Delhi District Court
Smt. Sneh Lata vs Sh. Chander Shekhar Sharma on 27 April, 2019
IN THE COURT OF SHRI GAJENDER SINGH NAGAR:
ADMINISTRATIVE CIVIL JUDGE CUM ADDITIONAL
RENT CONTROLLER (CENTRAL) : DELHI
Suit No. : 94659/16
In the matter of:
Smt. Sneh Lata,
W/o Sh. S.K. Sachdeva,
R/o Portion of Plot No. 27,
Khasra No. 1303/231,
(Nidhi Colony), Near GymXI,
Rithala Extension, Rithala, Delhi.
....Plaintiff
Versus
Sh. Chander Shekhar Sharma,
S/o Sh. Salekh Chand Sharma,
R/o Portion of Plot No. 27,
Khasra No. 1303/231,
(Nidhi Colony), Near GymXI,
Rithala Extension, Rithala, Delhi.
2nd Address :
Sh. Chander Shekhar Sharma,
S/o Sh. Salekh Chand Sharma,
R/o Khasra No. 1303/231,
Near GymXI, Rithala, Delhi.
.....Defendant
Date of Institution : 15.11.2002
Date of order when reserved : 18.04.2019
Date of order when announced : 27.04.2019
Suit No. 94659/16 1/38
JUDGMENT
1. Vide this judgment, the undersigned shall decide the present suit filed for ejectment and recovery of arrears of rent qua property consisting one room, kitchen, latrine, bathroom, gallery, hand pump and one room without roof having walls on the area of 40 sq. yds., part of Plot No. 27, Khasra No. 1303/231, (Nidhi Colony) Near GymXI, Rithala Extension, Rithala, Delhi, as shown in red colour in the site plan annexed with the plaint (hereinafter referred to as "suit property"). The plaintiff also filed an application Under Order 39 Rules 1 & 2 CPC.
2. The case of the plaintiff is that she is residing in the portion of Plot No. 27, Khasra No. 1303/231, (Nidhi Colony) Near GymXI, Rithala Extension, Rithala, Delhi. It is stated that the plaintiff and her motherinlaw purchased Plot No. 27, measuring 200 sq. yds. (in two portions of 100 sq. yds.) in August, 1987 through sale documents i.e. G.P.A., Agreement to Sell, Affidavit and Receipt (there are two sets of documents, one is in the name of the plaintiff and other in the name of motherinlaw of the plaintiff of 100 sq. yds. each). It is stated that the plaintiff constructed two rooms set on the area of 50 sq. yds. only on portion of her plot, as shown in green colour in the site plan and at the same time, she constructed one room, kitchen, latrine, bathroom, Suit No. 94659/16 2/38 gallery and one room without roof having walls on the area of 40 sq. yds., as shown in red colour in the site plan.
3. It is stated that the motherinlaw of the plaintiff has sold out her plot in two parts, one measuring 40 sq. yds., as shown in yellow colour in the site plan was sold to Sh. Kirori Mal which is now in possession of Sh. Raj Pal and another 46 sq. yds. , as shown in blue colour in the site plan was sold to Sh. Mohan Punjabi through present plaintiff.
4. It is contended that when the plaintiff was in the process of construction in other room, the defendant approached husband of the plaintiff and requested to let out the same to him, than the plaintiff constructed property shown in red colour in the site plan which was in North portion of the plaintiff's plot and the same was let out to the defendant in the presence of Sh. Jawahar Lal and Sh. Gulshan Khurana. It is agreed that the defendant would pay rent @ Rs. 700/ per month for the said portion of 40 sq. yds. It is stated that on 01.01.1996 the defendant got possession of suit property and tenancy commenced. It is stated that initially, on 31.01.1996, the defendant paid a sum of Rs. 1,400/ to the plaintiff as rent for two months i.e. January, 1996 and February, 1996. It is stated that the defendant continued paying rent till June, 1996. It is stated that from 01.07.1996 the defendant was in arrears of rent. It is stated that the defendant did Suit No. 94659/16 3/38 not pay the arrears of rent. It is stated that he used to avoid payment of rent on the plea of his poor financial condition. It is stated that on 09.04.1999 when the plaintiff demanded arrears of rent, the defendant beaten the plaintiff and her husband and refused to pay rent. Thereafter, legal notice dated 13.04.1999 and 07.05.1999 were served upon the defendant, however he did not reply the same. On that an eviction petition bearing no. E137/99 dated 19.08.1999 was filed against the defendant before Ld. RCT, Delhi. It is stated that the said petition was contested by the defendant. Final arguments were heard in the said matter. It is contended that the then Ld. ARC Sh. Rajeev Mehra was pleased to say that there was a relationship of landlord and tenant between the parties. It is stated that the Court has partly dictated the judgment, however further judgment was deferred as the defendant's advocate sought adjournment. Consequently, matter was adjourned for next date, however on next date the defendant moved an application Under Order 6 Rule 17 CPC in that petition and contended that Ld. ARC has no jurisdiction to entertain that eviction petition as period of 10 years has not expired from the date of completion of construction. It was further pleaded that Ld. ARC has no jurisdiction as the area where premises in dispute is situated has not been urbanized so far. Considering those submissions, the plaintiff withdrew that petition on 02.07.2002. It is stated that the plaintiff was bonafidely contesting the eviction petition that is why the present suit has been filed with delay which is liable to be condoned. It is stated Suit No. 94659/16 4/38 that though, the defendant's tenancy was terminated by way of notices dated 13.04.1999 and 07.05.1999, however to avoid further complication, the defendant was again served with a legal notice dated 31.10.2002 U/s 106 of Transfer of Property Act. The defendant was further called upon to pay arrears of rent @ 700/ per month from 01.07.1996 till date with interest @ 18% per annum and was also asked to hand over the possession of the property. It is stated that on 28.10.2002, the defendant started putting roof on room marked as MarkA in the site plan, without consent of the plaintiff. Consequently, the matter was reported to the police, however no action has been taken by the police. It is stated that the defendant has constructed new stairs marked as MarkB in the site plan. It is stated that the defendant is under legal obligation to remove the construction. It is prayed that the defendant may be directed to vacate the suit property and to remove the roof and staircase marked as MarkA and B in the site plan and any other construction made by the defendant on suit property after the inception of tenancy. The defendant may also be directed to pay arrears of rent for the period w.e.f. 01.07.1996 till date @ Rs. 700/ per month amounting to Rs. 53,200/ plus interest @ 18% per annum as well as damages/ compensation for unlawful use and occupation of suit premises @ Rs. 2,000/ per month w.e.f. 13.11.2002 till handing over of possession of the suit property to the plaintiff.
Suit No. 94659/16 5/385. Summons of the suit and notice of the application Under Order 39 Rules 1 & 2 CPC were issued to the defendant and the defendant appeared and contested the suit as well as injunction application. The defendant has filed written statement as well as reply to the application Under Order 39 Rules 1 & 2 CPC. The application Under Order 39 Rules 1 & 2 CPC was disposed of vide order dated 16.11.2006 as the defendant has made statement that he will not create third party interest in respect of the suit property during the pendency of the present suit, on which attorney of the plaintiff made statement that the application Under Order 39 Rules 1 & 2 CPC may be disposed of, accordingly.
6. In the written statement to the plaint, it is contended by the defendant that the father of the defendant had purchased the land measuring 40 sq. yds. from Sh. Ram Kumar vide Agreement to Sell, General Power of Attorney, Special Power of Attorney, Receipt, Will and Affidavit, all dated 12.05.1992. It is stated that the defendant has constructed the house with his own expenses through one contractor namely Sh. Sikander Mistri (mason) and incurred an expenses of Rs. 5,000/ during the period dated 20.11.1995 to 27.12.1995. It is contended that there is no relationship of landlordtenant between the parties. It is contended that this Court has no jurisdiction to try the present suit, only Revenue Court has jurisdiction to try the present suit under Delhi Land Reforms Act as no notification U/s 507 D.M.C. has Suit No. 94659/16 6/38 been issued to urbanise the land. It is contended that there is no Khasra No. 1303/231 in Village Rithala as mentioned in the alleged documents of the plaintiff. It is stated that Village Rithala has last Khasra No. 1232. It is contended that the land bearing Khasra No. 182 on which the property in question situates is a waste land bounded by West - portion in possession of the plaintiff, Khasra No. 1303, Plot No. 27 and Filthy Land; East - Passage; South - House of Sh. Raj Pal, Khasra No. 1303, Plot No. 27 and Filthy Land and North - GymXI, Khasra No. 1203. It is stated that the said place is vested in Gaon Sabha in accordance with certified copy of Khatoni for the year, 1979 80 dated 23.09.1999. It is contended that the land is cultivated waste land on which the Delhi Land Reforms Act applies, hence Civil Court has no jurisdiction to try the present suit as per bar of Section 185 of the Delhi Land Reforms Act. It is stated that since the land in question belongs to Gaon Sabha, only Bhumidhar, Assami, or Gaon Sabha has right to file the suit in the Court of Land Revenue Assistant and not the plaintiff being an unauthorized occupant. It is stated that the suit for recovery of rent for more than three years against the defendant is barred by time. It is contended that the plaintiff has no right to file the present suit against the defendant. It is contended that the documents relied upon by the plaintiff i.e. Agreement Deed, General Power of Attorney, Receipt and Affidavit dated 25.08.1987 are null and void U/s 18 of Delhi Land Reforms Act. It is contended that the plaint has not been properly verified Under Order 6 Rule 15 (2) CPC. It is Suit No. 94659/16 7/38 contended that the land occupied by the plaintiff and the defendant as well as neighbours has been occupied illegally as the land vested in Gaon Sabha. It is contended that the alleged Agreement Deed, General Power of Attorney, Receipt and Affidavit dated 25.08.1987 executed by Sh. Bahadur Chand in favour of the plaintiff do not disclose as to how Sh. Bahadur Chand had inherited the land in dispute. It is contended that the stamp papers of alleged documents of the plaintiff do not show the address, license number, name of the stamp vendor which raises doubt that if, the same were purchased on the same date when it is purported to be purchased. It is contended that Agreement Deed of an immovable property does not itself create any interest in the property in question. It is contended that in the previous eviction petition, the husband of the plaintiff has stated that they have 100 sq. yds., out of which he has sold land measuring 40 sq. yds and they are residing on the portion of 50 sq. yds. It is contended that in the previous case, husband of the plaintiff has stated that plot in question pertains to motherinlaw of the plaintiff which was sold by the plaintiff. It is contended that husband of the plaintiff has told a lie as in the document executed in favour of Sh. Kirori Mal, the present plaintiff has shown herself owner qua that portion of land.
7. Replication to the written statement of the defendant was filed by the plaintiff. The plaintiff has denied the allegations of the defendant and has reiterated the same facts as averred in the plaint.
Suit No. 94659/16 8/388. Vide order dated 07.05.2007, on the basis of pleadings of the parties the following issues were framed :
i) Whether the plaintiff is owner of the suit property in question? OPP.
ii) Whether the plaintiff is entitled for recovery of arrears of rent? OPP.
iii) Whether the plaintiff does not have any locus standi to file the present suit as the plaintiff has acquired the property by way of GPA and other documents? OPD.
iv) Whether the alleged documents dated 25.08.2007 are admissible in evidence, being unregistered? OPP.
v) Whether the plaintiff has not properly valued the suit for the purpose of Court Fees? OPD.
vi) Whether the plaint has been properly verified? OPP.
vii) Whether the suit of the plaintiff for recovery of damages is within time? OPP.
viii) Whether the Civil Court has no jurisdiction to try the present suit and Revenue Court has jurisdiction to try the suit under the bar of Section 185 of DLRA? OPD.
ix) Whether the defendant has raised any construction over the property with his own expenses for the period 20.11.1995 to 27.12.1995, if so, its effects? OPD.
