiff stands dismissed owing to the failure of the plaintiff to discharge the evidentiary burden placed on him. Costs of the suit is awarded in the favour of the defendants and against the CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 18 of 19 plaintiff.
29.Decree Sheet be prepared accordingly.
30.All pending applications (if any) are hereby disposed off as not pressed.
31. File be consigned to the record room after necessary compliance.
ANNOUNCED IN THE OPEN (PRITU RAJ)
COURT ON 05.09.2023 CIVIL JUDGE (NORTH)
ROHINI/DELHI/05.09.2023
CS SCJ 349/18 Sh. Praveen Kumar Vs. Sh. Jagat Ram & Ors. Page No. 19 of 19