Delhi District Court
Delhi vs Bhagwan Singh Dabas on 3 March, 2014
IN THE COURT OF MS SHEFALI SHARMA: LD CIVIL JUDGE ROHIINI COURTS
DELHI
Suit No. 764/13
03.03.2014.
Poonam Bansal .................... Plaintiff.
Vs
Bhagwan Singh Dabas ..................... Defendant
ORDER
Vide this order, I shall dispose of an application under Order XXXIX Rule 1 and 2 CPC filed on behalf of the plaintiff against defendant.
The brief facts for the effectual disposal of the instant application are as follows:
1. It is the case of the plaintiff that one Bijender S/o Sh. Silak Ram was alloted an extended abadi plot comprising in khasra no. 154/868 min (06) in village Puth Khurd, Delhi. That he sold the said plot to one Jag Mohan vide a registered sale deed on 02.11.2001. That it was agreed between the parties that Sh. Bijender would construct a boundary wall upto a height of 2 ½ Ft of the said plot after ascertaining the dimensions i.e 26 ½ x 107 ft and earmarking the location. Thereafter, the said plot was sold by Sh. Jag Mohan to one Sh. Inderjit vide a registered sale deed dt. 02.09.2003 and the vacant peaceful possession of the said plot along with boundary wall of 2 ½ ft on four sides was handed over to the subsequent purchaser . That Poonam Bansal V Bhagwan Singh Dabas 1 to 10 again the said plot was sold by Mr. Inderjit Singh to 4 persons Viz.Ms. Deepika Chhabra, Smt. Vandana Chhabra, Smt. Monisha Chhabra and Smt. Anubha Aggarwal vide registered sale deed . That on 02.11.2010 the said plot was again sold by the aforesaid persons to Smt. Sushila Garg vide a registered sale deed for a sale consideration of Rs. 19 lacs. That plaintiff lastly purchased the said property from Smt. Sushila by way of registered sale deed dt. 03.01.2012. That the vacant physical possession of the said plot was duly handed over to the plaintiff, it is pertinent to mention over here that the said plots dimensions were 26 ½ x 107 ft and a boundary wall of about 2 ½ ft was duly constructed over the same with a small opening of 3 ft on the northern side, opening towards the main road. The said plot is marked ABCD and shown in the red colour in the site plan attached with the plaint and thereafter, plaintiff lodged a police complaint dt. 30.07.2013 to the concerned SHO. That during inquiry it came to know to the plaintiff that some demarcation proceedings conducted by the halka patwari. That plaintiff had no knowledge of the same. No such demarcation proceedings were received by her.
It is the case of the plaintiff that the defendant in active connivance with the halka patwari had manipulated the dimensions of the plaintiff's plot . That the defdt has created a false and fabricated tatima aks sajra . Thus, in the back drop of this factual matrix the plaintiff was constrained to file the present suit and vide the instant application it is prayed by the plaintiff that the defendant/ his agents / employees / representatives etc. be restrained from trying to encroach upon the plots remove the boundary walls or try to forcibly Poonam Bansal V Bhagwan Singh Dabas 2 to 10 dispossess the plaintiff from the plot or to disturb the dimension of the said plot.
2. In support of her contention, plaintiff has filed the copies of the sale deed dt. 2.11.2001, 2.09.2003, 27.08.2007, 02.11.2010 and 03.01.2012, complaint to the concerned PS Bawana dt. 30.07.2013 and the site plan.
3. In response to this, the defendant vide his WS has denied the allegations made in the complaint and it is stated that the present suit is false and vexatious. In fact there were total four cosharers in this khasra no. 154/868. Share of the co sharers and their complete particulars are as under:
(a) Sh. Nand Ram 18 biswas
(b) Sh. Azad Singh 14 biswas
(c) Smt. Raj Bala & Sh. Satpal 4 biswas
(d) Plaintiff is the owner of 6 Biswas land.
In fact the plaintiff has purchased 6 biswas undivided share out of total land vide sale deed dt. 03.01.2012 from Smt. Sushila Garg and Sh. Rohit Garg. The directions as given in the sale deed are contrary to the revenue record and never existed on the spot so far as land purchased by the plaintiff is concerned.
Vide order dt. 02.01.2012, the Consolidation Officer partitioned the undivided share of the parties thereby giving fresh numbers and directions and dimensions of the plot and allotted to area each Cosharer was also disclosed vide order dt.02.01.2012 in case No. 168/CO/N/NW/2011. As per the demarcation, the land has been reallotted after mentioning its directions and dimensions and possession was also handed over to the respective parties as per demarcation report dt. 29.08.2013 . As per partition Poonam Bansal V Bhagwan Singh Dabas 3 to 10 conducted by the Consolidation officer, the plaintiff's plot no. becomes 154/868/4 and the plot no. of wife of defdt is 154/868/3. Respective entries have been made in the revenue record.