Suit No. 94659/16 9/38x) Whether there exists any relationship of landlord and tenant between the parties? OPP.
xi) Whether the suit property is situated on acquired land vide award dated 20.04.1980, if so, its effects? OPD.
xii) Whether the suit is bad on account of nonjoinder of necessary parties? OPD.
xiii) Whether the plaintiff is entitled for recovery of possession, as prayed for? OPP.
xiv) Relief.
9. In order to substantiate her case, the plaintiff examined Sh. Ravi Shankar Kumar, LDC/ Mauza Clerk from Record Room Civil, Room No. 312, Tis Hazari Courts Complex, Delhi; herself as PW1; Sh. Gulshan Kumar as PW2 and Sh. S.K. Sachdeva (husband of the plaintiff) as PW3.
10. In rebuttal, the defendant examined himself as DW1; Sh. Pawan Kumar as DW2 and Sh. Amit Kumar, Kanoongo from Office of LAC (N/W), Kanjhawala, Delhi as DW3.
11. Sh. Ravi Shankar Kumar, LDC/ Mauza Clerk from Record Room Civil examined on behalf of the plaintiff on 09.09.2009. The said witness has brought the summoned record i.e. Eviction Petition bearing no. 137/1999, titled as "Smt. Sneh Lata Vs. Sh. Chander Suit No. 94659/16 10/38 Shekhar", Goshwara No. 304/ Rent Controller which was dismissed as withdrawn by the Court of Sh. Rajeev Mehra, the then Ld. ARC, Delhi. It is stated that there are no property documents in original of Smt. Sneh Lata in the summoned record i.e. photocopy of General Power of Attorney, copy of Affidavit, copy of Receipt, copy of Agreement Deed, all dated 25.08.1987. In crossexamination of the said witness, it has been observed by the Court that this witness has been summoned to produce the original record of the aforesaid eviction petition and he is not a witness. The statement of this witness has been recorded on Oath, not because he is a witness, but because he has made a submission that the original documents of the plaintiff are not on record, hence this witness cannot be crossexamined.
12. PW1/ plaintiff Smt. Sneh Lata has deposed almost on the same lines as averred in the plaint and proved on record site plan which is Ex. PW1/1; copies of documents of ownership in her favour are Ex. PW1/2 (Colly); copy of G.P.A. of previous owner Sh. Bahadur Chand is Ex. PW1/3; copies of documents of ownership of her motherinlaw Smt. Kaushlya Devi are marked as MarkA (Colly); copies of documents of 40 sq. yds. executed by motherinlaw in her favour are marked as MarkB (Colly) and copies of documents of ownership of 40 sq. yds. executed by her in favour of Sh. Kirori Mal are marked as MarkC (Colly); copy of telephone bill in the Suit No. 94659/16 11/38 name of Sh. Raj Pal is Ex. PW1/7; copies of documents executed by motherinlaw in favour of Sh. Mohan Punjabi are marked as MarkD (Colly); copy of Khatauni of Khasra No. 1303/231 and 232 is Ex. PW1/9 and its translation is Ex. PW1/10; legal notice dated 01.10.2002 is Ex. PW1/11; postal receipt, U.P.C. receipt and Courier receipt are Ex. PW1/12 to Ex. PW1/14; the returned envelop of registered post with refusal report is Ex. PW1/15 and returned courier envelop is Ex. PW1/16; copy of complaint dated 28.10.2002 is Ex. PW1/17 and copy of complaint sent to the Ld. C.M., Delhi is Ex. PW1/18; copy of notice sent by VIG. (N/W) in respect of the complaint dated 31.10.2002 is marked as MarkE; certified copy of eviction petition alongwith ordersheets etc. are Ex. PW1/20 (Colly); copy of Election ICard of husband of this witness is Ex. PW1/21; copy of acknowledgment of Election Commission in respect of Sh. Sikandar Mistri is Ex. PW1/22; certain photographs with negatives are Ex. PW1/23 (Colly); photographs with negatives showing the abadi in the said area are Ex. PW1/24 (Colly); certified copy of notification dated 22.04.1982 is Ex. PW1/25; written statement filed by the defendant before the Court of Ld. ARC is Ex. PW1/26; certified copy of statement of Sh. Chander Shekhar in eviction before the Court of Ld. ARC is Ex. PW1/27; certified copy of order dated 06.02.2002 passed by the Court of Ld. ARC is Ex. PW1/28; certified Suit No. 94659/16 12/38 copies of receipts of Building Material filed by the defendant in eviction petition is Ex. PW1/29 (Colly); copy of Ration Card of this witness is Ex. PW1/30; copy of LIC of her husband is Ex. PW1/31; copy of last paid telephone bill is Ex. PW1/32 and copy of plan of PocketB9, Sector5, Rohini is Ex. PW1/33. It is to be noted that the documents, Ex. PW1/9, Ex. PW1/10, Ex. PW1/17, Ex. PW1/18, Ex. PW1/20, Ex. PW1/23 to Ex. PW1/28 are objected to mode of proof being certified copies/ received copies. In her cross examination it is stated by her that she purchased the suit property from Sh. Bahadur Chand. It is stated that she does not asked Sh. Bahadur Chand regarding the chain of documents of ownership as to how he became owner of the suit property which he sold to her at the time of purchase of the suit property. It is voluntarily stated that she purchased the suit property through her fatherinlaw who was friend and negotiated with him on her behalf. She could not tell, if the suit property falls within Municipal limits. It is stated that she has no document to show regarding allotment of municipal number of the suit property. It is stated by her that the defendant was given on rent an area measuring 40 sq. yds. It is stated by her that the other 40 sq. yds. which was purchased by her from her motherinlaw Smt. Kaushalya Devi was sold by her. It is stated by her that the suit property as well as the property under her possession was constructed simultaneously having same height and the same building material was also used. It is Suit No. 94659/16 13/38 stated that the suit property is having a gate between both the portions opening towards her portion. It is accepted by her that no rent receipt was issued to the defendant as they were having cordial relation with his family. She could not tell, if the suit property has been acquired by the Government, or not. It is accepted by her that no permission was sought from the Government authority before raising the construction over the suit property. It is stated by her that no documents were registered before the SubRegistrar concerned. It is stated by her that the earlier petition filed before the then Ld. ARC was dismissed on technical grounds. It is accepted by her that she has not received any amount of rent from the Court of Ld. ARC. It is stated by her that she has filed the present suit after dismissal of the petition before Ld. ARC which includes recovery of arrears of rent. It is stated by her that at the time when construction was raised electrical fitting in the said two portions were common, but for the water two hand pumps were installed at that time. It is stated by her that four units were constructed by her and her motherinlaw in 200 sq. yds. of land including the suit property in the October, 1995 till December, 1995. It is stated that in some portion brick and mud were used as building material and in some portion brick and cement were used. It is stated by her that she has not filed any document on record to show that she had inducted the defendant as a tenant and handed over the possession of the suit property to him. It is voluntarily stated by her that wife of the defendant was her friend and therefore, nothing was in writing Suit No. 94659/16 14/38 between them. It is stated that she knew the defendant and his family since 1990 as they were neighbour in Sector5, Rohini, Dehi and had good visiting terms. It is accepted by her that the construction at 100 sq. yds., out of 200 sq. yds. of two units was raised through Sh. Sikander Mistri, Sh. Parmod Singh and one labour whose name might be Sh. Harjinder. It is denied by her that 40 sq. yds. of land was purchased by the father of the defendant in the year, 1992, or if they were in possession of the same and raised construction over it out of their own funds. It is accepted by her that the suit property and property under her possession are having separate gates. It is voluntarily stated that since the properties have two sides opening, therefore the same are having separate entry gates, however she is having a gate in the centre opening in the portion under her possession. It is stated by her that as on today, she is the owner of 100 sq. yds. of land in 27, Rithala Extension in Khasra No. 1303/231/232. It is stated by her that the defendant had raised construction at the first floor level over the suit property. It is voluntarily stated by her that when she came to know about the same, she filed a police complaint in this regard. It is stated that she exhibited the said complaint as Ex. PW1/34.
13. PW2 Sh. Gulshan Khurana deposed that the plaintiff as well as the defendant are known to him for the last many years. It is stated that in the month of November, 1995 the defendant approached Suit No. 94659/16 15/38 him to arrange rented premises for his residential purposes. It is stated that he got the plaintiff and his attorney introduced to him as the plaintiff was constructing the suit premises at that time. It is stated that since at the relevant time the construction was incomplete, therefore, the suit premises could not be let out to him, however, the premises was let out to the defendant on 01.01.1996 at the rate of rent of Rs. 700/ per month in his presence and in the presence of Sh. Jawahar Lal, the fatherinlaw of the plaintiff. It is stated that the defendant shifted in suit premises on the same day alongwith his family. In his crossexamination, it is stated by him that he is doing work of property dealing, however he is also having Khurana Medical Store in Ashok Vihar, Delhi. It is stated by him that he first time introduced the plaintiff and the defendant to each other when he alongwith the defendant went to the house of the plaintiff on 01.01.1996. It is accepted by him that FIR No. 70/2012, P.S. Vijay Vihar, U/s 427/448/34 IPC has been filed against him. It is voluntarily stated that the same is false and fabricated case against him.
14. PW3 Sh. S.C. Sachdeva (husband of the plaintiff) has deposed verbatim as of the plaintiff and has relied upon the same documents. In his crossexamination, it is stated by him that he has not come to the Court to depose as Attorney of the plaintiff, but in his individual capacity. It is stated by him that he is property dealer for last one year and before that, he was a private typist in Tis Hazari Suit No. 94659/16 16/38 Courts. It is stated by him that he is 12th passed and has prepared his affidavit, Ex. PW3/A himself. It is accepted by him that many houses are there in the Colony Vijay Vihar. He does not know the house number of Sh. Bahadur Chand. It is stated by him that since he has seen the house of Sh. Bahadur Chand, however he could visit his house without knowing the exact house number. It is stated by him that he has seen the documents related to Sh. Bahadur Chand and the copies of the same are on record. It is stated by him that he had not verified from any Government Agency about the ownership of Sh. Bahadur Chand with respect to the property, he has purchased from him. It is denied by him that Sh. Bahadur Chand was not owner of the property no. 27, measuring 100 sq. yds., out of Khasra No. 1303/231, 232 at Rithala Extension, Delhi of which he executed document in favour of wife of this witness. It is accepted by him that the documents, Ex. PW1/4, PW1/5, PW1/6, PW1/8, PW1/19 mentioned in his evidentiary affidavit have already been deexhibited being photocopies and marked as MarkA to MarkE in the examinationinchief of PW1/ plaintiff. It is stated by him that suit property lies under Khasra No. 1303/231232. It is stated by him that he has filed Khatoni in this regard which is Ex. PW1/9 and its translation is Ex. PW1/10. It is stated by him that Khatoni, Ex. PW 1/9 pertains to year, 196465. It is stated by him that as on today, they have papers pertains to 100 sq. yds., however they are in possession of 90 sq. yds. in Plot No.27, Rithala Extension, Rithala Village. It is Suit No. 94659/16 17/38 stated by him that his wife sold 40 sq. yds. in Plot No. 27 to Sh. Kirori Mal. It is voluntarily stated by him that the said property was purchased by his wife from his mother. He could not tell the valuation of the suit property as on today. It is stated by him that at the time when property was purchased there was no circle rate prevailing in the area, however they came into force on 200607. He could not tell whether any application U/s 15 (1) of DRC Act has been filed in the previous eviction petition between the parties. Further, it might be possible that the application was dismissed by the Court on the ground that no relationship of landlord and tenant was established between the parties. It is stated by him that it is a matter of record. It is stated by him that the area of 90 sq. yds. which is in his possession is completely constructed area. It is voluntarily stated by him that out of which he is in possession of 50 sq. yds and he has given 40 sq. yds. on rent to the defendant. It is accepted by him that common wall between the area in possession of the plaintiff and the defendant is of 9 inch wide. It is accepted by him that roof of his house is supported by 4 1/2 inches wall and roof of the defendant is supported by another 41/2 inches wall. It is stated by him that house of the defendant consists of two rooms on the ground floor and one room on the roof. It is stated by him that as on today, he is not residing in abovesaid 50 sq. yds. area and has shifted to Sector02, Rohini in the year, 2005. This witness could not tell whether Sh. Sikander Mistri and Sh. Pramod Singh are alive, or not. It is stated by him that he does not know, if the Suit No. 94659/16 18/38 area in his possession as well as in possession of the defendant falls in Khasra No. 182, Village Rithala which is land of Gram Sabha. It is stated by him that he has no knowledge whether the land was acquired by Government and award was passed in 1980.
15. It is to be noted that an evidentiary affidavit of PW Sh. Jawahar Lal has also been filed on record, however the said witness has never come to the Court to depose on behalf of the plaintiff.
16. No other plaintiff's witness was examined and plaintiff's evidence was closed.
17. In rebuttal, DW1/ defendant Sh. Chander Shekhar has deposed almost on the same lines as averred in the written statement and proved on record certified copies of Agreement to Sell dated 12.05.1992, General Power of Atttorney dated 12.05.1992, Special Power of Attorney dated 12.05.1992, Receipt dated 12.05.1992, Will dated 12.05.1992 and Affidavit dated 12.05.1992 which are Ex. DW 1/1 to Ex. DW1/6, respectively; site plan is Ex. DW1/7; copy of Ration Card is Ex. DW1/8; telephone bill is Ex. DW1/9 and Driving License of his son namely Sh. Sachin Sharma is Ex. DW1/10. It is to be noted that the documents Ex. DW1/1 to Ex. DW1/6 are objected to on behalf of the plaintiff stating that this witness is neither Suit No. 94659/16 19/38 executant, nor the witness in the present documents and as such these documents cannot be proved by this witness. In his cross examination, it is stated by him that Sh. Raj Pal is not residing adjacent to his house, but his son is residing there. It is stated that Sh. Raj Pal used to reside on the right side of his house. It is voluntarily stated that Sh. Raj Pal came after him. It is stated that there is a gym on the left side of his house. It is stated that the plaintiff resides on the back side of his house. This witness has shown Ex. PW1/1. It is accepted by this witness that MarkA to MarkB is road. It is stated by him that portion shown in red colour is in his possession and portion shown in green colour is in possession of the plaintiff. It is stated that the partition wall between his portion and portion of the plaintiff is 9 inch. It is voluntarily stated that the same is common wall. A question was put to this witness whether there is any gate in the common wall to which it is stated by him that at the time of construction, there was a gate on the side of the plaintiff and his side was covered by plywood. It is accepted by him that ceiling of the ground floor is supported by the said common wall on his side. It is stated that portion in his possession is admeasuring 16' X 22'. It is stated that he is not aware about the area of the portion in possession of the plaintiff and Sh. Raj Pal. It is stated that he is not aware of Khasra Number of the gym. It is stated that Khasra Number of his plot is 1303/231/182. It is denied by him that his plot is having number 27. It is stated by him that it is a matter of record, if summons Suit No. 94659/16 20/38 of Court were received by him at Plot No. 27. It is denied by him that name of his father has not been mentioned in the Ration Card as his father never resided with him. It is stated by him that the plaintiff did not use to reside near him at Sector5, Rohini. It is denied by him that since he used to reside at Flat No. 95, First Floor, Block B9, Sector5, Rohini and the plaintiff used to reside at Flat No. 145, Ground Floor, Block B9, Sector5, Rohini, he had family terms with the plaintiff. It is stated by him that he knew the husband of the plaintiff since 1995 when he came to the suit property. It is stated by him that he does not know Sh. Ram Kumar, however his father knows him since 1992. It is stated that he does not know whether his father has seen previous chain of documents prior to purchase of plot. He could not tell, whether his father has taken any previous document of the said plot prior to purchase of the same. It is stated that he does not accompany his father at the time of execution of these documents, however Sh. Pawan Kumar accompanied him. It is denied by him that document, Ex. DW1/1 to Ex. DW1/6 are forged and fabricated documents and prepared by him after filing of petition before Ld. ARC. It is stated that he is residing in the suit property since 27.12.1995. It is denied by him that he has written property no. 182 in all the documents, Ex. DW1/8 to DW1/10 as per his own violation. It is voluntarily stated by him that the same is obtained by him from SDM Office, Kanjhawala Courts after inquiry. It is accepted by him that documents, Ex. DW1/8 to Ex. DW1/10 does not bear the number Suit No. 94659/16 21/38 1303/231. It is accepted by him that a petition between him and the plaintiff was proceeded in the Court of Ld. ARC. It is accepted by him that a Local Commissioner was appointed by the Court.
18. DW2 Sh. Pawan Kumar deposed that he is engaged in tailoring work since long and he met Late Sh. Salekh Chand Sharma (father of the defendant) in the year, 1990 at Iqabal Tailoring Centre, Tilak Nagar, Delhi who was also engaged in a tailoring work. It is stated that in the year, 1992 Late Sh. Salekh Chand Sharma had talked to him regarding purchasing of the plot at Rithala Extension measuring 40 sq. yds. It is stated that he accompanied Late Sh. Salekh Chand Sharma to Tis Hazari Courts during the execution of documents pertaining to the purchase of plot at Rithala Extension and Late Sh. Salekh Chand Sharma had given consideration amount of Rs. 16,000/ to Sh. Ram Kumar in his presence. It is stated that he has also visited at the abovementioned plot after purchasing the same by Late Sh. Salekh Chand Sharma and even visited at the said plot after the completion of the construction. It is stated that he know Sh. Chander Shekhar as he is son of Late Sh. Salekh Chand Sharma. In his crossexamination, it is stated by him that he met father of the defendant at Tilak Nagar where he used to work as a Tailor. It is stated that payment was made in the Court. It is stated that it was about of Rs. 16,000/. It is stated by him that the same was might be made by way of cash, however he does not remember the date, but it Suit No. 94659/16 22/38 was in the year, 1990, or 1992. He could not tell the month, though it is stated that it was made during summers. It is stated by him that Court was open and not closed for summer's vacation when the documents were made. It is stated by him that he met Sh. Chander Shekhar might be in 1990, or 1992. It is stated by him that he met last time Sh. Salik Chand Sharma in Tilak Nagar in the year, 1990, or 1992. He could not tell whether any photographs of Sh. Salik Chand, or the seller was pasted on the documents prepared in the Court. He could not tell whether Sh. Salik Chand never resided in Delhi. He could not tell who is Sh. Ram Kumar.
19. Sh. Amit Kumar, Kanoongo from Office of LAC (N/W), Kanjhawala, Delhi has brought the summoned record i.e. original award no. 19/ 198081 of Village Rithala and possession proceedings dated 01.05.1980 and 01.08.2012. It is stated that there is no record available in respect of land acquisition of Khasra No. 1303/ 231 and 1303/ 232 of Village Rithala and the award is pertaining to Khasra No. 1303/ 231/ 182 and 1303/ 231/ 183 of Village Rithala. He has brought the certified copies of the award and possession proceedings in respect of Village Rithala, which are Ex. DW3/A (Colly) (running into 55 pages) and Ex. DW3/B (Colly) (running into 16 pages), respectively. In his crossexamination, it is stated by him that he could not say without seeing the record whether any other award in respect of Village Rithala was passed by LAC (N/W), or not. This Suit No. 94659/16 23/38 witness has no knowledge whether the actual possession of the awarded land as detail in Ex. PW3/A was taken by the Government on the spot, or not.
20. No other defendant's witness was examined and the defendant's evidence was closed.
21. The Court has heard both the parties and has perused the record.
22. The issue wise findings are as follows: ISSUE NO. 4: Whether the alleged documents dated 25.08.2007 are admissible in evidence, being unregistered? OPP.
23. The onus to prove this issue was upon the plaintiff. It is a matter of record that after framing of issues in the present matter, the said documents were impounded and were registered, thus deficiency has been cured. Hence, the said documents are admissible in evidence. Thus, this issue is decided in favour of the plaintiff and against the defendant.
Suit No. 94659/16 24/38ISSUE NO. 5: Whether the plaintiff has not properly valued the suit for the purpose of Court Fees? OPD.
24. The onus to prove this issue was upon the defendant, however, the defendant has not led any evidence in this regard. The defendant could not prove the value of the suit property at the time of filing of the present suit, or its circle rate at that time. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 6: Whether the plaint has been properly verified? OPP.
25. The onus to prove this issue was upon the plaintiff. The plaintiff in her plaint has categorically stated that paras no.01 to 12 are correct and paras no.13 to 15 are true and correct on the basis of information received. It is clear from the verification that paras no.01 to 12 were stated to be correct by the plaintiff as per her own knowledge and paras no.13 to 15 are accepted as true and correct as per information received. Furthermore, it is well settled principal of law that the procedure is the hand maid in the administration of justice and the technicalities of the procedure should not come in the way of Suit No. 94659/16 25/38 the disposal of the case on merits. With these observations, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 8: Whether the Civil Court has no jurisdiction to try the present suit and Revenue Court has jurisdiction to try the suit under the bar of Section 185 of DLRA? OPD.
26. The onus to prove this issue was upon the defendant. It is not disputed that both the parties are claiming property in question to be residential and all the adjoining properties are also residential. It is admitted position that the suit property lies in the area which is no more remains agricultural land as there were residential plot all over that area i.e. unauthorized colony has come into existence at that place. Thus, suit land ceased to be agricultural land and was not being used for purpose contemplated under Delhi Land Reforms Act. In such circumstances, disputes of plot holders cannot be decided by Revenue Authorities, hence jurisdiction of Civil Court to entertain suit qua such land is not barred U/s 185 of Delhi Land Reforms Act. Furthermore, even the present suit is one wherein the plaintiff is claiming defendant to be her tenant. If, the plaintiff would be able to prove that the defendant is her tenant, then there would be no question of determining the title of the plaintiff qua property in question.
Suit No. 94659/16 26/38Reliance being placed upon judgment delivered in case titled as Harpal Singh Vs. Ashok Kumar & Anr., (2018) 11 SCC 113. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 9: Whether the defendant has raised any construction over the property with his own expenses for the period 20.11.1995 to 27.12.1995, if so, its effects? OPD.
27. The onus to prove this issue was upon the defendant. The mason and laborer who has constructed the house were not examined before the Court. Further, no bill of any such construction has been proved as per law by the defendant, hence the defendant has failed to prove the said fact. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 12: Whether the suit is bad on account of nonjoinder of necessary parties? OPD.
