Delhi District Court
Sh. Mangal Singh vs Sh. Sewa Singh on 17 December, 2016
IN THE COURT OF MS. NEHA, CIVIL JUDGE09,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Suit No : 331/16 (old no. 471/2014)
Sh. Mangal Singh
S/o Sh. Veer Singh Bedi
R/o 5816, Gali No. 4, Gobind Garh,
Bapa Nagar, Tank Road,
Karol Bagh, New Delhi. .... Plaintiff.
Versus
Sh. Sewa Singh
S/o Sh. Bishan Singh
Temporary resident of H16, 17/5,
Gobind Garh, Bapa Nagar,
Gali No. 4, Gurdwara Gobind Garh,
Tank Road, New Delhi. .... Defendant.
SUIT FOR DECLARATION, POSSESSION AND PERMANENT
INJUNCTION.
Date of Institution : 16.01.1996
Date of reserving Judgment : 22.10.2016
Date of pronouncement : 17.12.2016
JUDGMENT
1. Vide this Judgment, I shall dispose of the suit of the plaintiff seeking a decree of declaration, possession and permanent injunction.
Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 1 of 45.
2. Brief facts as stated in the plaint are as follows : 2.1. The plaintiff is the owner of the property bearing No. 17/5, Gobind Garh, Gali No. 4, Bapa Nagar, Tank Road by adverse possession since 1950. The said plot was part of Khasra No. 1422/662/364/2, Village Saroda Khurd. In 1950, after the partition, the plaintiff along with his son and brother in law occupied the said area of the village which is now known as Gobind Garh, Tank Road and all of them had started the business of milk dairy. The land was shown in Khasra Girdawri as agricultural land in 1950 but there were no agricultural activities being carried out in the land as it was a hilly track / area unfit for agricultural purpose. The unauthorized colony which developed in the aforesaid area was known as Gobind Garh, Bapa Nagar.
2.2. In 1960, Delhi Municipal Corporation surveyed the land and allotted the municipal numbers. The suit property, on which Gurudwara had been constructed by the plaintiff in the year 1983, was also allotted the municipal number. The adjoining plots owned by the plaintiff's son Kulwant Singh and brother in law Man Singh were also allotted municipal numbers and all these plots were known as Block No. F, Gobind Garh, Gali No. 4. The plaintiff also made construction to carry out the dairy business.
2.3. In 1976, a fresh survey was done by MCD and the new municipal numbers were allotted in place of old numbers and the property in dispute measuring 200 Sq. Yds. was allotted municipal No. H16, 17/5, Gali No. 4, Gobind Garh, Bapa Nagar, Tank Road, New Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 2 of 45. Delhi. The said property was mutated in the name of the plaintiff and the plaintiff has paid house tax from 1976 onwards. It was assessed in the name of plaintiff for the year 1976 onwards. The plaintiff had declared his intention of holding the property as owner by adverse possession against the true owner or any person claiming from them. 2.4. There was a resolution of the Municipal Corporation to regularize the unauthorized constructions raised in unauthorized colony dated 10.10.1977. According to the resolution No. 144, it was directed by MCD not to demolish the unauthorized colonies which included the colony known as Gobind Garh, Bapa Nagar, Karol Bagh, New Delhi. 2.5. In the year 1976, the Corporation formulated a scheme to shift the milk dairies from the city towards Najafgarh Road. Ten square yards of space was allotted for each buffalo owned by the person to carry on the trade of milk dairy and the plaintiff was allotted 100 Sq. Yds. After shifting of the dairies in 1976, the plaintiff had reconstructed the complete building in existence as owner. The plaintiff had converted the building into a Gurudwara for religious purposes in the year 1983 which was in possession and has been managed by the plaintiff since beginning.
2.6. In the year 1984, during November riots, the Gurudwara was burnt down and the complaint was lodged with the police and later on the building was reconstructed. The water connection is in the name of the plaintiff. The electricity connection had also been sanctioned to the disputed property and the plaintiff had deposited Rs. 14,152/. 2.7. In the year 1988, defendant was appointed as a Granthi to Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 3 of 45. perform religious ceremonies at the monthly salary of Rs. 400/ besides the offerings made to him. The donations were accepted by the plaintiff to meet the expenses of the Gurudwara as the devotees were less in numbers and the plaintiff had to meet the deficit in expenses from his own pocket as it is not an institution running for any profits but it is just a religious institution.
2.8. Being a Granthi working for Gurdwara, the plaintiff had given one room measuring 10' x 10' to the defendant as a licensee and the whole Gurdwara building was in possession and under exclusive management of the plaintiff. The persons whose name was entered as owner in Khasra Girdwari of 1950 have never claimed any interest or rights in the property. The possession of the plaintiff is uninterruptedly with him and stands converted into ownership by adverse possession after 12 years period and once the right of the true owner stands extinguished, it cannot be revived neither in his favour nor in favour of any third person.
2.9. The defendant had been signing the salary receipts in a copy maintained by the plaintiff from 30.8.1991 to 30.8.1994 and further had been submitting the details of account of every month with his own hand writing to the plaintiff. However, the defendant has started claiming right in the whole of the property as derogatory to the right of the plaintiff recently and he is further obstructing the management of the Gurdwara by the plaintiff as owner of the property. The Gurdwara and its building belongs to the plaintiff solely as it has not be given to any trust or society rather it is the personal property of the plaintiff. The Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 4 of 45. services of the defendant have been terminated by a telegram sent on 9.1.1996 and as such he has no right to continue as a licencee in the room. After termination of license, the defendant is not vacating the room in his possession.
2.10. The defendant intends to sell the building itself falsely representing that he has acquired all the rights in the property. Hence, the plaintiff has filed the present suit seeking following reliefs:
"A decree for possession of the property bearing No. H 17/5, Block 16, Gobind Garh, Bapa Nagar, Tank Road, New Delhi in favour of the plaintiff and against the defendant or any person claiming through him and a decree for declaration that the plaintiff has become an absolute owner of the property by prescription of time. A decree for permanent injunction against the defendant from obstructing the plaintiff from entering in the Gurdwara building and further may be restrained from alienating, transferring or parting with the possession of the property".
3. The defendant has filed written statement. He has taken the following defence.
3.1. The plaintiff has not approached this court with clean hands. The suit is bad for non joinder of parties. It is stated that there exists a Gurudwara known as Gurudwara Guru Singh Sabha since December, 1981 and is under the management and control of the Committee of Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 5 of 45. persons appointed by the Gurudwara Prabandhak Committee. The Gurudwara is in existence since 1981 and pucca construction was raised in the year 198283 and the possession of Prabandhak Committee of the site in question is continuous, adverse and overt to the plaintiff. Hence, the said Gurudwara has acquired lawful right in the suit property and the plaintiff has at no point of time disputed the right of the Gurudwara Prabandhak Committee in any manner. The suit is bad for misjoinder of parties as the defendant is only a Granthi appointed by the Gurudwara and the defendant has no personal right over the suit property.
