Delhi District Court
Akhand Hindustan Parishad vs Inder Singh S/O Late Sh. Bhagwan Das on 3 October, 2013
: 1:
IN THE COURT OF SH. KISHOR KUMAR : CIVIL JUDGE12 (CENTRAL),
TIS HAZARI COURTS, DELHI
SUIT NO : 140/13
In the matter of :
AKHAND HINDUSTAN PARISHAD
HAVING ITS OFFICE AT
S562, SCHOOL BLOCK
SHAKARPUR, DELHI.
......PLAINTIFF
VERSUS
1. INDER SINGH S/O LATE SH. BHAGWAN DAS
R/O VILLAGE DARYAPUR KALAN, DELHI.
2. SRI TARA CHAND S/O LATE SRI BHAGWAN DAS
R/O VILLAGE DARYAPUR KALAN, DELHI.
3. SRI HUKUM SINGH S/O LATE SRI BHAGWAN DAS
R/O VILLAGE DARYAPUR KALAN, DELHI.
4. SRI GULAB SINGH S/O LATE SRI BHAGWAN DAS
R/O VILLAGE DARYAPUR KALAN, DELHI.
5. SRI RADHEY SHYAM SHARMA S/O PT. CHATTER SINGH
R/O VILLAGE HAREWALI, DELHI.
6. SRI OM PRAKASH LAMBA S/O CH. SHANKAR SINGH
R/O VILLAGE HAREWALI, DELHI.
7. DR. UMA DUTT S/O GUGAN
R/O VILLAGE HAREWALI, DELHI.
P.No. 1 Of 25
: 2:
8. SRI JAI BHAGWAN S/O SRI DHARA
R/O VILLAGE HAREWALI, DELHI.
9. MANAGEMENT COMMITTEE
MANDIR SHRI KRISHAN BHAGWANJI,
VILLAGE HAREWALI, DELHI.
.....DEFENDANTS
Date of Institution: 24.08.2001
Reserved for Judgment: 25.09.2013
Date of decision: 03.10.2013
SUIT FOR PERMANENT INJUNCTION
JUDGMENT:
1. This is a suit filed by plaintiff Parishad for permanent injunction that it is a voluntary nonprofit organization and in furtherance of its objective has conceived a Samarak in the name of Rashtriya Smriti Mandir depicting the glorious history of struggle of 1300 years and survival of Hinduism despite onslaught of Mughal, Purtgal and English invasions. One Sh. Bhagwan Dass was mutated owner in possession of land bearing no. 44/10, 11, 12, 18, 19, 29, 45/04, 5,6,7,14,15,16,37/24, 45/17, 23 and 49/3/1 measuring about 69 bigha and 4 biswas situated in the revenue estate of village Harewali , Bawana. Said Sh. Bhagwan Dass was father of defendant no. 1 to 4 who had agreed to sell the P.No. 2 Of 25 : 3: suit land to the plaintiff Parishad vide agreement to sell dated 10.05.2000. As per terms of the agreement to sell, plaintiff Parishad was to purchase the suit land for total consideration of Rs. 65 lacs out of which Rs. 1, 01,000/(Rs. One lac one thousand only) was paid as token money at the time of execution of agreement and payment of Rs. 5,99,000/ was paid vide cheque no. 71506 dated 10.05.2000. In part performance of the said agreement to sell, deceased Bhagwan Dass delivered peaceful vacant possession of suit land to the plaintiff Parishad alongwith fixtures attached thereto including 4 tubewells. The deceased assisted by defendant no. 1 to 4 had represented plaintiff Parishad about their clear title over the suit property having succeeded the same on the basis of a Will dated 23.01.1996. Bhagwan Dass expired on 20.07.2000. Defendant no. 1 to 4 have succeeded him and agreed to abide by the terms of the agreement to sell dated 10.05.2000 and undertook to perform their remaining part of performance of the agreement to sell dated 10.05.2000 executed between deceased owner and plaintiff Parishad. After demise of Bhagwan Dass, some time in the month of September 2000 defendant no. 6, 7 and 8 claiming member of Vigilant Citizen, Super Power committee, Harewali manipulated complaint dated 08.08.2000 resulting into filing of kalandra P.No. 3 Of 25 : 4: under section 145 Cr.P.C. in respect of land in khasra no. 44/10, 11,12,18,29 measuring about 12 bigha, 12 biswa, on the premise that said land belong to common mandir. Defendant no. 5 to 8 although have no individual or collective land holding anywhere near or around the suit land nor they have any direct connection with the suit land. Defendant no. 1 to 4 though shown as opposite party in the kalandra but have not initiated any steps for disposal of the said proceedings. Defendant no. 1 to 4 despite repeated representation and assurance of the plaintiff Parishad have not ensured mutation of the suit land in their name . Every time defendant no. 1 to 4 avoided the matter on one pretext or the other. Hence, the present suit for permanent injunction thereby restraining defendant no. 1 to 8 , their family members etc. from interfering in any manner in the peaceful possession of the suit land.
2. Defendant no. 1 to 4 filed their joint WS submitting that they are the successors in interest of deceased Bhagwan Dass who was chela/successor of Sh. Manohar Dass. Sh. Manohar Dass had acquired land at two connected places one comprised of 22 bigha 9 biswa and other 36 bigha 13 biswa which after chakbandi (consolidation) was brought adjacent to each other and became consolidated total land of 68 bigha 16 biswa . It was on 13.04.1939 P.No. 4 Of 25 : 5: that the previous owners who were impleaded as defendant no. 3 to 96 in civil suit no. 16/45 have gifted to defendant no. 2 Sh. Manohar Dass 22 bigha 1 biswa, one patch of land 36 bigha 13 biswa other patch of land although in the name of mandir Shri Krishan Bhagwanji and mutation to this effect was brought on record. A suit challenging the gift was filed on 04.01.1945 which had been dismissed vide order dated 03.01.1947 by the Senior Civil Judge, Delhi title of Sh. Manohar Dass became absolute albeit in the name of Shri Mandir Shri Krishan Bhagwanji, Sh. Manohar Dass had been managing the said land single handedly as there was neither a mandir on the said land at that point of time, nor there was any occasion for construction of the same and as such name of Mandir Shri Krishan Bhagwanji is merely a name chosen out of respect but the title exclusively vested with Manohar Dass who developed the said land and used it for agricultural purposes and installed three tubewells. After Manohar Dass, Shri Bhagwan Dass father of the defendants succeeded the title over the suit land by virtue of long user of exclusive management of the suit land. Shri Manohar Dass and thereafter Sh. Bhagwan Dass became owner of suit land. Mandir Shri Krishan Bhagwanji is not a legal entity to sustain mutation in its name. Only mandir which has P.No. 5 Of 25 : 6: come up in the village was on a piece of land allotted in the year 1992 to Gram Vikas Samiti acting through one Sh. Sita Ram Vashisht its Vice President. The said allotment was done to develop a religious place and MCD vide letter no. 75/1A dated 10.05.1991 has allotted 294 sq. yard of land to Gram Samiti who had initially developed a Shiv Mandir but after the present dispute defendant no. 5 to 8 somehow manipulated the installation of statue of Shri Krishna Bhagwanji also. Sh Bhagwan Dass was the sole owner of the suit land and thus was competent to enter into sale agreement dated 10.05.2000. Defendant no. 1 to 4 have succeeded by virtue of Will dated 23.01.1996 and are competent to discharge remaining part of said agreement. Defendants admitted that possession of the land has been delivered to the plaintiff under the terms of agreement dated 10.05.2000. At last defendant no. 1 to 4 have submitted that they have no objection if the relief claimed in the present suit is allowed in favour of plaintiff.
3. Defendant no. 5 to 8 also filed their joint written statement submitting that suit land was originally Shamlat land of village and the villagers were having right and title over the said land as the same was left from their own shares which was kept for maintaining and upkeeping the P.No. 6 Of 25 : 7: temple of Lord Krishna situated in village Harewali. The villagers were keeping a managercumpujari in the temple to manage affairs. Entire land belong to temple. As a precautionary measure that some person, manager or the pujari may not at any point of time claim either ownership or partition of the suit land, villagers approached revenue authorities and explained entire situation in writing on 17.12.1932 which resulted in attestation of mutation by the revenue authorities vide order dated 09.02.1933 in the name of Mandir Shri Krishan Bhagwanji to be managed by one Sadhu/pujari namely Manohar Dass. Sh. Manohar Dass was also having one chela namely Sh. Bhagwan Dass. As such Sh. Bhagwan Dass had no authority to enter into any agreement to sell regarding the land in question. Agreement to sell dated 10.05.2000 is a nullity in the eyes of law. Sh. Bhagwan Dass died at the age of 102 years and for the last two years he was ill and was confined to bed. He was not keeping sound health and sound mind. Defendant no. 1 to 4 in connivance with plaintiff got prepared a receipt and agreement to sell regarding the land belonging to the temple and got thumb impression of Bhagwan Dass without his consent and knowledge as he was on death bed. Defendant no. 5 as President of vigilant citizen of society after receiving information from newspaper that temple land P.No. 7 Of 25 : 8: has been sold on the basis of agreement by late Sh. Bhagwan Dass, lodged a complaint u/s 406 IPC with PS Narela on 15.07.2000. Defendant no. 1 to 4 started creating trouble regarding the suit land which was resisted by the villagers resulting into filing of kalandra u/s 107/150 Cr.P.C., on 08.08.2000 wherein defendant no. 1 to 4 filed their reply that suit land has not been sold to the plaintiff and that they are in possession thereof. Since, the matter regarding mutation after death of Bhagwan Singh was being examined by the revenue authorities and on 22.08.2001, the SDM Narela alongwith other revenue staff reached on spot to make a physical inspection of the temple and its land, he called a general meeting of village Harewali in the Chaupal (Community Center) and decided to hand over the Management of the temple and its land to a joint management committee comprising of 10 prominent villagers at the request of villagers. The villagers took this decision before the SDM only to safeguard the rights of the land belonging to the temple and for better management of the same. Instead of appointing single person, the Management committee comprising of 10 persons have been appointed by the villagers in the presence of SDM and the same has been approved and recommended by the SDM on spot.
P.No. 8 Of 25 : 9:
4. The applicant management committee Mandir Shri Krishan Bhagwan Ji Village Harewali, Delhi has also been impleaded as defendant to the present suit as defendant no. 9 on allowing of its application under Order 1 Rule 10 CPC. However, no WS has been filed by defendant no. 9. Plaintiff filed replication to the respective set of written statements of defendants wherein plaintiff has reiterated and reaffirmed its case as contained in the plaint and denied the allegations/submissions of the defendants in totality.
5. On the basis of pleadings of parties, following issues were framed for trial:
1. Whether the plaintiff is permitted to decree of permanent injunction against defendant no. 1 to 8 as prayed in para no. 9 of their plaint? OPP
2. Relief.
6. Plaintiff Parishad examined PW1 Sh. B.L. Sharma Prem who has tendered his affidavit in evidence Ex.PW1/A bearing his signatures at point A & B. He has relied upon documents Ex.PW1/1 (Resolution) & Ex.PW1/2 (agreement to sell dated 10.05.2000).
7. On the other hand, defendant no. 1 examined himself as DW1 who tendered his affidavit in evidence Ex. DW1/A bearing his signatures at P.No. 9 Of 25 : 10 : point A and B. he has relied upon documents Ex. DW1/1 (colly) (Revenue Record).
8. Defendants also examined DW2 Sh Suraj Bhan, Patwari, Tehsil Narela who had brought the summoned record i.e. khasra girdawari for the year 19992000 in respect of suit property Ex. DW2/1 and the copy of jamabandi for the year 1997 Ex. DW2/2.
9. Defendant no. 3 Hukum Singh examined himself as DW3, tendered his affidavit in evidence Ex. DW3/A bearing his signatures at point A and B. He has relied upon document already Ex. DW1/1(colly) (Revenue Record).
10. Defendant no. 4 Gulab Singh examined himself as DW4, tendered his affidavit in evidence as Ex. DW4/A, bearing his signatures at point A and B. He has relied upon document already Ex. DW1/1(colly) (Revenue Record).
11. Defendants also examined DW5 Sh. Ashwani Kumar, Halka Patwari, SDM Narela who had brought the summoned record i.e. khatoni for the year 199798 Ex. DW5/1 having been prepared by him as per record.
12. DW5 (wrongly mentioned as DW5) Jagdish Chand, Patwari Tehsil building has brought the summoned record of jama talashi for the year P.No. 10 Of 25 : 11 : 196970 Ex. D5/1 and copy of khatoni Ex. D5/2.
13. Defendant no. 5,6 and 8 in support of their case have examined DW6 Sh. Radhey Shyam Sharma who has tender his affidavit in evidence Ex. DW6/A, bearing his signatures at point A and B. He has relied upon documents Ex. DW6/1 to DW6/4. Documents Ex. DW6/5 to DW6/7 were deexhibited and given Mark as Z3 to Z5.
14. Defendant no. 5, 6 and 8 also examined DW7 Sh Ramesh Kumar Patwari, Sadar Kanoongo Branch, Revenue Department Tis Hazari, Delhi. DW7 had brought the summoned record i.e. mutation register entry no. 296 Ex. DW7/1 (colly.).
15. I have heard learned counsel for plaintiff, learned counsel for defendants and have carefully gone through the record.
16. My issuewise findings are as follows:
ISSUE NO. 1:
Whether the plaintiff is permitted to decree of permanent injunction against defendant no. 1 to 8 as prayed in para no. 9 of their plaint? OPP.
Onus to prove this issue was on plaintiff. The case of the plaintiff is that they purchased suit property bearing no. 44/10, 11, 12, 18, 19, 29, 45/04, P.No. 11 Of 25 : 12 : 5,6,7,14,15,16,37/24, 45/17, 23 and 49/3/1 measuring about 69 bighas and 4 biswas situated in the revenue state of Harevali Bawana and also took its possession after payment of part amount of consideration to late Sh. Bhagwan Dass who is father of defendant no. 1 to 4; that now defendant no. 5 to 8 are interfering in the peaceful possession of suit property on one ground or the other. Hence, present suit for permanent injunction to the effect to restrain defendants from interfering in the possession of the plaintiff Parishad in respect of the suit property.
17. Defendant no. 1 to 4 initially filed their written statement submitting that their father late Bhagwan Dass had sold the suit property to plaintiff Parishad and the suit property as per law of inheritance as also by virtue of Will dated 23.01.1996, devolved upon defendant no. 1 to 4. Defendant no. 1 to 4 also claimed themselves competent persons to discharge the remaining part of agreement to sell dated 10.05.2000 entered into by their father late Bhagwan Dass with plaintiff Parishad. Defendant no. 1 to 4 further admitted that possession of the suit land has been delivered to the plaintiff under the terms of agreement dated 10.05.2000.
18. On the other hand, defendant no. 5 to 8 have submitted that late P.No. 12 Of 25 : 13 : Sh Bhagwan Dass was never the owner of the suit land and he was merely a caretaker of Mandir Shri Krishan Bhagwanji and the suit land had always been in the name of said Mandir Shri Krishan Bhagwanji . Defendant no. 4 to 8 have also submitted that late Sh Bhagwan Dass and after his death defendant no. 1 to 4 have had no right, title or interest to enter into any agreement to sell for the purpose of selling the suit property.
19. Defendant no. 1 Inder Singh as DW1 has deposed in his affidavit in evidence Ex. DW1/A that after death of Sh. Bhagwan Dass defendant no. 1 to 4 acquired the possession of suit property, no mandir exists over there and defendant no. 1 to 4 are managing and cultivating the suit property after demise of Bhagwan Dass. This part of deposition of DW1 is entirely alien to written statement of defendant no. 1 to 4 wherein they had averred that possession of the suit property was delivered to plaintiff Parishad.
20. DW1 has been cross examined by learned counsel for plaintiff as also by defendant no. 5, 6 and 8. In his crossexamination, DW1 has deposed that it is correct that Manohar Dass late father of Bhagwan Dass was Pujari/caretaker of the temple but he also volunteered that he was owner of suit property. DW1 further admitted that in all the documents like khasra P.No. 13 Of 25 : 14 : girdawari , jamabandi etc. temple Bhagwan Shri Krishanji maharaj is shown as owner. DW1 could not place on record any document to show the ownership of Manohar Lal or for that matter of late Sh. Bhagwan Dass in respect of suit property.
21. DW2 Patwari tehsil Narela had brought the khasra girdawari for the year 19992000 of the suit property Ex. DW2/1 and jamabandi for the year 1997 Ex. DW2/2. As per Ex. DW2/2 (khatoni) entire chunk of suit property comprised in various khasra numbers are recorded in the name of bhumidar as Mandir Shri Krishan Bhagwanji.
22. DW3 Hukum Singh S/o late Sh. Bhagwan Dass in his affidavit in evidence Ex. DW3/A has deposed that after the death of Sh. Bhagwan Dass, defendant no. 1 to 4 are cultivating on the suit property. This affidavit of DW3 being defendant no. 3 is in contradiction to the joint written statement of defendant no. 1 to 4. In their written statement defendant no. 1 to 4 have categorically averred that actual physical possession of the entire suit land had been given to the plaintiff Parishad. DW3 has been crossexamined by learned counsel for plaintiff. DW3 deposed in his cross examination that in the year 2000, the plaintiff parishad had performed Bhoomi pujan at the suit P.No. 14 Of 25 : 15 : property and he was also present there at that time. DW3 also knew what is written in their written statement. But he deposed that disputed land is with defendant no. 1 to 4. he further admitted execution of agreement to sell dated by his father late Sh Bhagwan Dass but denied the suggestion that his father had also given possession of the suit property to the plaintiff at the time of execution of agreement to sell.
23. DW3 has also been cross examined by counsel for defendant no. 5 , 6 and 8. DW1 deposed that it is correct that the suit property belongs to temple and Sh. Manohar Dass was looking after the suit property being pujari. DW3 denied the suggestion that possession of suit property is with the managing committee of temple.
24. DW4 Gulab Singh in his affidavit in evidence Ex. DW4/A has deposed on the similar lines as that of DW1 and DW3 that suit property is in their possession and cultivation. This witness has been cross examined by learned counsel for plaintiff. He admitted that the property in dispute was earlier owned by his father late Sh Bhagwan Dass and that he has filed written statement and contents thereof are correct. DW4 has also been cross examined by learned counsel for defendant no. 5, 6 and 8. In his cross P.No. 15 Of 25 : 16 : examination, DW4 has deposed that it is correct that suit property is in the name of temple in revenue record but denied the suggestion that suit property is with managing committee of the temple.
25. DW5 Ashwani Kumar Halka Patwari SDM Narela has brought the summoned record i.e. Ex. DW5/1. DW5/1 is the khatoni for the year 199798. As per Ex. DW5/1, suit property is in the name of Mandir Shri Krishan Bhagwanji. But in his cross examination DW5 could not tell who was cultivating the suit property.
26. DW5 (wrongly typed) Sh. Jagdish Chand Patwari, Tehhsil Building, had produced jamabandi for year 196970 in respect of suit property Ex. D5/1 and khatoni Ex. D5/2. As per Ex. DW5/1, the suit property is recorded in the name of Mandir Shri Krishan Bhagwanji. Ex. DW5/2 is also to the same effect.
27. Other side, defendant no. 5, 6 and 8 in support of their case examined DW6 Radhey Shyam Sharma who in his affidavit in evidence Ex. DW6/A has deposed that entire suit land was originally Shamlat land and villagers were having right over it. Rest of the averments in the affidavit of DW6 Radhey Shyam Sharma are as per their written statement. DW6 has P.No. 16 Of 25 : 17 : been cross examined by learned counsel for the plaintiff. He deposed that he works in Delhi Police as SubInspector. He came to know about the transaction between plaintiff and late Sh Bhagwan Das through newspaper in the month of June/July 2000. The news items was published by the plaintiff. In the said news item it was mentioned that the plaintiff has purchased 70 bighas of land of Harevali village for construction of temple at National level namely Rashtriya Smiriti Mandir. DW6 further deposed that bhumi pujan ceremony was conducted by the plaintiff at the suit land after purchase. Villagers protested said bhoomi pujan ceremony and filed a complaint on 15.07.2000, copy of which is Mark Z. He admitted that there is no temple on the suit property. He admitted that there is one temple of Lord Krishna in the village i.e. about 250 meters away from the suit property. DW6 Radhey Shyam Sharma further deposed in his crossexamination that presently sons of Bhagwan Dass i.e. defendant no. 1 to 4 are cultivating the suit property. He denied the suggestion that actual possession of suit property is of the plaintiff. The vigilant society has been got registered in the year 1990 approximately and defendant no. 6 is its founding member. At the time of crossexamination of DW6 Radhey Shyam on dated 12.10.2012, he was not the President of the P.No. 17 Of 25 : 18 : society. He remained President of the said society for about 1012 years after 1990 and at present there is no elected President of the society but working President is Sh. Omprakash for the last 23 years. He denied the suggestion that managing committee made by the SDM of the area is not functioning. This managing committee was formed by SDM in the year 2001. At that time DW6 was its President. Function of the managing committee was to protect the land and contest/defence cases regarding suit land. In his further cross examination DW6 Radhey Shyam admitted that it is correct that villagers have not filed any suit regarding the land in question till date. It were the villagers who went to defendant no. 1 to 4 after death of Bhagwan Dass for taking possession of suit land. Some dispute arose on spot regarding possession of suit land and police filed kalandra u/s 107/150 Cr.P.C. in the court of SDM.
28. DW7 Ramesh Kumar Patwari has proved the record in respect of the suit land as Ex. DW7/1. DW7/1 is photocopy of intkal no. 296 mauza Harewali. Ex. DW7/1 is entirely in Urdu language and the court is unable to read the same for want of its translation either in Hindi language or English language. DW7 has been cross examined by learned counsel for the plaintiff. DW1 did not know anything about the document Ex. DW7/1 , same being in P.No. 18 Of 25 : 19 : Urdu language.
29. Coming back to the case of plaintiff, plaintiff Parishad in support of its case has examined PW1 Sh B.L. Sharma Prem. He in his affidavit in evidence Ex. PW1/A has deposed on the same lines as contained in the plaint. PW1 has been crossexamined at great length by the defendants. In his cross examination by defendant no. 5, 6 and 8, PW1 has deposed that there was no property dealer in the transaction in question either before execution of agreement to sell dated 10.05.2000 Ex. PW1/2 or at the time of execution thereof. At the time of execution of Ex. PW1/2, PW1 and one of their executive member namely Sh. Kiran Pal Tyagi were present. PW1 had confirmed before execution of Ex. PW1/2 that the disputed land is in the name of Bhagwan Dass from the office of Deputy Commissioner revenue but admittedly PW1 did not get any revenue record from DC office or from Patwari before execution of Ex. PW1/2. PW1 had no knowledge at the time of execution of Ex. PW1/2 that the land in dispute was originally Shamlat land of the village and villagers have given said land to Mandir known as Shri Krishan Bhagwanji. PW1 also did not have any knowledge that the revenue authorities have mutated the suit land in favour of Mandir Shri Krishan P.No. 19 Of 25 : 20 : Bhagwanji. He also did not know if Sh. Manohar Dass was pujari of temple before Sh. Bhagwan Dass. PW1 further deposed that he had never any dispute with any of the villager at any point of time in respect of suit land but volunteered that at the time of performing hawan on 14.08.2000 at the site, some villagers started creating dispute and police interfered. He admitted that police filed a kalandra in the court of SDM concerned. Agreement to sell Ex. PW1/2 was executed at the residence of late Bhagwan Dass. But this witness did not remember if age of Bhagwan Dass at that time was about 102 years. He denied the suggestion that Bhagwan Dass was ill and confined to bed at that time. PW1 also had no knowledge if Bhagwan Dass executed any Will dated 23.01.1996. He also denied the suggestion that the vigilant committee is in possession of the suit land. As per PW1, suit land is in their possession. Admittedly, PW1 had not moved any application before the concerned revenue authorities for mutation of the suit land in their favour on the basis of Ex. PW1/2. The Patwari or the SDM never visited suit land in the presence of PW1. PW1 never told Patwari of the area to make entry in the revenue record of plaintiff Parishad. Admittedly, no other suit has been filed by plaintiff on the basis of Ex. PW1/2 except the present suit. PW1 further admitted that as P.No. 20 Of 25 : 21 : per para no. 3 of Ex. PW1/2, balance payment of Rs. 58 lacs was to be paid within a period of one year from the date of execution of Ex. PW1/2. Here, PW1 volunteered that the payment has neither been demanded by the vendor nor by his legal heirs till date. Bhagwan Dass expired within one year from the date of execution of PW1/2 but PW1 had not written any letter till date to the LRs of Bhagwan Dass that plaintiff is ready to make the payment. Agreement Ex. PW1/2 was got typed by PW1 in his office and thereafter this agreement was taken by him to the house of Bhagwan Dass who signed it at his residence. Except hawan performed on 14.08.2000, no other hawan has been performed by the plaintiff society. PW1 did not remember if Sh. Bhagwan Dass was present on 14.08.2000 at the time of hawan ceremony though he was alive on said date. Bhagwan Dass came on the spot three four times to PW1.
30. PW1 has also been cross examined by counsel for defendant no. 1 to 4 on dated 03.04.2012. PW1 deposed that he had seen suit property about 6 months back. There were two tubewells installed at the suit property. However, PW1 could not tell the sanctioned load of electricity connection nor he could tell the name of the crop grown at present at the suit property but six months back wheat was grown there. Suit property is not constructed. PW1 P.No. 21 Of 25 : 22 : had not seen any garden at the suit property. Prior to filing of the present suit a legal notice was served upon defendant no. 1 to 4 but he did not remember if copy of legal notice has been filed on record or not. PW1 had met defendant no. 1 to 4 twice after filing present suit. PW1 denied the suggestion that no money has been given to defendant no. 1 to 4. As per PW1, Rs. one lac in cash and Rs. 5,99,000/ by way of cheque were given to the family members of defendant no. 1 to 4. Cheque was in the name of Sh. Bhagwan Dass. Amount in cash was given to Bhagwan Dass and his family members. PW1 further deposed that the possession of suit property at present is of defendant no. 1 to
4. No receipt in the sub registrar office was registered. No bank draft was prepared in respect of the payment. Rest of the cross examination of PW1 is in the form of suggestion.
31. From the evidence in the form of depositions of witnesses examined on record as also in view of various documents filed and proved on record, it emerges that it cannot safely be said that plaintiff Parishad is in possession of the suit property. The observation of this court in this regard also finds strength from the cross examination of PW1 conducted on 03.04.2012 by learned counsel for defendant no. 1 to 4 that the possession of P.No. 22 Of 25 : 23 : suit property at present is of defendant no. 1 to 4. Present case of the plaintiff being of permanent injunction to restrain the defendants from enjoying the peaceful possession of the suit land goes to the wind in view of admission on the part of PW1 that at present possession of the suit property is with defendant no. 1 to 4. One who himself is not in possession of the suit property cannot be given relief of permanent injunction that others should be restrained from enjoyment/peaceful possession of land or any other things. The plaintiff Parishad instead of filing present suit for specific performance has filed the present suit for permanent injunction restraining the defendant from disturbing the peaceful possession of the plaintiff society. But admittedly as per PW1 as deposed by him in his crossexamination that defendant no. 1 to 4 are in possession of suit land, relief of permanent injunction under these circumstances cannot be granted to the plaintiff. Apart from this, plaintiff Parishad has not pleaded in the plaint as if it is or it was ever ready to perform its part of contract in terms of agreement to sell dated 10.05.2000 Ex. PW1/2. An efficacious remedy was available with the plaintiff society to get performed the agreement to sell Ex. PW1/2 executed by LRs of late Bhagwan Dass i.e. defendant no. 1 to 4. Be that as it may. Fact remains that under these P.No. 23 Of 25 : 24 : circumstances since plaintiff has not been able to prove either by way of oral testimony or on the basis of any documentary proof that it is in the possession of suit property, the relief of permanent injunction as prayed for in the present suit, cannot be granted to plaintiff. The title in respect of suit property is also a disputed fact.
32. In AIR 2008 Supreme Court 2033, Hon'ble Supreme Court had held where a cloud is raised over plaintiffs title and he does not have possession, a suit for declaration and possession with or without a consequential injunction is the remedy. The plaintiff has not been able to prove on record that as on the date of suit it was in lawful possession of suit property and defendants tried to interfere or disturb such lawful possession. Hence, this issue is accordingly decided against plaintiff.
33. During the course of arguments, learned counsel for the plaintiff has argued that possession of the plaintiff is to be protected under section 53 A of the Specific Relief Act in view of agreement to sell dated 10.05.2000 Ex. PW1/2. However, this court is not convinced with the argument of learned counsel for plaintiff in view of judgment of Hon'ble High Court of Delhi in AIR 2003 Delhi 123 where their Lordships have held that an agreement is not a P.No. 24 Of 25 : 25 : document of transfer nor by reason of execution of a power of attorney, the right, title or interest of an immovable can be transferred. Such a transfer can only be effected by executing a registered document as provided under section 54 of Transfer of Property Act read with section 17 of the Indian Registration Act. This issue is accordingly decided against the plaintiff.
34. RELIEF.
In view of my above discussions hereinabove, present suit is hereby dismissed with no orders as to costs. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open court on 03rd October, 2013 (KISHOR KUMAR) Civil Judge12/Central/THC Delhi P.No. 25 Of 25