28. The onus to prove this issue was upon the defendant, however, the defendant has not led any evidence in this regard.
Suit No. 94659/16 27/38Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
ISSUE NO. 1, 2, 3, 10 AND 13:
i) Whether the plaintiff is owner of the suit property in question? OPP.
ii) Whether the plaintiff is entitled for recovery of arrears of rent? OPP.
iii) Whether the plaintiff does not have any locus standi to file the present suit as the plaintiff has acquired the property by way of GPA and other documents? OPD.
x) Whether there exists any relationship of landlord and tenant between the parties? OPP.
xiii) Whether the plaintiff is entitled for recovery of possession, as prayed for? OPP.
29. The onus to prove the issues no.1, 2, 10 and 13 were upon the plaintiff, however the onus to prove the issue no.3 was upon the defendant. The present suit has been filed qua ejectment of the defendant alleged to be a tenant qua Plot No. 27, Khasra No. 1303/231, (Nidhi Colony) Near GymXI, Rithala Extension, Rithala, Delhi. The contention of the plaintiff is that she purchased the land in question from one Sh. Bahadur Chand by way of GPA and other Suit No. 94659/16 28/38 documents. Per contra, it is claimed by the defendant that 40 sq. yds. which is in his possession was infact purchased by his father from one Sh. Ram Kumar by way of GPA etc. It is contended on behalf of the defendant that the land which is in possession of the defendant is in Khasra No. 182 which was a waste land. It is stated by the defendant that Village Rithala has last Khasra No. 1232 only.
30. The plaintiff has filed GPA and other documents in her favour in the Court which were not stamped, however the same were impounded by the Court and later on stamped. The defendant acted cleverly and did not file original documents before the Court, rather filed certified copies of the documents and called a witness Sh. Ravi Shankar Kumar from Record Room Civil with the file of eviction petition bearing no. 137/1999 wherein his original documents were available. Be that as it may, both the parties are claiming right over the piece of land on the basis of different sets of GPA, Agreement to Sell etc i.e. one in favour of the plaintiff which was executed on 25.08.1987 by Sh. Bahadur Chand qua Plot No. 27, measuring 100 sq. yds., out of Khasra No. 1303/231, 232, situated at Rithala Extension, Delhi, while the other one is executed in favour of the father of the defendant in respect of area measuring 40 sq. yds. in Khasra No. 1303/231. Apparently, none of the document is talking about Khasra No. 182.
Suit No. 94659/16 29/3831. It is to be noted that certified copies of the award qua acquisition of land situated in Rithala Village is also on record. The award is bearing no. 19/8081 as per which notification qua acquisition of land was issued on 11.01.1967. This award shows that Khasra in Village Rithala started from 1303/202/153. This award also shows that Khasra No. 1303/231/182 and 1303/232/183 both were classified as Banjar Kadim. It is also apparent from this order of land acquisition dated 25.04.1980 that land comprising in Khasra No. 1303/231/182 belongs to Delhi Gandhi Samarak Nidhi, Raj Ghat, New Delhi. Their contention in the claim to LAC was to get the land released from the acquisition and claims compensation at reasonable rate. There were a number of shareholders in the land comprising Khasra No. 1303/232 i.e. one Sh. Mahinder Pal, Sh. Chander Pal, S/o Prithi; Sh. Ran Singh, Ami Singh, S/o Sh. Shiv Raj; Chaudhary Avter Singh and Sh. Juglal, S/o Sardar Singh. Thus, from these documents, it is apparent that Khasra No. 1303/231/182 and 1303/232/183 were acquired by the Government way prior to 1980. Neither the plaintiff, nor the defendant could prove that the persons from whom they are claiming rights over the property in question were themselves having any rights over the property in question, or not. Furthermore, it is also established that the land has already been acquired by the Government, thus the GPA and other documents filed by either of the party could not establish their proprietary right qua property in question.
Suit No. 94659/16 30/3832. At this juncture, the observations made by Hon'ble High Court of Delhi in case titled as Deep Chand Vs. Kulanand Lakhera & Ors., 2007 (95) DRJ 683 became very relevant which is as under : "78. XXX 2/3 rd population of Delhi is residing in such kind of unauthorized colonies. There are no approved lay out plans. As in the instant case, documents of title are unregistered agreements to sell and a power of attorney. It is a nightmare to identify 100 sq. yards to 150 sq. yards of land in these densely populated areas. In the instant case, the land comprised is 100 sq. yds. As per the parties, it was carved out of land comprised in Khasra No. 321 of Village Ghonda Gujran Khadar, Illaqa Shahdara.
79. In Delhi, land comprised in a khasra generally admeasures 4 bigha and 16 biswa i.e., 4880 sq. yds. With gross unauthorized colonization, the permanent points of most of the villages have been destroyed. It is impossible to demarcate the original khasras. If original khasra cannot Suit No. 94659/16 31/38 be demarcated, who possibly can demarcate 100 sq. yards land comprised in a khasra.
Further, which part of the khasra stands bifurcated resulting in 100 sq. yds. Land being carved out. Since everything was done illegally, the revenue officials have not cut the titama at site, much less reflect the same on the revenue map of the village.
80. Unauthorized colonization in Delhi and disputes relating to possession of plots therein are virtually crippling civil courts at the district (junior division) level in Delhi.
Nobody has any clue as to how a dispute pertaining to identity of a plot can be decided.
81. As in the instant dispute, where two parties allege with reference to 2 different numbers that the site in question belongs to them, I can think of no satisfactory solution other than to prepare the shajra of the entire revenue estate at the same scale as per the lay out plan of the illegal colony and thereafter super impose the latter on to the former to identify as to which plot falls at Suit No. 94659/16 32/38 which part of the revenue estate. But this would require the availability of an authentic copy of the approved lay out plan of the colony. Unfortunately, none exists."
33. In view of the abovestated circumstances and discussion, it can be safely held that none of the party could prove their proprietary right over property in question. It is to be noted that there is no rent deed, or rent receipt issued by the plaintiff qua tenancy in favour of the defendant. Though, it is claimed by PW2 Sh. Gulshan Kumar that he introduced the defendant to the plaintiff for taking the property on rent. Per contra, it is stated on behalf of the plaintiff herself that the defendant was known to her even previously as they were neighbours in Sector5, Rohini and due to that no written documents were executed between them. Due to the lack of any reliable piece of evidence qua creation and continuance of tenancy between the plaintiff and the defendant, the undersigned is of the considered opinion that no landlordtenant relationship has ever existed qua property in question between the plaintiff and the defendant and nonexistence of such a relationship is so probable that a prudent man ought, under the circumstances of the present case, to act upon the supposition that it does not exist.
34. Thus, it can be safely held that none of the party is having Suit No. 94659/16 33/38 any proprietary right qua property in question. Secondly, the plaintiff has failed to prove the landlordtenant relationship between her and the defendant. Hence, it is held that the plaintiff does not have any locus standi to file the present suit.
35. It is to be noted that when none of the party is having proprietary right over the property in question, thus their rights would be determined on the basis of previous possession. Since both the parties are having separate exclusive possession of their part of the property, hence the same cannot be disturbed without due process of law.
36. The only point of argument heavily stressed upon by the plaintiff is that there is a common wall between houses of the plaintiff and the defendant. Further, there is a gate in that wall which is opening from the portion of the plaintiff towards the portion of the defendant. The undersigned has considered this argument. Having a common wall between two adjoining houses is very common in Delhi. It is also admitted by the plaintiff that the common wall is of 9 inches, out of which 41/2 inches has used by the plaintiff to put the weight of their roof and remaining 41/2 inches used by the defendant. Thus, having common wall in between two houses of the plaintiff and the defendant does not show that they are part of the same property.
Suit No. 94659/16 34/3837. Having a gate between two houses is definitely uncommon and the same also raised some sort of doubt whether both the properties are a single unit, or not. However, in view of the above stated observations of this Court, it is quite clear that none of the party could have established their proprietary rights qua property in question and there is no landlordtenant relationship between the parties. In such circumstances, just because there is a gate between two houses, it cannot be held that they are part of the same property and even that property belongs to the plaintiff only and not to the defendant. It is to be noted that there are separate septic tanks of the properties. Hand pumps for the water and electricity connection are also different. In these circumstances, only existence of a gate between two houses would not prove that the same are single unit.
38. With these observations, these issues are decided against the plaintiff and in favour of the defendant.
ISSUE NO. 11: Whether the suit property is situated on acquired land vide award dated 20.04.1980, if so, its effects? OPD.
39. The onus to prove this issue was upon the defendant. It has already been observed that the suit property is situated on acquired Suit No. 94659/16 35/38 land, hence none of the party can claim proprietary right/ ownership qua property in question. Thus, this issue is decided against the plaintiff and in favour of the plaintiff.
ISSUE NO. 7: Whether the suit of the plaintiff for recovery of damages is within time? OPP.
40. The onus to prove this issue was upon the plaintiff. The present suit was filed by the plaintiff on 15.11.2002 wherein the plaintiff claimed arrears of rent from 01.07.1996. The contention of the defendant is that arrears of rent only for the period of three years prior to filing of the present suit can be recovered by the plaintiff and not the arrears of rent prior to that. Thus, it is contended that in the present matter, arrears of rent prior to 15.11.1999 cannot be claimed by the plaintiff.
41. This contention of the defendant was opposed by the plaintiff on the ground that prior to filing of the present suit, the plaintiff has filed an eviction petition U/s 14 (1) (a) of DRC Act wherein she also claimed arrears of rent. The said eviction petition was filed on 19.08.1999, however the same was withdrawn on 02.07.2002 as it was prayed before the Court that no eviction petition Suit No. 94659/16 36/38 before Ld. ARC under DRC Act can be filed since 10 years have not been elapsed since completion of construction of house, further, the area where property was situated has not been urbanized.
42. It is contended on behalf of the plaintiff that since she was prosecuting the previous eviction petition under bonafide mistake with due diligence wherein evidence was led, final arguments were also heard and thereafter, it was realized by the plaintiff on moving an application for amendment on behalf of the defendant that the Court of Ld. Additional Rent Controller was not having jurisdiction to entertain the matter, on that without wasting any time, the said petition was withdrawn by the plaintiff on 02.07.2002 and subsequently, the present suit was filed on 15.11.2002, hence the period during which the said eviction petition was pending may be excluded.
43. It is pertinent to note here that it has already been held by this Court that there exists no relationship of landlordtenant between the parties, hence the previous petition cannot be held to be a bonafide one, thus the plaintiff has no right to claim recovery of damages from the defendant. With these observations, this issue is decided against the plaintiff and in favour of the defendant.
Suit No. 94659/16 37/38ISSUE NO. 14: Relief.
44. In view of the findings recorded on the abovementioned issues, no relief can be granted to the plaintiff. The suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decreesheet be drawn accordingly.
File be consigned to Record Room.
Digitally signed GAJENDER by GAJENDER
SINGH SINGH NAGAR
Date: 2019.04.27
NAGAR 12:44:33 +0530
Announced in the open court (GAJENDER SINGH NAGAR)
on 27.04.2019 Administrative Civil Judgecum
Additional Rent Controller (Central)
Delhi/27.04.2019
(This judgment contains 38 pages in total)
Suit No. 94659/16 38/38
CS94659/16
27.04.2019
Present : None for plaintiff.
Sh. B.P. Singh, Ld. Counsel for defendant with wife of defendant in person.
Vide separate judgment of even date, the suit of the plaintiff is hereby dismissed. Parties to bear their own costs. Decreesheet be drawn accordingly.
File be consigned to Record Room.
(Gajender Singh Nagar) ACJ/ARC (Central) Delhi/27.04.2019 Suit No. 94659/16 39/38