3.2. The suit is not properly valued for the purpose of court fees as under the garb of present suit, the plaintiff is claiming a title and possession of the suit property which is not in his possession and the value of the property is over Rs. One Crore forty lacs. This court has no pecuniary jurisdiction to try the present suit. The present suit is not maintainable as it is not stated in the plaint as to when the plaintiff was allegedly dispossessed from the suit property. 3.3. The plaintiff has himself stated that he has been allotted alternative site by the Government and the possession whereof has been taken over the plaintiff. As per Sikh Laws and religion, the suit property now vests with the Gurudwara Guru Singh Sabha and no individual can claim right over the same particularly after installation of 'Nishan Sahib' which was installed by Dr. Jaspal Singh, the Executive Secretary of the Delhi Gurudwara Prabandhak Committee. The suit is also time barred. Various records and documents are Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 6 of 45. missing from the Gurudwara and the same have apparently been stolen by the plaintiff with a view to cause wrongful gain to himself. 3.4. The plaintiff never had any legal right, title or interest in the suit land. Khasra numbers given in the plaint are also incorrect as the correct Khasra number of the plot is 1422/662/364/2. It is denied by the defendant that the plaintiff had ever constructed any Gurudwara in the suit property in the year 1983. Rest of the averments as made in the plaint are denied.
4. Plaintiff has filed replication. In the replication, plaintiff has submitted that there is no legal identity of Gurudwara Prabandhak Committee as alleged by the defendant as it is neither a registered society nor a trust and the defendant is estopped from challenging the title of the plaintiff being a licensee / employee under Section 62 (g) of the Indian Easement Act read with Section 117 of the Indian Evidence Act. Rest of the allegations made in the written statement are denied in the replication.
5. On completion of pleadings, following issues were framed by the Ld. Predecessor of this Court on 31.3.2005 for consideration :
1. Whether suit has been properly valued for the purpose of jurisdiction and court fees? OPP.
2. Whether this court has no pecuniary jurisdiction to entertain this suit? OPD.
3. Whether plaintiff has acquired ownership over the suit property i.e. property bearing No. 17/5, Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 7 of 45.
Govind Garh, Gali No. 4, Bapa Nagar, New Delhi by way of adverse possession or restriction of time? OPP.
4. Whether defendant was inducted as licencee in this property? OPP.
5. Whether suit is barred by time? OPD.
6. Whether suit property bears property No. H16/4? OPD.
7. Whether plaintiff is entitled for decree of declaration as prayed for? OPP.
8. Whether plaintiff is entitled for decree of possession as prayed for? OPP.
9. Whether plaintiff is entitled for decree of permanent injunction as prayed? OPP.
10. Relief.
6. The parties were then called upon to lead their respective evidence. The plaintiff examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A. The PW1 has relied upon the following documents :
1. Original allotment letter as Ex. PW1/1.
2. Water bill dated 8.6.1990 as Ex. PW1/2.
3. House tax receipt dated 12.8.1980, 12.8.1983, for the year 198384, for the year 198283, for the year 19921993, Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 8 of 45.
17.3.1994, 23.03.1995, for the year 199697, for the year 200001, for the year 200405 as Ex. PW1/3 to Ex.
PW1/12 respectively.
4. Certified copies of inspection book as Ex. PW1/13 and Ex.
PW1/14.
5. Certified copy of survey reports as Ex. PW1/15 and Ex.
PW1/16.
6. Note book containing receipts for various period between the year 199194 as Ex. PW1/17 and the receipts of expenses incurred on day to day basis as Ex. PW1/17 (Colly.).
7. Translation of some of the receipts as Mark A (Colly.).
8. Site plan as Ex. PW1/18.
9. Application for certified copy along with order of the Hon'ble High Court as Ex. PW1/18.
7. The plaintiff did not examine any other witness and plaintiff's evidence was closed vide order dated 15.11.2006. The matter was then listed for defence evidence.
8. In defence evidence, defendant examined himself as DW1 who had tendered his evidence by way of affidavit as Ex. DW1/1. DW1 relied upon the following documents :
1. Original pass book of bank account No. 2310 maintained in Punjab & Sind Bank, Connaught Place having entries from 4.5.1987 to 2.3.1989 as Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 9 of 45.
Ex. DW1/A.
2. Three coloured photographs showing signboard mounted on the Gurudwara as Ex. DW1/B1, Ex.
DW1/B2 and Ex. DW1/B3.
3. Six telephone bills of the telephone No. 25854385 showing the municipal number as Ex. DW1/C to Ex.
DW1/C5.
4. Two original Khasra Girdawri dated 11.10.1994 and 5.1.2000 showing the municipal number of Gurudwara as Ex. DW1/D and Ex. DW1/D1.
5. Copy of Ration Card as Ex. DW1/E.
6. Election ID cards of DW1 and his wife as Ex.
DW1/E1 and Ex. DW1/E2.
7. Birth Certificate of Amarjit Kaur as Ex. DW1/E3.
8. Birth Certificate of Gurbir Singh as Ex. DW1/E4.
9. Copy of passport of DW1 as Ex. DW1/E5.
10. Carbon copy of enumeration of Electoral Roll as Ex. DW1/E6.
11. Nine original letters / envelopes received on the suit property as Ex. DW1/F to Ex. DW1/F8.
12. Certified copy of reply of MCD dated 31.3.2000 in suit titled as 'Tarsem Singh Vs. Mangal Singh & Ors.' in suit No. 423/97 as Ex. DW1/G.
13. Certified copy of reply of DDA in suit No. 143/2000 titled as 'Mangal Singh Vs. Satender Pal Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 10 of 45.
Singh & Ors.' as Ex. DW1/G1.
14. Application dated 1.2.2005 as Ex. DW1/G2.
15. Receipt as Ex. DW1/G3.
16. Acknowledgment as Ex. DW1/G4.
17. Reply as Ex. DW1G5.
18. Copy of house tax receipt as Ex. DW1/G6.
19. Original receipt of installation of electricity vide K. No. 114042611802 as Ex. DW1/G7.
20. Certificate dated 6.11.1997 declaring the Gurudwara as Public property as Ex. DW1/H.
21. Certificate issued by President of Sikh Gurudwara Management Committee dated 8.11.1997 as Mark A.
22. Photocopy of registration certificate as Ex. DW1/I.
23. Original report of market value along with site plan as Ex. DW1/J (Colly.).
24. Photocopy of Electoral Roll as Mark B.
25. Copy of complaint dated 13.2.1996 as Mark C.
26. Copy of details of compensation paid for damage of dwelling unit during 1984 riots as Mark D.
27. Copy of letter dated 8.8.2006 of the SDM as Ex DW1/K, copy of envelope as Ex. DW1/K1.
9. Sh. Tarsem Singh was examined as DW2 who had tendered his evidence by way of affidavit as Ex. D2. He also relied upon the Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 11 of 45. documents already exhibited in the testimony of DW1.
10. Sh. Goverdhan Pd., clerk from the MTNL, Karol Bagh was examined as DW3. DW3 has produced the history of telephone No. 25854385 as Ex. DW3/A.
11. Sh. Phool Singh, a nearby resident of the Gurudwara, was examined as DW4. He tendered his evidence by way of affidavit as Ex. DW4/A.
12. Sh. Dalip Singh, LDC from the office of Registrar of Societies, was examined as DW5. He has produced the Registration Certificate of the Gurudwara Singh Sabha. The certificate is Ex. DW1/1.
13. Sh. Balraj Singh, Assistant Ahlmad in the Court of Ms. Geetanjali, Ld. Civil Judge, was examined as DW6. DW6 had produced the original file of suit no. 143/2000 titled as "Mangal Singh Vs. Satinder Pal Singh". He proved the certified copy of the written statement as Ex. DW6/A.
14. Sh. Prem Chand, from the office of Death and Birth Registration, Anand Parbat, Karol Bagh was examined as DW7. DW7 has produced the original record regarding birth certificate of Sh. Gurbir Singh and Ms. Amarjeet Kaur. The certificates are Ex. DW7/A and Ex. DW7/B. He had also produced the original register containing entries in respect of Amarjeet Kaur and Gurbir Singh. The extract of register in respect of Amarjeet Kaur is Ex. DW7/C and in respect of Gurbir Singh is Ex. DW7/D.
15. Sh. Arvind Gupta, Accountant in Keshav Sahakari Bank, Karol Bagh was examined as DW8. He had produced the statement of Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 12 of 45. account of Gurudwara Shri Guru Singh Sabha and filed the certified copy of same as Ex. DW8/A. He had also produced the certified copies of the documents for opening bank account as Ex. DW8/B (13 pages).
16. Sh. Shiv Dayal Mahtto, Bailiff in the office of SDM, Karol Bagh was examined as DW9. He had produced the original record of payment of compensation to Gurudwara Guru Singh Sabha. Certified copy of the same is Ex. DW9/A (Colly).
17. Sh. Kamleshwar Upadhyay from the office of Food and Supply Department was examined as DW10. He did not produce the summoned record as the complete details were not supplied.
18. Sh. Ashok Kumar, UDC from the office of Election Commission, was examined as DW11. He had produced the Electoral roll of the year 2009 and certified copy of the same as Ex. DW11/A (16 pages).
19. Sh. Virender Singh, Patwari, Land & Estate Town Hall, was examined as DW12. He produced the application under RTI Act as Ex. DW1/G2 and acknowledgment of the application as Ex. DW1/G4 and the report of the department as Ex. DW1/G5.
20. Sh. Kamleshwer Upadhyay from the Food and Supply Department, Circle 23 was examined as DW13. He produced the record of ration card issued to Sh. Sewa Singh for the year 1997 and for the year 2005. The photocopy of Ration card is Ex. DW13/A, copy of master register as DW13/B and photocopy of the register as Ex. DW13/C.
21. Sh. T.R. Sethi, Architect / Supervisor, was examined as DW14.
Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 13 of 45. He has proved his valuation report dated 16.3.1998 as Ex. DW14/A and site plan as Ex. DW14/B.
22. Sh. Dulare Singh, Assistant GradeI, BSES, Patel Nagar was examined as DW15. He produced the application form pertaining to electricity meter no. 114042611802.
23. The defence evidence was closed on 30.1.2010. Thereafter, the plaintiff has led evidence in rebuttal.
24. In rebuttal evidence, plaintiff again examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A1. PW1 relied upon the Survey report as Ex. PW1/19 and receipt of payment made to the MCD as Ex. PW1/20.
25. Sh. Sanjay Kumar, Assistant Zonal Inspector from House Tax Department, MCD, Karol Bagh Zone, Delhi was examined as PW2. In his examination in chief, PW2 produced the original of the certified copy of Ex. PW1/19. He stated that the assessment with respect to the property bearing No. H16/4, Bapa Nagar, Karol Bagh, New Delhi from 1987 till that day is in the name of Sh. Deepak Puri. He further stated that as per the assessment dated 1.4.2002, the property was assessed in the name of Sh. Deepak Puri as commercial. He had filed on record the photocopy of the said assessment as Ex. PW2/1.
26. Rebuttal evidence on behalf of the plaintiff was closed on 19.02.2011. All the witnesses were cross examined by the Ld. Counsels for the opponent. The parties were then called to address final arguments.
27. Written arguments were filed on behalf of both parties. I have Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 14 of 45. also heard the final arguments on behalf of the parties and have perused the case file. My issuewise findings are as follows :
28. Issue no.1 : Whether suit has been properly valued for the purpose of jurisdiction and court fees? OPP.
Issue no.2 : Whether this court has no pecuniary jurisdiction to entertain this suit? OPD.
29. Issue no.1 and 2 are taken together to avoid repetition as both issues require common discussion. The onus to prove issue no.1 was placed upon the plaintiff and the onus to prove issue no.2 was placed upon the defendant.
30. Issue no. 1 is taken first for discussion. The plaintiff has mentioned the valuation of the suit in para no. 24 of the plaint. The plaintiff has valued the suit for the purpose of Court fees and jurisdiction at Rs. 2 lacs for the relief of possession and declaration. For the purpose of injunction, the suit is valued at Rs. 130/ and the Court fees is paid accordingly.
31. The defendant has challenged this valuation. He has examined DW14, a valuer who has valued the property at Rs.23,11,204/.
32. Ld. Counsel for the plaintiff has argued that the suit has been properly valued. It has been argued that the suit property is a Gurudwara. Therefore it has no market value and its valuation cannot be ascertained. Hence, the valuation given by the plaintiff must be considered as correct. She has relied upon the Judgment of Hon'ble High Court of Punjab in the matter of Mandir Mausuma & Ors. Vs. Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 15 of 45. The Taxing Officer & Ors., (1971) 73 PCR 793. It is also argued that the valuer / DW14 Sh. T. R. Sethi did not visit the property before preparing the alleged report of valuation of property in question. Therefore, the valuation report filed by the valuer cannot be relied upon. The defendant has failed to prove that the valuation of the property was about 1 crore or 23 lacs on the date of institution of the suit. However, the plaintiff, on the other hand, has proved that the suit has been properly valued for the purpose of Court fee and jurisdiction.
33. On the other hand, Ld. counsel for the defendant has argued that the plaintiff has under valued the suit for the purposes of Court fee and jurisdiction. It is argued that as per Section 8 of the Suit Valuation Act read with Section 17 of the Court Fees Act, the plaintiff is required to pay the separate Court fees for the relief of declaration and possession on the basis of market rate. The plaintiff has valued the suit at Rs. 2 lacs for both the reliefs which is not correct as per law. Further, the plaintiff has not summoned any other witness or produced any document in order to assess the value of the suit property. The defendant has got the suit property valued through Valuer Sh. TR Sethi who has assessed the value of the suit property at Rs. 23,11,204/ according to the rates of land given by Ministry of Urban Development for the year 1996. The plaintiff has chosen not to cross examine the witness on crucial point of valuation and thus, the plaintiff has admitted the valuation stated by the defendant of the suit property.
34. I have considered the submissions of the parties and have perused the entire material on record. I have carefully gone through the Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 16 of 45. judgment relied upon by Ld. Counsel for the plaintiff.
35. It is settled position of law that generally the valuation of a suit given by the plaintiff is to be accepted unless it is shown that the plaintiff has substantially undervalued or overvalued the suit. It depends on the facts and circumstances of each case to decide whether the plaintiff has undervalued the suit or not.
36. In the present case, it has been argued on behalf of the plaintiff that the suit property is a Gurudwara and therefore its valuation can not be ascertained. Therefore, the argument of the Ld. Counsel appears to be that whatever valuation has been given by the plaintiff has to be accepted as correct even if there is material on record to show that value of suit property is more than the value mentioned by the plaintiff.
37. In the present case, it is an admitted fact that the suit property is a Gurudwara, i.e. a place of worship by the Sikh Community. The only difference in the case of parties is that the plaintiff has claimed the Gurudwara as his private property while the defendant has claimed it a public Gurudwara run by a Society.
38. Be that as it may, the fact remains that the suit property is a Gurudwara which falls within the category of 'extracommercium'. It is no more resintegra that a religious place of worship, be it Gurudwara, church, temple, mosque etc. has no market value and the property belongs to the God. I get strength from the judgment of Hon'ble Punjab and Haryana High Court in the matter of Mandir Mausma & ors. vs. Taxing Officer (1971) 73 PLR 793. The Hon'ble High Court has held that in case of a suit for possession of a temple or a mosque, fixed court Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 17 of 45. fees is to be paid and valuation of the suit made by the plaintiff is to be accepted. The Hon'ble Court has observed as under:
"There is another aspect of the matter, that is, the property has to be seen on the date of the suit for the purposes of Court fee because it is that property which becomes the subject matter of the suit. At the time the suit was filed, the property was a temple and a temple has also no market value. It was so held in Rajagopala Naidu v. Ramasubramania Aiyar and Anr. : A.I.R. 1924 Mad. 19 (F.B.). That judgment was followed by a Full Bench of the Rangoon High Court in U Pyinnya and Anr. v. U Dipa, A.I.R. 1929 Rangoon 134. A learned Single Judge of the Nagpur High Court in Motilal Shioji Ram v. Shambhoolal Ganpatlal, A.I.R. 1938 Nagpur 481, also held that the temple falls within the category of "res extra commercium," and after referring to the Madras and Rangoon cases (supra) and Parsottamanand Giri v. Mayanand Giri : A.I.R. 1932 All. 593, observed as under:
"It is further contended that the temple in dispute is not a public but a private temple. I do not see what difference it makes to the marketability of the temple whether it is private or public. The temple, so long as it stands as a temple dedicated to a deity installed in it, remains as a property of the deity and consequently where it is private in the sense that it is meant mainly or exclusively for the worship of the persons who founded it does not make it any more marketable than it is when the public at large are allowed to enter and worship there. In either case the property belongs primarily to the deity and, therefore, it must fall within the category of "res extra commercium".
"So that even if the property in suit is considered to be a temple, it has no market value and, therefore, Court fee has been correctly paid under Article 17 (vi) of Schedule II to the Act." (emphasis supplied).
Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 18 of 45.
39. Similarly, in the judgment of Ram Singh vs. Shri Rajiv Lochan Trust, 1991 MPLJ 863, the Hon'ble High Court of Madhya Pradesh has held that a temple which is devoted absolutely to religious purposes even if is regarded as house, has no market value within the terms of Section 7 (v) (e) of the Court Fees Act and the suit for recovery of possession of it for the purpose of managing it and conducting worship falls under Schedule 2 Article 17 (6) of the Court Fees Act.
40. DW14 Sh. T. R. Sethi has valued the suit property at Rs. 23,11,204/. That valuation might have been considered as true in case the suit property had been a private property used for personal purpose. However as discussed hereinabove, the suit property is a Gurudwara and its valuation can not be ascertained as per the rules and methods used for valuing personal properties in an area. Therefore, the valuation report submitted by DW14 can not be used in the present case to decide the valuation of the suit for the purpose of court fee and jurisdiction.
41. In view of the discussion hereinabove, this Court holds that the suit property being a Gurudwara has no market value and therefore the valuation given by the plaintiff is accepted to be correct. Hence, this Court holds that the suit is properly valued. On the basis of valuation mentioned in the plaint, this Court has jurisdiction to try the present suit. Accordingly, issue no. 1 and 2 are decided in favour of the plaintiff and against the defendant.
42. ISSUE NO. 5. Whether suit is barred by time? OPD.
43. The onus to prove this issue was placed upon the defendant. Ld. Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 19 of 45. Counsel for the defendant has argued that the land in question was acquired by the Government vide award and the plaintiff cannot claim himself to be the owner of the property. The award was passed in the year 1961 and the plaintiff claims to have perfected his right by adverse possession in the year 1970. It is submitted that the suit for declaration should have been filed within three years from the date when the right to sue first accrues and thus, the suit of the plaintiff is barred by time.
44. On the other hand, Ld. Counsel for the plaintiff has argued that the defendant has failed to show that the suit is barred by law of limitation. It is argued that the defendant has denied the title of the plaintiff in the year 1996 only and the suit has been filed when the right of the plaintiff was challenged by the defendant. Ld. Counsel for the plaintiff has also relied upon the judgment of Hon'ble Supreme Court of India in the matter of Khatri Hotels Pvt. Ltd. vs. UOI (2011) 9 SCC 126 wherein the Hon'ble Court has held that a right to sue for declaration arises when the right is challenged.
45. I have considered the submissions of the parties and have perused the material on record.
46. The plaintiff has contended in the plaint that he had inducted defendant as a Sewadar /Granthi in the suit property and one room was given to him in the suit property for his use. It is alleged that in January, 1996, the defendant started claiming right in the whole of the suit property derogatory to the right of the plaintiff and therefore, the plaintiff terminated rights of the defendant and instituted the present suit for relief of declaration, possession and permanent injunction.
Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 20 of 45.
47. The argument of Ld. Counsel for the defendant does not have any legal substance. The plaintiff has filed the present suit for possession and injunction against the defendant. He has also sought a declaration thereby declaring him as a owner of the suit property on the basis of his adverse possession. The rule of limitation relating to relief of possession is not applicable in such cases. A person who has remained in continuous uninterrupted possession of immovable property adverse to its owner (12 years in case of property of a person and 30 years in case of property of Government), he acquires a right to protect his possession in case the true owner tries to regain the possession. Thus, the limitation period runs against the true owner and not against the trespasser who is in possession.
48. Further, the plaintiff has contended that the defendant is trying to grab the suit property since 1996. The defendant has denied the rights of the plaintiff in the suit property in the written statement. There is nothing on record to show that the defendant at any other earlier occasion had disputed the claim of the plaintiff. Whether the claim of the plaintiff is valid or not is a matter of trial. However, the fact remains that the dispute as stated in the plaint had arisen in the year 1996 only. The suit was also filed in the year 1996. The suit is therefore not barred by limitation. This issue is accordingly decided in favour of the plaintiff and against the defendant.
49. ISSUE NO. 6. Whether suit property bears property No. H 16/4 ? OPD.
50. The onus to prove this issue was placed upon the defendant. The Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 21 of 45. plaintiff has contended that the suit property is bearing no. H17/5, Gali no.4, Block no. 16, Govind Garh, Bapa Nagar, Karol Bagh. The defendant, on the other hand, has claimed that the suit property is bearing property No. H16/4 .
51. Ld. Counsel for the plaintiff has argued that the plaintiff has filed various House tax receipts, inspection book, and survey report of MCD wherein the suit property is mentioned as bearing no.17/5, Govind garh, Gali no.4, Bapa Nagar, New Delhi. It has also been argued that PW2 Sh. Sanjay Kumar has produced the record of H16/4, Bapa Nagar, Karol Bagh which is sufficient to prove that the assessment of property no. H16/4 is in the name of one Deepak Puri since 1987 till Date. Further, in all the salary receipts, duly signed by the defendant the Gurudwara is mentioned as Gurudwara Gobindgarh, H17/5. It is also argued that in the writ petition filed before the Hon'ble High Court of Delhi, Ex.DW1/P3, the Gurudwara is mentioned as adjoining to property bearing no. 17/3, 17/3A, 17/3B, and 17/4 and the petition also shows that the Gurudwara in question is bearing property no.17/5. Ld. Counsel for the plaintiff has also argued that the plaintiff was shown the electoral roll of Deepak Puri which showed his address as E 16/22 but the plaintiff has stated that he is not sure whether the picture is that of Deepak Puri.
52. Ld. Counsel for the defendant, on the other hand, has argued that the land in dispute does not belong to MCD. A house tax receipt can not be a proof of ownership and identification of any property. Anybody can deposit house tax by mentioning any municipal number Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 22 of 45. (fictitious or real) in the form to be filled at the time of depositing the tax. The MCD officials do not verify about the property number, the owner of the property etc., before accepting the amount and issuing receipts. Similarly, other documents produced by the plaintiff are also not able to prove the contention raised by the plaintiff. However, Ld. Counsel has argued, the plaintiff himself has admitted that the property in question is bearing no.16/4. It is argued that in the letter Ex.PW1/A1X, which is written by the plaintiff to the BSES, the plaintiff has categorically admitted that the property is bearing no. H 16/4 and therefore, it is proved from the documents of the plaintiff itself that the property is bearing no. H16/4.
53. I have considered the submissions of the parties and perused the record.
54. The plaintiff has stated that the Gurudwara is bearing property No. H17/5. The defendant claims that the suit property is bearing no. H16/4.
55. I shall discuss the documents filed by the plaintiff first. Ex.PW1/1 is stated to be an allotment letter for dairy farm issued by the Govt. in favour of the plaintiff. However, this document in no way is able to prove that the suit property is bearing no. H17/5 as contended by the plaintiff. Then plaintiff has relied upon the alleged water bill and House tax receipts which are Ex.PW1/2 to Ex. PW1/12. The plaintiff has also relied upon the certified copy of survey report and inspection book, Ex. PW1/13 to Ex. PW1/16. Suggestion has been given to PW1 during his cross examination that Ex.PW1/2 to Ex.PW1/16 are forged Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 23 of 45. and fabricated documents. However, the plaintiff has not got these document .i.e. receipts, water bill, survey report and inspection book proved as per law. Since these documents have not been proved as per law and therefore, they can not be used as evidence in the present case.
56. However, even if it is presumed, for the sake of arguments, that the original house tax receipts Ex. PW1/3 to Ex. PW1/12 are issued by the MCD, it can not be said that these are evidence sufficient to prove that the suit property is bearing no. H17/5 as contended by the plaintiff. I find merits in the arguments of Ld. Counsel for the defendant that MCD does not verify the ownership, possession or the property number before accepting payment of house tax from any person. Any one can fill the form and deposit the amount of House Tax with MCD. There is nothing on record to show that MCD had verified the property number before accepting the amount of House Tax as mentioned in receipts EX.PW1/2 to EX.PW1/12. Therefore, these documents are not able to prove as to what number the suit property is bearing.
57. There are various house tax receipts in the name of plaintiff on record. PW2 Sh. Sanjay Kumar was summoned by the plaintiff to prove the record of the MCD. PW2 has stated that the property bearing no. H16/4, Bapa Nagar, Karol Bagh is assessed in the name of Sh. Deepak Puri since 1987 till Date. In his crossexamination, PW2 Sh. Sanjay Kumar had been shown by the defendant a document which is a receipt issued by the MCD. The receipt is Ex. PW2/DD1.
58. The witness has stated that it is a receipt issued by his Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 24 of 45. department MCD. He has stated that this is Self Assessment Return in which no clarification is done by MCD at the time of deposit of tax. Evidence of PW2 is sufficient to prove that the House tax receipts can not be considered as an evidence of ownership of any property. Nor they can be considered as proof of identification of a property. Therefore, the receipts Ex.PW1/3 to Ex.PW1/12 also can not be considered as proof of either ownership of property or for identification of the suit property.
59. In the document Ex.PW2/1, the address is mentioned as H16/4, Bapa Nagar, whereas in the document Ex.PW2/DD1, the address is mentioned as 16/4 H, Gali no. 4, Tank Road, Bapa Nagar. The document Ex.PW2/1 is only assessment of property no. H16/4, Bapa Nagar, Karol Bagh in the name of Deepak Puri. However, there is nothing on record to show that no separate numbers are allotted to Gobind Garh, area of Bapa Nagar. The suit property is admittedly in Govind Garh, area of Bapa Nagar.
60. Further, there is sufficient material on record to show that MCD does not have any authority to decide the number which the suit property is bearing. In the crossexamination, the plaintiff has admitted the MCD had filed a report in the suit titled as "Tarsem Singh vs. Mangal Singh & Ors." CS no. 423/97 in respect of property adjoining to the Gurudwara. The report of MCD is Ex. DW1/G. The report reads:
"In this regard, it is submitted that the above mentioned case does not relate to 'Land & Estate Deptt." as the site in question in not Mpl. land. As per report of Patwari of Land & Estate Deptt, the award has been made in respect of Kh. No. 1422/662 Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 25 of 45.
364/2 vide Award no. 1235 dated 30/10/61 as per D.D.A. land register."
61. MCD has categorically stated in the report that award has been passed in respect of land in Khasra no. 1422/662/364/2. The plaintiff has admitted in the crossexamination that the suit property is situated in Khasra no. 1422/662/364/2, Sadora Khurd.
62. In the order dated 22.08.2007 of Hon'ble High Court of Delhi, Ex.DW1/P4, it has been observed:
"Respondent No.1 DDA has filed their counter affidavit stating inter alia that the aforesaid land forms part of Khasra No. 1422/662/634 Pt. of Village Sandhora Khurd and DDA has no jurisdiction and right over the said land. It is also stated in the affidavit that as per offer No. 1235, this land was acquired for Wireless Experiment Centre at Anand Parbhat, Delhi. Wireless Experiment Centre comes under Military Estate Office, Delhi Cantonment."
63. It is clear from the report of MCD and affidavit filed by DDA before Hon'ble High Court of Delhi that the land in Khasra no. 1422/662/364/2 Sadhora Khurd has been acquired by Government for defence purpose. The plaintiff has also placed on record Ex.PW1/13 to Ex.PW1/16 to show that the property is bearing no. H17/5, Tank Road, Bapa Nagar, Karol Bagh. the document Ex.PW1/13 and Ex.PW 1/15 is same document with same date. However, the MCD has categorically stated that the land of Khasra no. 1422/662/364/2 is not municipal land. The report of MCD and affidavit of DDA create doubts over the documents Ex. PW1/13 (also Ex. PW1/15), Ex. PW 1/14 and Ex. PW1/16 .i.e the documents relied upon by the plaintiff.
Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 26 of 45.
64. Ld. Counsel for the plaintiff has also contended that summons issued to the defendant has been served at the address of H17/5 and therefore, the defendant cannot take the objection about the property number.
65. I have considered the contention of the Ld. Counsel for the plaintiff. Perusal of the report of process issued to the defendant would show that the process server has not gone alone to serve the process. It is stated in the report that the plaintiff had accompanied the process server for service of summons. The process was not received by the defendant. There is no substance in the contention of the plaintiff that the defendant has conceded about the property number and has received the process at the said property number.
66. Ld. Counsel for the plaintiff has relied upon the petition filed before Hon'ble High Court of Delhi which is Ex. DW1/P3. This Court has gone through the certified copy of petition. In the petition titled as "Gurudwara Shree Guru Singh Sabha vs. DDA & Ors.", Ex.DW1/P3, the petitioner has nowhere stated that the adjoining properties are bearing no. 17/3, 17/3A, 17/3B and 17/4. It is stated in the petition, "That the respondents No. 4 and 5, though having no records of ownership of the land in dispute, managed fictitious Municipal Numbers bearing Nos. 17/3, 17/4 and 17/6, BlockH, Govind Garh, Tank Road, Karol Bagh, New Delhi in collusion with respondents No. 2 and 3, though no such Municipal Numbers are shown in the Electoral Roll of the Area."
67. There is no admission in the petition that the adjoining properties Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 27 of 45. are bearing no. 17/3, 17/4 or 17/6 and the contention raised by Ld. Counsel for the plaintiff is without any substance. Rather, the validity of these numbers have been challenged in the said petition.
68. The defendant, on the other hand, has filed various documents on record to show that the property is bearing no. H16/4 and not H17/5. The defendant has also examined official witnesses to prove the documents.
69. DW3 Sh. Goverdhan Prasad, clerk of MTNL, has stated that telephone no. 25854385 was installed in the name of Sewa Singh at H 16/4, Ground Floor, Gurudwara Govind Garh, gali no. 4, Tank Road, Karol Bagh and before installing the connection, MTNL had verified the place where the connection was to be installed. Perusal of the record shows that the said connection has been installed after filing of the present suit. Therefore, it can not be of much help to decide the issue.
70. DW11 Sh. Ashok Kumar, UDC from the office of Election Commission has produced the record of electoral roll of the year 2009 where the name of Sewa Singh is appearing. The record is Ex. DW 11/A. Perusal of the record shows that as per electoral roll at Sr. no.757, the address of Sewa Singh is mentioned as H16/4, Block H 16, Bapa Nagar, Tank Road, Karol Bagh. However, as stated earlier, the said document has been prepared after filing of the present suit. Therefore, they can not be of much help to decide the issue.
71. Similarly, there are documents like Ex. DW1/C to Ex. DW1/C5, ration card Ex. DW1/E, Election ID card as Ex. DW1/E1 and Ex.
Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 28 of 45. DW1/E2, passport Ex. DW1/E5 and nine letters / envelopes Ex. DW1/F to Ex. DW1/F8 which have been prepared after filing of the suit.
72. There are five MTNL bills on record which are dated 08.02.2005, 16.03.2001, 16.05.2000, 16.11.2000 and 08.04.2002. The ration card has been issued on 31.01.1997. Election ID of Sewa Singh was issued on 28.05.1997. The passport of Sewa Singh was issued on 05.06.1998. The letters and the envelopes are bearing postal stamp of the year 2001, 2002, 2004 and 2000. Therefore, these documents also can not be considered as evidence sufficient to prove that the suit property is bearing no. H16/4 as contended by the defendant.
73. The Pass book of Punjab & Sind Bank of the year 1987 to 1989 is Ex. DW1/A. The defendant has placed on record the original pass book issued by the Punjab & Sind Bank in the name of S. Surat Singh which is Ex. DW1/A. Perusal of the pass book shows that in the said pass book, the address is mentioned as Gurudwara Singh Sabha, Tank Road, Karol Bagh. This passbook is also not of much help to decide the present issue as the property number is not mentioned therein.
74. The defendant has also relied upon birth certificates of his children which are Ex.DW7/A and EX.DW7/B. Birth certificate dated 23.07.1990 has been proved by DW7 as Ex. DW7/A. In the birth certificate, the address is mentioned 16/4 H, Tank Road, Gobindgarh. Birth certificate of Gurbir Singh issued on 05.12.1992 has also been proved by DW7 as Ex. DW7/B. The address in Ex. DW7/B is also mentioned as H16/4, Tank Road, Gobindgarh. These documents have Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 29 of 45. been proved as per law by the witness DW7. Now, these documents have been prepared in the year 1990 and 1992 respectively. As per the plaintiff himself the defendant has been residing in the suit property since 1988. Therefore, it stands proved that documents Ex.DW7/A and EX.DW7/B had been obtained by the defendant at the time of birth of his children at the suit property. These documents bear the residential address of the defendant as H 16/4, Tank Road, Gobindgarh. Admittedly, the defendant had been residing in the suit property at the relevant period. Therefore, it must be the address of the suit property only. Nothing contradictory has come on record to negate this evidence.
75. The defendant has also relied upon the documents of the plaintiff to prove that the property is bearing no. H16/4. In the cross examination, the plaintiff has admitted writing of application Ex.PW1/A1X, dated 29.12.2009 to BSES to provide documents in respect of connection. The contents of the said letter are as under:
"Mere dusre makaan jiska no. 16/4H, Govind Garh, Tank Road, Karol Bagh, New Delhi 5 hai, usme uprokt number ka meter laga hua hai, mujhe iss meter ka record chahiye ki yah meter kis kagzon ke hisab se laga hua hai".
76. The plaintiff has admitted during his cross examination that the meter number mentioned in the letter Ex. PW1/A1X is with respect to the meter in Gurudwara, i.e. the suit property. In the said letter, the plaintiff has categorically stated that the property number of Gurudwara is H16/4.
77. In view of discussion hereinabove, this Court holds that the Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 30 of 45. defendant has proved, on the balance of probability, that the suit property is bearing property No. H16/4, Tank Road, Karol Bagh and the property is not bearing No. 17/5, Gobind Garh, Gali No. 4, Bapa Nagar, New Delhi. Accordingly, this issue is decided in favour of the defendant and against the plaintiff.
78. ISSUE NO. 3. Whether plaintiff has acquired ownership over the suit property i.e. property bearing No. 17/5, Govind Garh, Gali No. 4, Bapa Nagar, New Delhi by way of adverse possession or restriction of time? OPP.
ISSUE NO. 7. Whether plaintiff is entitled for decree of declaration as prayed for? OPP.
79. Issue no.3 and 7 are taken together as both issues require common discussion of facts and law. The onus to prove both the issues was placed upon the plaintiff. The burden lies upon the plaintiff to prove that the plaintiff has acquired ownership right over the suit property by way of adverse possession and efflux of time.
80. Ld. Counsel for the plaintiff has relied upon the documents Ex. PW1/1 to Ex. PW1/16 to prove that the plaintiff is in adverse possession of the suit property for last several years. She has relied upon the Judgment of Hon'ble High Court of Delhi in the matter of Manmohan Service Station Vs. Md. Haroon Japanwala & Ors., AIR 1994 Delhi 337. It has been specifically emphasized by the Ld. Counsel that where there is some right conferred by law, there must be some machinery for the enforcement of the said right. Ld. Counsel has Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 31 of 45. also relied upon the Judgment of Hon'ble Supreme Court of India in the matter of Desh Raj & Ors. Vs. Bhagat Ram (Dead) by LRs & Ors., (2007) 9 SCC 641 and has contended that the plaintiff can file a suit for possession based on the ground of adverse possession. Ld. Counsel has also relied upon Section 27 of the Limitation Act and the judgment of the Hon'ble Supreme Court of India in the matter of "Bal Krishan Vs. Satya Prakash & Anr.", AIR 2001 SC 700 in support of the plea that the plaintiff has become owner by virtue of adverse possession.
81. Per Contra, Ld. Counsel for the defendant has argued that the plaintiff can not be declared owner of the property as per law. As per the Khasra Girdawri, one person named Santosh Kumar was the owner of the suit property and the plaintiff has admitted that he had never filed any suit for declaration against Santosh Kumar or DDA. Ld. Counsel has also argued that the suit property was occupied by DDA and the occupants of the said land were given compensation in lieu of the same. The plaintiff was not the recorded owner of the property and therefore, there was no question of grant of any compensation to the plaintiff by the Government.
82. Ld. Counsel for the defendant has also argued that there is nothing on record to prove that the plaintiff was ever in possession of the suit property. House tax receipts etc. do not prove that the plaintiff is the owner of the suit property. Ld. Counsel has relied upon the proceedings of suit bearing no. 423/97 titled as "Sh. Tarsem Singh Vs. Mangal Singh", Ex. DW1/G and the suit titled as "Mangal Singh Vs. Satender Pal Singh", Ex. DW1/G1 and Ex. DW6/A. It is argued that in Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 32 of 45. the suit titled as "Tarsem Singh Vs. Mangal Singh", MCD has filed the status report wherein MCD has admitted that the case does not relate to the MCD land and State Department of MCD as the site in question is not municipal land. Therefore, the plaintiff can not be declared as owner of the property.
83. I have considered the submissions of the Ld. Counsels for the parties and perused the material on record.
84. The plaintiff has claimed that he has become owner of the suit property by adverse possession. However, I am of the considered opinion that the plaintiff can not be declared owner as contended by him. Hon'ble Supreme Court in the matter of S.M. Karim v. Mst. Bibi Sakina AIR 1964 SC 1254 has observed as under:
"Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for "several 12 years" or that the plaintiff had acquired "an absolute title" was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea."
85. It is settled position of law that a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 33 of 45. has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
86. The plaintiff has relied upon the judgment of Manmohan Service Station Vs. Md. Haroon Japanwala & Ors., AIR 1994 Delhi 337 to support his argument that such a declaration can be made by the Court. However, as held by the Hon'ble High Court of Delhi in Sh. Ashok Kumar vs Smt. Surjit Kaur & Ors in RFA no.540/2013, decided on 2 December, 2013, the said position has already been changed after judgment of the Hon'ble Supreme Court of India in the matter of "Gurdwara Sahib Vs. Gram Panchayat Village Sirthala & Anr.", Civil appeal no. 8244/2013, decided on 16.09.2013. The Hon'ble Supreme Court has held that suit for declaration of title on the basis of adverse possession is not maintainable. Hon'ble Apex Court has observed as under:
"3. The Appellant claims ownership by adverse possession on the ground that it is in possession of the land in dispute for sufficiently long period which fact has been established and, therefore, his suit could not be dismissed. We, however, find that this relief of declaration has been denied on the ground that suit for such a prayer was not maintainable inasmuch as declaration to this effect on the basis of adverse possession cannot be sought and the plea of adverse possession is available only as a defence to the Defendant."
"7. In the Second Appeal, the relief of ownership by adverse possession is again denied holding that such a suit is not Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 34 of 45.
maintainable. There cannot be any quarrel to this extent the judgments of the courts below are correct and without any blemish. Even if the plaintiff is found to be in adverse possession, it cannot seek a declaration to the effect that such adverse possession has matured into ownership. Only if proceedings filed against the Appellant and Appellant is arrayed as Defendant that it can use this adverse possession as a shield / defence."
87. There is no dispute about the proposition of law that a person in settled possession by way of adverse possession has right to file a suit for possession against any illegal occupant. In the case, the plaintiff is not only seeking relief of possession against Sewa Singh but is also seeking relief of declaration that he had become owner of the suit property by virtue of adverse possession. No such declaration can be made in favour of the plaintiff. However, a decree of possession can be passed in favour of the plaintiff and against the defendant if the plaintiff is able to show that he has prior possessery rights over the suit property.
88. The plaintiff has relied upon water bills, house tax receipts and survey reports in support of the claim that the plaintiff is in adverse possession of the suit property. In the cross examination, PW1 Mangal Singh has stated that he does not know whether Santosh Kumar is the owner of the land as per the Khasra Girdawri. He has also stated that he has not filed any suit for declaration in respect of his ownership rights against the DDA or Santosh Kumar. As discussed herein above, the property tax receipts and self assessment forms are not even prima facie sufficient to show ownership of any immovable property. Hon'ble Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 35 of 45. High Court of Punjab and Haryana in the matter of "Bharat Bhushan & Ors. Vs. Anand Kumar & Ors., RSA Nos. 2722 and 1263 of 2015 (O & M), decided on 17.06.2016 has observed that such type of documents can not be considered as evidence in support of ownership. The High Court has held as under : "The respondents have failed to prove the exclusive possession except producing on record the house tax receipts and assessment register which did not prove the ownership, much less, exclusive possession. It is only payment of tax to the Department and such an act can be done by any of co sharers would not clothe exclusive possession and ownership".
89. In the present case, the plaintiff has failed to bring any document to prove that he has been in possession of the suit property for last several years. Thus he has failed to prove that he has prior possessory right on the suit property. He has also failed to prove that the defendant has been residing in the suit property with his permission. He has failed to bring any material on record to prove that the Gurudwara on the suit property had been built by him from his own funds.
90. It is worth mentioning here that both the parties have submitted lengthy arguments on the point of award. While the Ld. Counsel for the defendant has argued that the suit property is a part of land which has been acquired by Govt. of India and award was passed. Therefore, the plaintiff is not the owner of the suit property. Ld. Counsel has relied upon the following judgments :
(a) Aflatoon & Ors. Vs. Lt. Governor of Delhi & Ors., Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 36 of 45.
(1975) 1 SCR 802.
(b) Ramjas Foundation Vs. Union of India, 174 (2010) DLT 100 (SC).
(c) Meera Sahni Vs. UOI, (2001) DLT 484 (FB).
(d) OPC Jain Vs. ADM (LA) & Ors., 42 (1990) DLT 478.
91. Ld. Counsel for the plaintiff, on the other hand, has argued that the Govt. of India never took possession of the land and therefore, the said award does not have any effect on the ownership and possession of the plaintiff. Ld. Counsel has also relied upon the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 and has argued that since no compensation was paid to the plaintiff, it cannot be said that the Govt. had acquired the land and therefore, the plaintiff can be declared as a owner of the suit property.
92. Be that as it may, the plaintiff has not filed the present suit against the Govt. of India or MCD or any authority seeking any declaration against them. The relief of plaintiff is claimed against the defendant on the basis of his claim of previous possessory rights. Therefore, this Court is not required to decide as to who was the owner of the property in question. As discussed hereinabove, the declaration as sought by the plaintiff cannot be made even if the entire case of the plaintiff is presumed to be true. However, the relief of possession and Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 37 of 45. injunction can be granted if the plaintiff proves his case against the defendant as per law.
93. It is now settled that the plaintiff cannot claim that his adverse possession has matured into ownership. In view of discussion herein above, this Court holds that the plaintiff cannot be said to have acquired ownership over the suit property by adverse possession and therefore, the plaintiff is not entitled to decree of declaration as prayed for. Accordingly, both issues are decided in favour of the defendant and against the plaintiff.
94. ISSUE NO. 4. Whether defendant was inducted as licensee in this property? OPP.
95. The onus to prove this issue was placed upon the plaintiff. Ld. Counsel for the plaintiff has argued that the defendant had taken contradictory stand in his defence as on the one hand, it is stated that the receipts were signed by the defendant for some private Gurudwara of the plaintiff and on the other hand, it is stated that the receipts were stolen from Gurudwara. Therefore the defence put forth by the defendant is not reliable.
96. Ld. Counsel for the plaintiff has further argued that the defendant has admitted his signatures on the receipts Ex. PW1/17 which proves that the defendant was inducted as licensee by the plaintiff in the Gurudwara. It is also argued that Section 116 of the Indian Evidence Act provides for estoppel of tenant and that of licensee and the defendant being licensee of the plaintiff can not deny the title of the plaintiff in the suit property.
Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 38 of 45.
97. On the other hand, Ld. Counsel for the defendant has argued that the receipts were in Urdu and the defendant does not know Urdu language. Even otherwise, the receipts pertain to the services given by the defendant at the private Gurudwara in the house of the plaintiff and not at the suit property. Further, the plaintiff was not the owner of the suit property and therefore he is not competent to create or terminate any license.
98. I have considered the submissions of Ld. Counsels and perused the material on record.
99. It is contended in the plaint that the defendant was appointed as a Granthi by the plaintiff to perform religious ceremonies at a monthly salary of Rs. 400/. The record of the money paid to the defendant was maintained in the note book and the note book / receipt book is Ex. PW1/17A. The plaintiff has also contended that the defendant has been allegedly given possession of one room of the Gurudwara as Sewadar / Granthi.
100. The defendant has not denied the signatures on the note book, Ex. PW1/17 A. The defendant has contended that his signatures were taken on the notebook as he used to perform Puja at private Gurudwara of the plaintiff. Suggestion has been given to the plaintiff that the receipt book Ex. PW1/17A pertain to private Gurudwara at H16/99, Tank Road.
101. The plaintiff has also filed some loose receipts Ex. PW1/17 (colly). Suggestion has been given to the plaintiff that receipts Ex. PW 1/17 (colly) was stolen from the Gurudwara. This Court does not find Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 39 of 45. any contradiction in the stand of the defendant in respect of the receipts Ex. PW1/17 A and Ex. PW1/17 (colly).
102. Admittedly, the plaintiff has not placed on record any receipt in respect of payment made to the defendant prior to the 198890. He has placed on record the receipts for the subsequent period. The plaintiff has stated that the defendant was not giving any receipt prior to 1990. He used to write a receipt in respect of the payments made and the defendant used to sign them after reading the contents thereof. He has further stated that all the receipts are in Urdu. Suggestion has been given to the plaintiff that the defendant cannot read Urdu.
103. The receipt book / notebook is Ex.PW1/17A. Their true translation has not been filed by the plaintiff. However, alleged translation of some of these receipts is Mark A (colly.) The name and address of the translator is not mentioned. There is no certificate that this is true translation of the document.
104. In the affidavit of evidence, the defendant has deposed that he can not read and write Urdu. There is nothing on record to rebut this statement. The receipts are not written in the handwriting of the defendant. The plaintiff has contended that the defendant had signed those receipts after understanding the contents. Be that as it may, the alleged translation of the receipts also does not prove that the plaintiff has any rights in the Gurudwara or that the defendant was his licensee in the suit property. The alleged translation of one of those receipts reads as under : "Bayees Tehrir Ok .... Jo ke man ke Sewa Singh wald Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 40 of 45.
Bishan Singh Sewadar Gurudwara Govind Garh, Gali no.4, Makaan no. H 17/5 mein rahta hun. Apni tankhawah mublig Rs. 400/ , chaar sau rupye nisf jinke mublig Rs. 200/ do sau rupey hote hain, 31/1/92 mah janwari ki tankhwah nakad wasool pakar rashid likh di hai taki waqt jarurat kam aawe aur mera gurudware ki taraf se koi kisi kisam ka hisab bakaya nahin hai tehrir karta Sewa Singh wald Bishan Singh Sewadar Gurudwara Govind Garh gali no. 4, makan no. H17/5, dastkhat Sewa Singh Katib Mangal Singh baklam khud 31/1/92 ticket rashidi 31/1/92."
105. The other alleged translations of other receipts are also in the similar language. These receipts however do not show that the plaintiff is the owner of the suit property and that he had inducted the defendant as a licensee. These receipts may show that the plaintiff had paid some amount to the defendant as his salary. However, the defendant has specifically stated that the plaintiff had paid him the said amount for his services rendered by him at the personal Gurudwara of the plaintiff at his home. The contents of the receipts as mentioned in the alleged translations are not able to prove, on the balance of probability, that said amount was paid by the plaintiff to the defendant because plaintiff was the owner of the Gurudwara situated on the suit property. These receipts can not be considered as sufficient evidence to prove that the plaintiff is the owner of the suit property and that he had inducted the defendant as a licensee in the suit property.
106. The defendant, on the other hand, has filed various documents on record to show his possession. The defendant is not claiming his personal rights in the suit property. His contention is that the suit Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 41 of 45. property belongs to the Society Gurudwara Shree Guru Singh Sabha. It has already been proved on record that the Gurudwara is used by public at large in the area to offer prayers as per Sikh religion. It has also been brought on record that already a Nishan Saheb has been installed in the premises of the Gurudwara.
107. Admittedly, the plaintiff is not the registered owner of the suit property. The plaintiff does not have any document of ownership in respect of the suit property. The plaintiff has filed the present suit only on the basis of his continuous possession. However, the plaintiff has failed to prove his continuous possession over the suit property. There is no evidence on record to show that the plaintiff had got the Gurudwara constructed in the year 1976 or 1983. The plaintiff had not placed on record any expenditure record nor any other documentary evidence to prove the contention that the Gurudwara was got constructed by him. The plaintiff has also not examined any public witness to prove the contention that the Gurudwara was got constructed by him in the year 1983. It is settled position of law that it is for the plaintiff to first establish his right and then, seek remedy. The plaintiff has to prove his case and stand on his own legs and the plaintiff cannot take advantage of the weakness of the defendant's case.
108. A Full Bench of PunjabHaryana High Court in the matter of Santa Singh Gopal Singh And Ors. vs Rajinder Singh Bur Singh And Ors. AIR 1965 P H 415 has observed as under:
"xxx In Official Receiver of East Godavari V. Chava Govindaraju, AIR 1940 Mad 798, a Full Bench speaking Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 42 of 45.
through Leach C. J. expressed the view, after a consideration of the Privy Council cases (Mohima Chunder V. Mohesh Chunder, ILR 16 Cal 473 (PC), Mahammad Amanulla Khan v. Badan Singh, ILR 17 Cal 137(P C), and Dharani Kanta V. Gabar Ali, 25 Mad L J 95(P C), that it cannot be maintained that a person who proves title in a suit for ejectment has the right to the decree sought unless the defendant proves adverse possession for 12 years. The plaintiff is not entitled to succeed unless he show, in addition to title, that he has been in possession of the property within 12 years of the suit. In Jaldhari Mahto V. Rajendra Singh, ILR (1958) 37 Pat 373: (AIR 1958 Pat 386), a Full Bench of the Patna Court, after an exhaustive review of the case law including the Lahore and Madras Full bench decisions, summarised the true position in this way. In a suit for ejectment the initial burden lies on the plaintiff to prove that he has the title to immediate possession by ejectment of the defendant. If the suit is based on the ground of dispossession or discontinuance of possession and the defendant is in possession and asserts title independent of the title alleged by the plaintiff, then barring the case, where on proof of plaintiff's title possession is presumed with him on the principle that possession follows title, the plaintiff must principle that possession follows title, the plaintiff must prove in addition that he was in possession within twelve years of the suit. xxx".(emphasis supplied).
109. In the present case even if there are some admissions of the defendant, it does not strength the case of the plaintiff. The plaintiff does not have any document to show either ownership right over the suit property or possessory right over the suit property.
110. In the absence of any documentary evidence to prove that the plaintiff is the owner of the suit property, this Court is of the opinion Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 43 of 45. that the plaintiff can not be considered as licensor of the suit property. In view of discussion hereinabove, this Court holds that the plaintiff has failed to prove, on the balance of probability, that the defendant was licensee of the plaintiff in the suit property. Accordingly, this issue is decided in favour of the defendant and against the plaintiff.
111. ISSUE NO. 8. Whether plaintiff is entitled for decree of possession as prayed for? OPP.
112. The onus to prove this issue was placed upon the plaintiff. The plaintiff is seeking relief of possession in respect of the property No. 17/5, Gobind Garh, Gali No. 4, Bapa Nagar, New Delhi. The property number mentioned by the plaintiff is not correct. This Court has also held that the plaintiff is not the owner of suit property. There is nothing on record to prove that the plaintiff has any prior possessory rights on the suit property. He has also failed to prove that the defendant is a licensee of the plaintiff in the suit property. Therefore, this Court holds that the plaintiff is not entitled to relief of possession as prayed. Accordingly, this issue is decided against the plaintiff and in favour of the defendant.
113. