Delhi District Court
Sh. Rameshwar Dass vs Sh. Hukum Chand(Since Deceased) ... on 7 August, 2023
RCA CIVIL DJ ADJ 93/2018
DLSW01-002546-2016
IN THE COURT OF MS. KIRAN GUPTA
ADDITIONAL DISTRICT JUDGE -01
SOUTH WEST DISTRICT, DWARKA COURTS
NEW DELHI.
RCA CIVIL DJ ADJ 93/2018
DLSW01-002546-2016
More than 5 years old appeal
1. Sh. Rameshwar Dass
s/o. Late Sh. Ram Pat
2. Sh. Mange Ram
s/o. Late Sh. Ram Pat
3. Sh. Ganga Ram
s/o. Late Sh. Ram Pat
4. Sh. Abhey Ram
s/o. Late Sh. Ram Pat
5. Sh. Bhup Singh
s/o. Late Sh. Ram Pat
ALL r/o. Village Tajpur Khurd
PO Chhawla
New Delhi-110071 .....Appellants
Versus
1. Sh. Hukum Chand(since deceased) Digitally
signed by
s/o. Late Sh. Kehar Singh Kiran Kiran Gupta
Date:
Gupta 2023.08.07
15:13:41
+0530
Rameshwar Dass & Ors
vs.
Hukum Chand & Ors Page 1 of 28
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r/o. Village Tajpur Khurd
PO Chhawla
New Delhi-110071
Through LRs
(a) Hari Ram
(b) Meer Singh
(c) Krishan s/o. Late Mool Chand
(d) Ms. Parvesh d/o. Late Mool Chand
(e) Ms. Shalu d/o. Mool Chand
2. Sh. Ram Dhan(since deceased)
Through LRs
(a) Hari Ram
(b) Hari Kishore
(c) Ram Niwas
(d) Surender
(e) Deen Dayal
ALL s/o. Late Sh. Ram Dhan
3. Sh. Net Ram
s/o. Late Sh. Thana
ALL r/o. Village Tajpur Khurd
PO Chhawla
New Delhi-110071 ......Respondents
Date of Institution : 17.05.2016
Date of conclusion of
Arguments : 12.07.2023
Date of Judgment : 07.08.2023
Digitally signed
Kiran by Kiran Gupta
Date:
Gupta 2023.08.07
15:13:58 +0530
Rameshwar Dass & Ors
vs.
Hukum Chand & Ors Page 2 of 28
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DLSW01-002546-2016
JUDGMENT
1. Present appeal is against the judgment and decree dated 18.04.2016 whereby the Ld Civil Judge has dismissed the suit for permanent injunction filed by the appellant against the defendants. The parties in the present appeal shall be referred as they were referred before the Ld Civil Judge.
PLAINT
2. The brief facts of the case as stated by the plaintiffs in the plaint filed before the Ld Civil Judge are that they are residents of Village Tajpur Khurd, PO Chhawla, New Delhi-110071. Their father Late Sh. Ram Pat was the real brother of defendant No. 2 and 3 namely Ramdhan and Netram. That the plaintiffs and defendants have inherited all the moveable and immovable properties including agricultural land and are in possession of their respective land.
Digitally
signed by
Kiran Kiran Gupta
Date:
Gupta 2023.08.07
15:14:35
+0530
Rameshwar Dass & Ors
vs.
Hukum Chand & Ors Page 3 of 28
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2.1 That the consolidation proceedings had taken
place in the village in year 1972 and accordingly, the land allotted to the plaintiffs and the defendant No. 2 and 3 was shown in the Copy Istemal Aarja. The plaintiff's father Late Ram Pat and the defendants No. 2 and 3 mutually divided their respective land and land bearing Khasra No. 66 (0-10) situated in the revenue estate of Village Tajpur Khurd came into the share of Late Sh. Ram Pat. Late Sh. Ram Pat constructed a hall room for storing fodder/ bhusa etc and a tin shed enclosed with the boundary wall and he was in continuous possession of the same. The plaintiffs after the death of their father (Late Sh. Ram Pat) are accordingly in possession of their premises.
2.2 The defendants No. 1 who is having his house adjacent to the said premises asked the plaintiffs to vacate the suit premises on 25.04.2005 saying that the aforesaid Khasra Number came to his share and the father of the plaintiff was in unlawful possession of the same. That on 01.06.2005, the defendants No. 1 attempted to stop the plaintiff No. 1 from parking his tractor in the suit property Digitally signed Kiran by Kiran Gupta Date: 2023.08.07 Gupta 15:14:55 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 4 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016 but the situation was saved by the intervention of the neighbours. Defendants No. 1 had also demolished the wall separating the plot of the plaintiff from the plot of the defendants No. 1. The defendants No. 2 and 3 are made proforma parties as no relief is sought against them. The plaintiffs even approached the police, but the police refused to register a case. Hence, the present suit has been filed seeking the relief of permanent injunction praying therein that defendants No. 1 be restrained from dispossessing forcibly/ interfering in the peaceful possession of the plaintiffs in the suit property bearing Khasra No. 66(0-10) in the Revenue Estate of Village Tajpur Khurd, New Delhi without due process of law.
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 1
3. The defendant No. 1 in his written statement has taken the preliminary objection that the plaintiffs have no right, title or interest in the suit property and the same is exclusively owned and possessed by him for over the last Digitally signed Kiran by Kiran Gupta Date: Gupta 2023.08.07 15:15:10 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 5 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016 45 years. The suit of the plaintiffs is without any cause of action and they have no locus standi to file the present suit. The father of the plaintiffs Sh. Ram Pat accepted the right of the ownership and possession of the defendants No. 1 over the suit property.
3.1 It is further stated that the suit is not maintainable under Section 41 of the Specific Relief Act and the plaintiffs have not approached this Court with clean hands and have concealed the true facts of the case. It is further stated that in the garb of the present suit, the plaintiffs want to undo the effect of the order of the Revenue Court dated 01.10.1970 in case bearing No. 418/RA/70 by which the rights of the parties were decided in respect of the Khasra in dispute and against which no appeal was ever filed by the father of the plaintiffs. The discrepancy between the filed book and Khatauni was rectified by the order of the Tehsildar, Najafgarh wherein the defendant has been shown as the Bhumidhar and in possession of (0-18) Biswas in Khara No. 66 instead of (0-8).
Digitally
signed by
Kiran Kiran Gupta
Date:
Gupta 2023.08.07
15:15:20
+0530
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vs.
Hukum Chand & Ors Page 6 of 28
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3.2 It is also stated that the plaintiffs have
intentionally concealed the facts that the defendants No. 1 was in possession of the suit property much prior to the beginning of the consolidation proceedings and had pucca constructed boundary wall since 1958. He had also got built two pucca barracks on his land adjoining the house of Late Sh. Ram Pat in the year 1964-65 and a garage ad-measuring 11'-9" x 20' for the tractor and trolly was built up in the year 1972-73. The portions under the possession of the plaintiffs and the defendants are separated by the old pucca walls adjoining each other. The defendant No. 1 has three sons namely Hari Ram, Mool Chand and Mir Singh and they divided this plot in three portions and Sh. Mool Chand had taken a water connection in the plot. It is stated that neither plaintiffs nor their father has ever been in possession of the suit property at any point of time.
WRITTEN STATEMENT ON BEHLAF OF DEFENDANT NO. 2 AND 3
4. The defendant No. 2 and 3 have filed their joint Digitally signed Kiran by Kiran Gupta Date: Gupta 2023.08.07 15:15:31 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 7 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016 written statement wherein they have admitted the claim of the plaintiffs.
REPLICATION
5. No replication to the written statement of defendants was filed by the plaintiffs.
ISSUES
6. On the basis of the pleadings of the parties, following issues were framed by the Ld Trial Court vide order dated 07.09.2005:
(1) Whether the plaintiff is entitled for an equitable relief of permanent injunction as prayed for ? OPP (2) Whether the suit of the plaintiff is not maintainable in view of the preliminary objections raised in the written statement ?
OPD Digitally
signed by
Kiran Kiran Gupta
Date:
Gupta 2023.08.07
15:15:43
+0530
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Hukum Chand & Ors Page 8 of 28
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(3) Whether the suit has become infructuous in view of the pendency of the proceedings under Section 26 of the Land Revenue Act ? OPD (4) Whether defendants have committed any contempt by violating order dated 24.06.2005, if so, its effect ? OPP (5) Relief EVIDENCE ON BEHALF OF THE PLAINTIFFS
7. The plaintiffs have examined following witnesses:
7.1 PW1 is Sh. Mange Ram. He has proved the copy of Istemal Arja Ex.PW1/1; site plan Ex.PW1/2; report of record room dated 02.08.2005 Ex.PW1/3; application form for certified copy Ex.PW1/4; copy of Khatauni Paimais of land of Sh. Hukum Chand Ex.PW1/5 and copy of kalandra Ex.PW1/6.
7.2 PW2 is Sh. Narender Kumar- record keeper Digitally from signed by Kiran Kiran Date:
Gupta Gupta 15:16:01 2023.08.07 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 9 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016 Revenue Department, Tis Hazari Courts identified the signatures of record keeper Sh. Tek Chand on the report dated 02.08.2005 Ex.PW1/3 given on the application for certified copy of the order in case No. 418/RA dt 01.10.1970 of Revenue Estate Village Tajpur Khurd, Delhi.
7.3. PW3 is Sh. Surender Gaur. He has tendered his evidence by way of affidavit Ex.PW3/1.
7.4. PW4 is Sh. Chattar Pal Singh- Kanungo (record rook), Tehsil Hauz Khas, Mehrauli, Delhi. He deposed that the record of case No. 418/RA dated 01.10.1970 pertaining to Revenue Estate of Village Tajpur Khurd, PO Chhawla, New Delhi titled as Hukum Chand vs. Rampat is not available with their department.
7.5. PW5 HC Dharamveer- PCR official proved the PCR call Ex.PW5/1 dated 14.12.2005.
7.6. PW6 W/Ct. Kaushalya produced DD No. 76B of PS Najafgarh, Delhi and proved Kalandra under Section Digitally signed by Kiran Kiran Date:
Gupta Gupta 2023.08.07 15:16:21 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 10 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016 107/150 Cr.P.C Mark PW6/1.
7.7. PW7 HC Satish proved the DD No. 76B dated 14.12.2005 as Ex.PW2/1.
EVIDENCE ON BEHALF OF DEFENDANTS
8. The defendants have examined following witnesses:
8.1 DW1 is Sh. LB Verma- Patwari. He deposed that he had seen defendant No. 1 in possession of the suit property for the last one and half year since he joined the present office. He had checked the record and the plaintiffs have never been in possession of the suit property during a span of last 40-50 years. The consolidation proceedings in the Village Tajpur Khurd, Delhi was started in the year 1970-71. Upto the year 1970, Sh. Rampat etc. have been shown as the Bhumidar of the suit land. As per record, the plaintiffs were aware of the change of their Bhumidari in favour of defendant No. 1 in the year 1970. The possession Digitally signed Kiran by Kiran Gupta Date: 2023.08.07 Gupta 15:16:33 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 11 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016 of defendant No. 1 in respect of Khasra No. 66 is 18 Biswa since 1970 as per their record.
8.2 DW2 is Sh. Saurav Saxena- JE with BSES Rajdhani Power Ltd, Najafgarh. He produced the summoned record pertaining to electricity connection to agricultural power connection installed at Khasra No. 168/1 in the name of Sh.Hukum Chand r/o. Village Tajpur Khurd. He deposed that the connection was installed on 26.04.1971 on the tubewell of Sh. Hukum Chand. The same was in use upto 27.01.2004 from the date of its installation. It was disconnected in the year 2004 for non payment of the bills by the consumer.
8.3. DW3 is Sh. Hukum Chand. He tendered his evidence by way of affidavit Ex. DW3/A and relied upon the site plan as Ex.DW3/1 and certified copy of the declaration of the Bhumidari as Ex.DW3/2.
8.4. DW4 is Sh. Mool Chand. He has tendered his evidence by way of affidavit Ex.DW4/A and relied upon the Digitally following documents: signed by Kiran Kiran Gupta Date:
Gupta 2023.08.07
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(a) SPA executed by Sh. Hukum Chand in his favour as Ex.DW4/1;
(b) Fard dated 22.04.1973 in respect of Khasra No. 66 as Ex.DW4/2;
(c) Land holder's passbook showing the area of 0-18 at page No. 2 in the name of his father as Ex.DW4/3;
(d) Khatauni Pamaish for the year 1970 in respect of old Khasra No. 168(new Khasra No. 66) recorded as 'gair mumkin makan over 0-10 Biswa' in the name of his father and showing change of ownership in favour of his father in place of Rampat as Ex.DW4/4;
(e) Khatauni for the year 2001-02 Ex.DW4/5;
(f) Certified copy of the order passed by Dy Commissioner (West) Delhi in respect of suit property as Ex.DW4/6.
8.5. DW5 is Sh. Jai Narain and DW6 is Sh. Daya Nand.
Digitally signedKiran by Kiran Gupta Date: Gupta 2023.08.07 15:16:59 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 13 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016
Both these witnesses have tendered their evidence by way of affidavit Ex.DW5/A and Ex.DW6/A respectively.
8.6. DW7 is Sh. Narender Kumar- record keeper, Revenue Record Room(consolidation), Tis Hazari Court. He proved certified copy of the Scheme Chakbandi Ex.DW7/1; certified copy of Register Karwahi Ex.DW7/2 and certified copy of document bearing thumb impression of Netram during consolidation proceeding Ex.DW7/3.
GROUNDS OF APPEAL
9. The judgment and decree dated 18.04.2016 has been challenged on the following grounds:
a) That the Ld Trial Court failed to consider that the land in question bearing Khasra No. 66 (0-10) stood allotted to the plaintiffs during the consolidation proceedings of the village in the year 1970 which is shown in the Kisan Book(copy Digitally istemal arza)Ex. PW1/1. signed by Kiran Kiran Gupta Date:
Gupta 2023.08.07
15:17:12
+0530
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Hukum Chand & Ors Page 14 of 28
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b) That the Ld Trial Court failed to appreciate
the testimony of PW3 Sh. Surender Gaur who has deposed that plaintiffs were in possession of the suit land and he being in the employment as driver of Sh Mange Ram, one of the plaintiffs used to park the van in the plot in question prior to December 2014 and when he visited the village in January 2015, he found the plaintiffs not in possession of the same.
c) That the Ld Trial Court erred in holding that the plaintiffs did not construct the Hall and Tin shed in the property though the same stood admitted by DW4.
d) That the Ld Trial Court erred in holding that the record case No. 418/RA decided vide order dt 1.9.1970 is not traceable and has not been proved by defendant No. 1. Digitally signed by Kiran Kiran Date:
Gupta Gupta 2023.08.07 15:17:23 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 15 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016
e) That the Ld Trial Court wrongly observed that the order dt 1.10.1970 in case No 418/RA passed by the concerned SDM was challenged by the plaintiffs before the Dy Commissioner since a case regarding institution of enquiry regarding change of entries about the suit land in the records was filed by one of the defendants namely Net Ram which is pending disposal before the Dy Commissioner.
f) That the Ld Trial Court has not appreciated that the entries in the record of rights prior to correction in 2005 were in favour of the plaintiffs, therefore, the plaintiffs were in possession of the suit land.
g) That the Ld Trial Court has erred in holding that the entry in the kisan book Ex.PW1/1 though showed the plaintiffs in possession Kiran Gupta Digitally signed by Kiran Gupta Date: 2023.08.07 15:17:34 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 16 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016 of the suit land but since the same does not bear the date of issuance cannot be taken as an evidence of possession which is wrong since the document Ex.PW1/1 was prepared during consolidation proceedings which shows the previous land and the newly allotted land.
h) That the Ld Trial Court has wrongly presumed that the kisan book issued in 1974 of defendant No. 1 Ex.PW4/3 showing the entry of Khasra No. 66(0-18), as a reliable document because the entry is being alleged on the basis of order dated 1.10.1970 in case No. 418/RA which was never passed.
i) That the Ld Trial Court has wrongly presumed that the Revenue Consolidation Record produced by defendant No. 1 proved the possession of the defendant Kiran Gupta Digitally signed by Kiran Gupta Date: 2023.08.07 15:17:44 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 17 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016 No. 1 on the suit land because the record produced by DW7- Sh.Narender Kumar does not reflect any order for transfer of bhumidhari right in favour of the defendant No. 1 nor the same can be treated as a record of change of bhumidhari rights.
j) That the Ld Trial Court has also wrongly presumed the signatures of Sh.Net Ram on one of the paper showing land allotted to the plaintiffs during consolidation proceedings as admission to the change of entry of Khasra No.66 to Sh. Hukum Chand because there is no order or resolution to this effect. It is particularly mentioned that on the next page there is signature of Hukum Chand accepting entry in his Khata as 66(0-8), therefore there has been change in record regarding change of suit Kiran land. Gupta Digitally signed by Kiran Gupta Date: 2023.08.07 15:17:55 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 18 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016
k) That the Ld Trial Court has erred in holding that the defendant No. 1 is in possession of whole land bearing Khasra No.66 (0-18) while the Khasra Girdawari and Khatoni showed possession of defendant No. 1 of the land bearing Khasra No.66 (0-8).
l) That the Ld Trial Court has wrongly disbelieved the entries of the PCR and the records thereof proving the incident dated 14.12.2005 in which the plaintiffs were dispossessed by defendant No. 1 by disobeying the status quo.
m) That the Ld Trial Court has wrongly observed that the plaintiffs have failed to bring independent witness to prove their possession whereas the consolidation record proves the possession of plaintiffs Kiran on the suit land. Further, an independent Gupta Digitally signed by Kiran Gupta Date: 2023.08.07 15:18:06 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 19 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016 witness DW3 has also proved the possession of plaintiffs on the suit land.
n) That the Ld Trial Court has wrongly presumed that since Ld ADJ while passing the order of maintaining status quo did not specify the party in possession of the suit land.
o) That the defendant No. 1 has admitted the incident dated 14.12.2005 therefore, it is proved that the plaintiffs were dispossessed.
10. No reply to the present appeal has been filed by any of the respondents.
ANALYSIS AND FINDINGS
11. Heard Ld counsels for the parties and perused Digitally signed by Kiran Kiran Date:
Gupta Gupta 2023.08.07 15:18:16 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 20 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016 the appeal file as well as the Trial Court Record. The case of the plaintiffs is that they were in possession of the suit land at the time of filing the Civil suit. Since they apprehended dispossession, they had sought the relief of permanent injunction against the defendants specifically against the defendant No. 1. It is further the case of the plaintiffs that during the pendency of the suit, despite the status quo order, they have been dispossessed by the defendant No. 1 from the suit property. Since the plaintiffs have sought the relief of permanent injunction, the onus to prove prima facie case; balance of convenience and that irreparable loss shall be caused to them is upon the plaintiffs. PW1 in his affidavit Ex.PW1/A has reiterated the facts as stated in his plaint. He during his cross examination dated 13.03.2008 admitted that as of now defendant No.1 is in possession of the suit property. He deposed that he had submitted the list of witnesses to prove his possession of the land in question. He admitted that he had not filed any suit for recovery of possession after being allegedly dispossessed. About 50-60 persons from the neighbourhood had gathered at the site when defendant No. 1 tried to dispossess them before filing Digitally signed by Kiran Kiran Date:
Gupta Gupta 15:18:31 2023.08.07 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 21 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016 of the suit. He admitted that in the list of witnesses he had not given the names of the persons of the Village in whose presence the defendant No. 1 tried to dispossess them. He deposed that they were dispossessed actually on 14.12.2005 and on that day also about 50-60 persons were present, who saw they being physically dispossessed from the suit land. He admitted that he had not given the name of any of the persons of the Village who were present and in whose presence they were dispossessed. He admitted that he had not given the name of the any independent person allegedly present on the spot from the Village in whose presence they were dispossessed.
12. The plaintiffs in order to prove their possession have examined PW3 Sh. Surender Gaur. He in his affidavit Ex.PW3/1 has stated that he used to park his RTV vehicle belonging to the wife of Mange Ram in the plot in question and when he visited in January 2006, he found that Sh. Hukum Chand and his family members were in possession of the same. He during his cross examination admitted that he had not given any particulars, Khasra Number and Digitally signed Kiran by Kiran Gupta Date: 2023.08.07 Gupta 15:18:43 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 22 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016 location of the disputed plot. He cannot tell its measurements. He has no proof that he worked as driver in the employment of Sh. Mange Ram. He admitted that he can neither give the name nor produce any person from Tajpur Khurd Village who could stand witness of him having worked as a driver on the said RTV. He has no proof to show that the place where he used to park the RTV was in possession of Sh. Mange Ram. He has no proof to show that Sh. Mange Ram was in possession of the disputed plot at any point of time. He went to Village Tajppur Khurd in January 2006. There he was told by 4 persons, that a dispute is going on between the parties regarding the plot in question. He deposed that at the instance of the those 4 persons he went to the house of the plaintiff and met wife of Sh. Mange Ram who told him that they were in possession of the plot in question and have been dispossessed by the defendants.
13. From the testimony of PW3, who is the sole witness regarding the possession of the plaintiffs, it is evident that he neither has any knowledge of the Digitally signed Kiran by Kiran Gupta Date: 2023.08.07 Gupta 15:18:53 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 23 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016 description of the property nor has any documentary or oral evidence to prove that he used to park the vehicle belonging to the wife of Sh. Mange Ram in the suit property. Infact, he during his cross examination has admitted that in 2016, when he went to the village, he at the instance of some persons, met wife of Sh Mange Ram and has deposed in the Court. The testimony of PW3 by no stretch of imagination proves the possession of the plaintiffs in the suit property.
