Delhi District Court
Sardar Puran Singh vs Sh. Gurdiyal Singh on 5 March, 2015
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IN THE COURT OF SHRI RAJ KUMAR CHAUHAN : ADDITIONAL DISTIRCT
JUDGE04 : SOUTH DISTRICT : SAKET COURTS : NEW DELHI
Suit No.389/14
In the matter of :
Sardar Puran Singh,
S/o Sh. Ganesh Singh,
Through his SPA :
Sh. Manjit Singh S/o Sh. Puran Singh,
R/o H. No. 130, village Jaitpur,
Post Office Badarpur,
New Delhi .......Plaintiff
Versus
Sh. Gurdiyal Singh,
S/o Sh. Shyam Singh,
R/o S118, Saurabh Vihar,
Near Mashid, Hari Nagar Extension,
New Delhi. ........Defendant
Date of institution of the suit : 12.05.2009
Date reserved for judgment : 05.02.2015
Date of pronouncement of judgment : 05.03.2015
Suit for possession, mesne profit and permanent injunction
J U D G M E N T :
The present suit has been instituted by plaintiff through SPA, Sh.
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Manjit Singh interalia alleging that he is the registered owner of the property bearing khasra no.99 measuring 4 Bighas situated in the revenue Estate of Village Jaitpur, Tehsil Mehrauli, New Delhi44; he has purchased this land vide registered sale deed dated 04.01.1977 for a consideration of Rs.9500/ from its earlier owner namely Arur Singh S/o Santa Singh; the land has been mutated in the name of the plaintiff; out of total land, the plaintiff carved out plots and sold to different prospective buyers and the plaintiff is left with ownership of a big plot measuring 900 sq. yards. It is further alleged that another plot measuring 70 sq. yards in which one room, one kitchen, latrine and bathroom are constructed. A hand pump is also installed besides boundary wall of the plot. The said plot of 70 sq. yards is popularly known as S118, Saurav Vihar, near Masjid, Hari Nagar Extension, New Delhi (hereinafter referred to as 'suit property'), as shown in Red colour in the site plan.
2 The defendant being a relative of the plaintiff was allowed to reside in the 'suit property', without creating any tenancy or other status in favour of the defendant. Since the relations between the plaintiff and defendant ceased to be cordial and accordingly permission to stay in the 'suit property' was withdrawn vide legal notice dated 19.03.2009 which was duly served upon the defendant However, the defendant did not hand over the vacant and peaceful possession of the 'suit property' despite service of legal notice and threatened to hand over the possession of the same to some other person.
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After expiry of 15 days of service of the notice, the defendant has become tresspasser / unauthorized occupant in the 'suit property' for which he is liable to pay a sum of Rs.8,000/ per month as unauthorized occupant / user charges. Hence, the present suit.
3 Summons of the suit were issued to the defendant. The defendant appeared and filed WS. In the WS, in parawise reply, the defendant has stated that plaintiff was not registered owner of the property bearing khasra no.99 measuring 4 Bighas situated in the revenue Estate of Village Jaitpur, Tehsil Mehrauli, New Delhi44. The defendant has denied the purchasing of the above property by the plaintiff vide registered sale deed dated 04.01.1977 from its earlier owner Arur Singh. It is asserted that 'suit property' bearing no. S118, Saurav Vihar, near Masjid, Hari Nagar Extension, New Delhi measuring 67 sq. yards out of total khasra no.99 has been purchased by the defendant on 26.02.1998 and since then, defendant along with his family are residing there continuously. All other averments made in the plaint have been controverted and denied.
4 The plaintiff filed replication reiterating the averments made in the plaint and denied the averments of the defendant made in the WS contrary to the plaint.
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5 After completion of pleadings of the parties, the following issues were framed by my Ld. Predecessor vide order dated 22.02.2010 :
i. Whether the plaintiff is the owner of the suit property having a valid title therein? OP Parties ii. Whether plaintiff is entitled to possession of the suit premises? OPP iii. Whether plaintiff is entitled to mesne profits? If so, at what rate and from when?
iv. Whether the suit property has not been properly valued? OPD v. Relief
6 Thereafter, the matter was fixed for PE. In support of its case, the plaintiff company examined PW.1, Sh. Manjit Singh, SPA of the plaintiff. 7 Thereafter, the plaintiff closed its evidence and the matter was fixed for defendant evidence. In support of its case, the defendant examined himself as DW.1, Sh. Gyan Singh as DW.2, Sh. Makhan Singh as DW.3, Sh. Mahender Singh as DW.4, Sh. Surender Singh as DW.5 and Sh. Preeta Singh as DW.6.
8 Thereafter, the defendant closed its evidence and the matter was fixed for final arguments.
9 I have heard the arguments at length from both the sides and have carefully gone through the entire material on record.
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MY ISSUEWISE FINDINGS ARE AS FOLLOWS :
ISSUE NO.1. :
"Whether the plaintiff is the owner of the suit property having a valid title therein? OP Parties"
10 The onus to prove this issue was primarily upon the plaintiff. In order to discharge this onus, the plaintiff has examined Sh. Manjit Singh, SPA of the plaintiff by filing affidavit dated 12.05.2010. Sh. Manjit Singh is the son of the plaintiff who deposed that plaintiff is the registered owner of the property bearing khasra no.99 measuring 4 Bighas situated in the revenue Estate of Village Jaitpur, Tehsil Mehrauli, New Delhi44. It is further stated that the 'suit property' was purchased vide registered sale deed dated 04.01.1977 for consideration of Rs.9,500/ from Arur Singh. The sale deed is Exb.PW.1/B. It is further stated that out of total land measuring 4 Bighas, the plaintiff carved out plots and sold to different persons and was left with a plot measuring 900 sq. yds having a boundary wall. It is further stated that another plot measuring 70 sq. yds having construction of one room, one kitchen, latrin and bathromm was also owned by the plaintiff and the said plot was known as S118, Saurav Vihar, near Masjid, Hari Nagar Extension, New Delhi as shown in Red colour in the site plan, Exb.PW.1/C (hereinafter referred to as 'suit property'). In his crossexamination, he has stated that Arur Singh was the owner of Khasra No. 99 and his family members, brothers and sisters might be owner of said Khasra. He further stated that he did not know as Exb.PW.1/B (sale deed of 4 Bighas in khasra no.99 was executed in respect of which land). He further admitted that Contd....5 of 13 : 6 :
he was not aware of any transaction related to khasra no.99. He further stated that he has deposed in the court as per instructions of his father. 11 The defendant has examined himself as DW.1 by filing affidavit Exb.DW1/A stating that he has purchased the 'suit property' bearing no. S118, gali no.2 Saurav Vihar, near Masjid, Hari Nagar Extension, New Delhi measuring 67 sq. yds of khasra No.99 by way of Agreement to Sell, Power of Attorney, etc dated 20.06.1998, Exb.DW.1/1 to DW.1/4. It is further stated that plaintiff is neither owner nor successor in interest in the 'suit property' and it was defendant who was owner of the 'suit property' and residing there after purchase. In his crossexamination, he stated that he has purchased the plot and raised construction in the year 1998. He further stated that he had purchased the 'suit property' from Jaswant Singh through his brotherinlaw. He has further stated that land was in the name of Bachhan Singh, father of Jaswant Singh and after his death, it was mutated in the name of his motherin law.
12 DW.2, Gyan Singh has filed affidavit, Exb.DW.2/A who has deposed at the request of Gurdiyal Singh claiming himself to be relative of Jaswant Singh. He is stated to be an attesting witness to the documents, Exb.DW.1/1 to DW.1/4 stating that Jaswant Singh has signed the same in his presence. In his crossexamination, he stated that defendant Gurdiyal Singh Contd....6 of 13 : 7 :
was his cobrother. He has also admitted that documents, Exb.DW1/1 to DW1/4 do not bear signatures of Gurdiyal Singh.
13 DW.3 Makhan Singh has been examined by the defendant to prove construction of the 'suit property' by him. DW.3 in his affidavit, Exb.DW.3/A has deposed that he was working as a labour (baildar) and worked at the 'suit property' as such till its construction there. He further stated after the construction of the 'suit property', the defendant along with his family started residing there. In crossexamination, he stated that he did not know when the said plot was sold by Jaswant Singh to Gurdiyal Singh. He further stated that Kulwant Singh was a Mason and he has worked with him as a Baildar. He, however, stated that he could not tell the year of construction when it was completed.
14 DW.4, Mahender Singh has filed his affidavit, Exb.DW.4/1 and stated that he has attended the ceremony when defendant shifted to the 'suit property'. In his crossexamination, he stated that he did not know where khasra no.99 was situated. He, however, stated that he did not know what was written in his affidavit as he was illiterate.
15 DW.5, Sh. Surender Singh is Ahlmad from the court of Sh. Naresh Kumar Malhotra, Ld. Sr. Civil Judge, RCWest, Tis Hazari Courts, Delhi who Contd....7 of 13 : 8 :
had brought the case file of some litigation between the parties and was not crossexamined by the plaintiff.
16 DW.6, Sh. Preetam Singh has filed his affidavit Exb.DW.4/A stating that his father Santa Singh was the owner of entire khasra no.99 situated at village Jaitpur, Tehsil Mehrauli, New Delhi and now the locality was known as Saurav Vihar, Jaitpur, Badarpur, New Delhi. He has simply deposed that 2 Bigha 8 Biswas of Khasra no.99 as mentioned above, now the locality known as Saurav Vihar, has been sold by legal heirs of Santa Singh vide Agreement to Sell dated 03.06.1976. He further deposed that out of total sale consideration of Rs.10,000/; Rs.7,500/ has been received by all the legal heirs of Santa Singh including himself on 03.06.1976 vide separate receipt and they handed over actual, physical possession of the said land to Bachhan Singh. He further deposed that Rs.2,500/ was payable at the time of registration of Sale Deed.
He further deposed that he came to know that defendant purchased 67 sq. yds out of khasra no.99 now known as property bearing No. S118, gali no.2, Saurav Vihar, Hari Nagar, Extension, Jaitpur, New Delhi (suit property) from Jaswant Singh. In his crossexamination, he admitted that name of his father is not shown as one of the sellers of the 'suit property'. He further deposed that sale deed was executed in favour of Puran Singh and not Bachhan Singh. In his further crossexamination, he has deposed contradictory to his affidavit stating that Sale Deed was in favour of Puran Singh (plaintiff) and not Bachhan Singh;
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that consideration was received by his brother Arur Singh from Puran Singh and possession of the said property was given to Puran Singh. He further deposed that it was sale of share of Arur Singh.
17 It was argued on behalf of the plaintiff that defendant being sonin law of elder brother of plaintiff was allowed to live in the premises and his licence has been terminated vide legal notice dated 19.03.2009. It is further argued that plaintiff is owner of the 'suit property' in view of Sale Deed, Exb.PW1/B. It is further argued that DW.1 in para no.6 of his affidavit has asserted that he has purchased the 'suit property' from his fatherinlaw and the documents relied are not registered documents in comparison to the documents of the plaintiff.
18 Defendant in the written arguments has assailed the testimony of plaintiff's witness namely PW.1 Manjit Singh who has stated that he did not know as to which land, sale deed, Exb.PW.1/B pertains. It is further argued that PW.1 has further deposed that he was not aware of any transaction related to khasra no.99 and whatever was deposed by him was at instructions of his father. In the written arguments, they have relied upon Khasra Girdwari for the year 197781 stating that Khasra Girdwari of Khasra no.99 for the year 20092013 Smt. Sant Kaur W/o Sh. Bachhan Singh as the owner of 1 Bigha 3 Biswas of khasra no.99. The Khasra Girdwari as has been mentioned in the Contd....9 of 13 : 10 :
written arguments, has not been proved as per law as nothing was pleaded by the defendant in that regard and the arguments in that regard are beyond pleadings.
19 It is further argued that plaintiff has, therefore, failed to prove that he was owner of the 'suit property' on the basis of Exb.PW.1/B as the said sale deed does not mention about khasra no.99 or that Arur Singh S/o Santa Singh was not having alleged title, interest or authority in the land to sell the same through sale deed, Exb.PW.1/B dated 04.01.1977.
20 During arguments, I have confronted both the Ld. Counsels with the law laid down by Hon'ble High Court of Delhi in the case of Smt. Usha Gupta Vs. Sh. Subhash Chand, reported as 2012 AIR CC 359 (DEL) decided on 28.11.2011 wherein it has been held in para no.5 that if from the plaint and the documents it is borne out that land involved is an agricultural land situated in a village as is evident from the fact that khasra number, as per revenue record has been mentioned in the plaint and not the municipal number, the character of the said land would remain as agricultural and not Abadi land and Delhi Land Reform Act would be applicable taking away the jurisdiction from the civil court which stand ousted u/s 185 of DLR Act. 21 Ld. counsel for plaintiff has submitted nothing with regard to the Contd....10 of 13 : 11 :
applicability of the said judgment to the facts and circumstances of the present case. Ld. counsel for defendant has willingly agreed to the proposition and the citation and stated that inadvertently he has not taken the said objection in his written statement.
22 Ld. counsel for plaintiff has argued nothing with regard to the applicability of DLR Act to the declaration of ownership sought by the plaintiff with respect to agricultural land i.e. 'suit property' as find mention in the sale deed, Exb.PW.1/B. No claim has been made by the plaintiff to the fact that land in question is not an agricultural land but an Abadi land and DLR Act is not applicable to it.
23 I have perused the sale deed, Exb.PW.1/B wherein at page no.2, it is clearly stated that vendor is the owner of agricultural land area about 4 Bighas out of the total land area 44 Bighas 5 Biswas, khasra no.36/4(112), 53(416), 98(416), 99(416), 97/2(117), 629/2(28), 630(416), 631(416), 632(416), 633(416), 740(416) situated in village Jaitpur, Tehsil Mehrauli, New Delhi. Nothing is brought on record by the plaintiff to the effect that if any notification has been issued U/s 567 of Delhi Municipal Corporation Act, 1957 declaring that area as urbanized area where the 'suit property' is situated. In the case of Usha Gupta (Supra) in para no.7 it is held that "Thus it clear that no suit for ejectment and / or possession in respect of land to which DLR Act is Contd....11 of 13 : 12 :
applicable, is maintainable before civil court as remedy lies before Revenue Assistant in this regard. The jurisdiction of civil court is ousted U/s 185 of DLR Act.". It is further held in para no.9 of the said judgment that suit for declaration and partition of agricultural land shall be barred U/s 185 of DLR Act. For these reasons, plaintiff cannot seek declaration of his ownership on the 'suit property' and having a valid title for the same in the civil court on the basis of sale deed, Exb.PW.1/B, which has described the land on which 'suit property' is built up as agricultural land. The suit for such declaration and possession of the same is barred by the provisions of section 185 of DLR Act. Issue no.1 is accordingly decided against the plaintiff.
ISSUE NO.2 :
Whether plaintiff is entitled to possession of the suit premises? OPP 24 Since issue no.1 has been decided against the plaintiff holding that this court has no jurisdiction to declare the plaintiff as owner of the 'suit property', the plaintiff cannot seek possession of the 'suit property' by filing the present suit. Issue no.2 is accordingly decided in above terms against the plaintiff.
ISSUE NO.3 :
"Whether plaintiff is entitled to mesne profits? If so, at what rate and from when?"
25. Since suit of the plaintiff is not maintainable in this court and he is not entitled to declaration of his ownership qua the 'suit property' and is not entitled to seek possession of the same before this court, therefore, issue no.3 Contd....12 of 13 : 13 :
is also decided against the plaintiff.
ISSUE NO.4 :
"Whether the suit property has not been properly valued? OPD"
26 The onus to prove this issue was upon the defendant. Issues no.1 to 3 have been decided against the plaintiff holding that this court has no jurisdiction to entertain the present suit. As such, there is no requirement of any finding on issue no.4. Moreover, none of the parties have led any evidence to prove this issue and the same is accordingly decided in the above terms. RELIEF :
In view of my findings on issues no.1 to 4, the plaintiff is not entitled to the reliefs claimed in the present suit. The suit is accordingly dismissed.
27 In view of facts and circumstances of the case, the parties are left to bear their own costs. Decree sheet be drawn accordingly. The file be consigned to Record Room after completion of necessary formalities. Dictated and announced in the open court on 05.03.2015 (RAJ KUMAR CHAUHAN) ADJ04 (South) Saket Courts / New Delhi 05.03.2015 Contd....13 of 13