As per partition conducted by the Consolidation Officer, the plaintiff is not the owner of the property which has been depicted int he site plan placed on record by the plaintiff.
It is further argued by the defendant that this Hon'ble Court has no jurisdiction to entertain and try the present suit as jurisdiction of this Hon'ble Court is barred by provisions of section 44 of the East Punjab Holdings (Consolidation & Prevention of Fragmentation) Act, 1948. It is submitted that the Consolidation Officer has carried out partition under the Consolidation Act and as per partition, the plaintiff is owner of Khasra No. 154/868/4(06) and she is not owner of Khasra No. 154/868. The site plan placed on record by the plaintiff is also contrary to the record of Consolidation Officer and therefore same cannot be relied upon .
4. In support of his contention defendant has filed report of the Consolidation Officer, Register proceedings dt. 29.02.2012, copy of the report dt.02.01.2012, copy of register proceedings dt. 27.07.2012 and the copy of the report dt. 29.08.2013.
5. In replication to the WS of the defdt it is submitted on behalf of the pltf that the proceedings carried out by the consolidation officer are biased since no notice was given to the cosharer including the plaintiff. Further a private partition had taken place between the parties which stood implemented on the spot in respect of the plot carved out in khasra no.154/868 and the alleged partition dt. 02,.01.2012 is merely a paper Poonam Bansal V Bhagwan Singh Dabas 4 to 10 work and contrary to the position existing on the spot.
6. I have heard Ld. Counsels for the plaintiff and gone through the written statement filed by the defendant.
It is a settled law that a party is entitled to an order of injunction only if he is able to satisfy the court that a strong prima facie case has been made out in his favour, the balance of convenience also lies in his favour and that refusal of injunction will cause an irreparable injury to him.
Prima facie case means that there is a likelihood of infraction of a legal right of the plaintiff by the defendant. It means that the case of the plaintiff raises a triable issue which needs investigation, consideration and adjudication.
The plaintiff is also to establish that balance of convenience lies in his favour. Balance of convenience connotes comparative mischief likely to be cause to either party in case of grant or refusal of relief of injunction.
The plaintiff is also to satisfy the court that noninterference by the court would result in an irreparable injury and that there is no other remedy available to him except one i.e. the grant of injunction in his favour. Irreparable injury means an injury which is a material one and one that cannot be adequately compensated by way of damages. Further, it is a settled law that grant of temporary injunction is an equitable relief wherein the plaintiff has to satisfy the court that he has acted bonafidely.
7. Coming to the facts in the hands, it is the case of the plaintiff that one Bijender S/o Sh. Silak Ram was alloted an extended abadi plot comprising in khasra no.
Poonam Bansal V Bhagwan Singh Dabas 5 to 10 154/868 min (06) in village Puth Khurd, Delhi. That he sold the said plot to one Jag Mohan vide a registered sale deed on 02.11.2001. That it was agreed between the parties that Sh. Bijender would construct a boundary wall upto a height of 2 ½ Ft of the said plot after ascertaining the dimensions i.e 26 ½ x 107 ft and earmarking the location. Thereafter, the said plot was sold by Sh. Jag Mohan to one Sh. Inderjit vide a registered sale deed dt. 02.09.2003 and the vacant peaceful possession of the said plot along with boundary wall of 2 ½ ft on four sides was handed over to the subsequent purchaser . That again the said plot was sold by Mr. Inderjit Singh to 4 persons Viz.Ms. Deepika Chhabra, Smt. Vandana Chhabra, Smt. Monisha Chhabra and Smt. Anubha Aggarwal vide registered sale deed . That on 02.11.2010 the said plot was again sold by the aforesaid persons to Smt. Sushila Garg vide a registered sale deed for a sale consideration of Rs. 19 lacs. That plaintiff lastly purchased the said property from Smt. Sushila by way of registered sale deed dt. 03.01.2012. That the vacant physical possession of the said plot was duly handed over to the plaintiff, it is pertinent to mention over here that the said plots dimensions were 26 ½ x 107 ft and a boundary wall of about 2 ½ ft was duly constructed over the same with a small opening of 3 ft on the northern side, opening towards the main road.