14. PW5 to PW8 are the witnesses with respect to some DD number which was lodged subsequent to some quarrel between the plaintiffs and defendants. The testimony of these witnesses also does not proves the possession of the plaintiffs in the suit property.
15. As regards the testimony of PW4 is concerned, the main grievance of plaintiff is the defendants have failed to prove the record of case No. 418/RA dated 01.10.1970 which shows that no such order was ever passed. In this regard, the Ld Civil Judge has rightly held that the plaintiffs Digitally signed by Kiran Kiran Date:
Gupta Gupta 15:19:06 2023.08.07 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 24 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016 cannot prove their case on the basis of the negative evidence but have to prove their case on the positive evidence. From the above discussion, it is evident that the plaintiffs have not been able to prove their possession in the suit property on the date when the suit was filed. The Ld Civil Judge has rightly held that the status of the parties as to who is in the possession of the suit property is not mentioned in the interim order dated 24.06.2005 relied upon by the plaintiffs. Even otherwise from the said order, it cannot be deemed that the possession of the plaintiffs in the suit property is duly proved on the date of the filing of the suit. The duty was cast upon the plaintiffs to prove their possession in the suit property by leading positive cogent evidence, which they have failed to lead.
16. On the contrary, the defendants have duly proved the documents Ex.DW4/2 to Ex.DW2/6 to prove that they are in possession of the suit property for the last many years. These documents are further strengthened from testimony of DW1 Sh. LB Verma, the concerned Patwari who has categorically deposed that he had seen the defendant Digitally signed Kiran by Kiran Gupta Date: 2023.08.07 Gupta 15:19:24 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 25 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016 No. 1 in possession of the suit property since he joined the present office. He further deposed that he had checked the record and the plaintiffs had never been in possession of the suit property during the span of last 40-50 years. He further deposed that as per record, the plaintiffs were aware of the change of their Bhumidari in favour of defendant No. 1 in the year 1970 and that the possession of defendant No. 1 in respect of Khasra no 66 is 18 Biswa since 1970 as per their record. Even DW2, the concerned Engineer categorically proved that the agricultural power connection was installed by the department in 26.4.1971 on the tubewell of defendant No. 1 in the Khasra No 1681/1 (new Number 66).
17. From the testimony of DW1 and DW2, it is evident that it is the defendant No. 1 who is in possession of the suit property since 1970 i.e. prior to the filing of the present suit. Even as per the document Ex.PW7/3A, defendant No. 1 is shown as recorded person in possession of the Khasra No 66, rakba 0-18. Even as per document Ex.DW7/A which is the certified copy of the scheme chakbandi, with respect to Khasra No. 168/1, rakba 09-10, it Digitally signed by Kiran Kiran Date:
Gupta Gupta 15:19:34 2023.08.07 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 26 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016 is in the name of the Bhumidar Rampat, Ramdhan and Netram all sons of Sh. Thana but the person in possession of the land is recorded as Hukum Chand/ defendant No.1. Ex.DW7/2 is the certified copy of the Register Karawai wherein Hukum Chand was recorded as the Bhumidar in Khasra No 66, Rakba 0-18.
18. From these documents, it is evident that defendant No.1 is in possession of the suit property even prior to the filing of the suit by the plaintiffs before the concerned court in 2005. The plaintiffs have miserably failed to prove their possession in the suit property at the time of filing of the present suit. They have further failed to prove that they were subsequently dispossessed from the suit property in the year 2005 as alleged. The plaintiffs in the garb of injunction are indirectly seeking the relief of declaration and possession.
19. The Ld Civil Judge after considering all the documents of the parties has rightly decided issue No. 1 and 4 against the plaintiffs. There is no infirmity in the judgment Digitally signed Kiran by Kiran Gupta Date: 2023.08.07 Gupta 15:19:46 +0530 Rameshwar Dass & Ors vs. Hukum Chand & Ors Page 27 of 28 RCA CIVIL DJ ADJ 93/2018 DLSW01-002546-2016 and decree dated 18.04.2016. The same is upheld. Appeal being devoid of any merits, is hereby dismissed. Appeal file be consigned to record room. TCR be sent back to the concerned court alongwith copy of the judgment.
Digitally signed by Kiran Kiran Gupta Date:
Gupta 2023.08.07 15:19:57 +0530 Announced in open KIRAN GUPTA Court on 07.08.2023 Additional District Judge-01 South West District Dwarka Courts, Delhi.
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