8. I have carefully perused the sale deeds of the entire chain. It was submitted on behalf of the plaintiff that it was agreed between the previous owner i.e. Bijender and Jag Mohan amongst themselves that Bijender would construct a boundary wall upto a height of 2 ½ Ft of the said plot after ascertaining the dimensions . I have carefully Poonam Bansal V Bhagwan Singh Dabas 6 to 10 perused the sale deed executed between Bijender and Jag Mohan dt 02.11.2001. There is not a single avernment in the sale deed regarding the alleged boundary wall and the detailed dimensions of the plot. In fact even in the sale deed executed between Bijender and Inderjit dt. 02.09.2003 there is no mention of alleged boundary wall or the detailed dimensions . Even in the sale deed from Inderjit to the four persons dt. 27.08.2007 there is no mention of the alleged boundary wall or the detailed dimensions of the property. It is surprising that how then in the subsequent sale deeds leading to the eventual sale deed of the plaintiff suddenly the dimensions have been mentioned. It appears that initially the property had not been demarcated. In the replication filed by the plaintiff there was submission that a private partition had earlier taken place between the cosharers. No such document has been placed on record by the plaintiff to substantiate this contention.
9. I have also perused the site plan which is filed by the plaintiff. It is strongly disputed by the defendant. The said site plan has been prepared by the plaintiff himself through his counsel and has not been prepared by any specialized draftsman. Further there is no authentication of any concerned revenue authority to the effect that the site plan filed is correct. In these circumstances, not much weightage can be given to the site plan filed by the plaintiff.
10. The plaintiff claims his title vide a registered sale deed from Smt. Sushila Garg which is dt. 03.01.2012 whereas defdt has placed on record the register proceedings of the Consolidation Officer which shows that prior to the date of purchase the consolidation officer vide order dt. 02.01.2012 had demarcated the Poonam Bansal V Bhagwan Singh Dabas 7 to 10 undivided share of the parties and thereby giving fresh boundaries and terms and dimensions of the plot to each cosharer vide a detailed order dt. 02.01.2012 in the case No. 168/CO/N/NW/2011.. That as per the partition and the consolidation officer's proceedings it prima facie appears that the defdt is in possession of plot no. 154/868/3 which is also evident from the site plan prepared by the Consolidation Officer. Thus, prior to the purchase by the plaintiff consolidation proceedings had already been taken place and the area had been demarcated. It was argued by the plaintiff that the said consolidation proceedings are biased. In these circumstances, it was incumbent upon the plaintiff to move the appropriate forum for challenging the order of Consolidation Officer and the suit for injunction simplicitor is specifically barred u/s 44 of the East Punjab Holdings (consolidation & Prevention of Fragmentation) Act, 1948. Comparing the site plan filed by the plaintiff with the site plan of the Consolidation Officer and the demarcation Report filed on record it prima facie appears that the site plan filed by the plaintiff is contrary to the revenue record. In the absence of any cogent document filed by the plaintiff there appears to be no reason to disbelieve the demarcation and site plan of the Consolidation Officer. Further it is not disputed by the plaintiff that there were other cosharers in khasra no. 154/868. That one of the cosharer Smt. Raj Bala, who is the wife of the present defendant had filed the application before the concerned Consolidation Officer. When the plaintiff admits that there were other cosharer and it appears from the consolidation proceedings that fresh demarcation had Poonam Bansal V Bhagwan Singh Dabas 8 to 10 already been taken vide orders dt. 02.01.2012 which is prior to the date of the purchase by the plaintiff then how and in what capacity the plaintiff claims dimensions of the suit property and its boundary wall, as per his self drafted site plan has not been substantiated by any document filed by the plaintiff . As is already discussed the site plan filed by the plaintiff is not authenticated by any revenue authority.
11. Further when the land is subject to consolidation proceedings the ideal and equally efficacious remedy for the plaintiff is to file a suit for partition and exclusive jurisdiction of the same lies with the consolidation authority as is already stated above with special emphasizes of Bar of Civil Jurisdiction u/s 44 of the East Punjab Holdings (consolidation & Prevention of Fragmentation) Act, 1948.
12. Further the khasras were renumbered by the Consolidation Officer on 21.01.2012 which is much prior to the filing of the present suit. Under the garb of the present suit for injunction, simpilicitor the plaintiff is actually challenging the order of the Consolidation Officer. There is an appropriate and equally efficacious remedy available with the plaintiff under the East Punjab Holdings (consolidation & Prevention of Fragmentation) Act, 1948.
Further no documents have been filed by the plaintiff to establish his possession in the suit property which could show the exact dimensions .
13. In view of the aforesaid circumstances, no prima facie case is made out in favour of the plaintiff. The application u/o 39 R 1 & 2 CPC is dismissed Poonam Bansal V Bhagwan Singh Dabas 9 to 10 accordingly.
14. Nothing stated herein shall tantamount to an expression of opinion on the merits of the case.
Pronounced in the open court
today on 03.03.2014 (SHEFALI SHARMA)
CIVIL JUDGE (NORTH)
ROHINI, DELHI/ 03.03.2014
Poonam Bansal V Bhagwan Singh Dabas 10 to 10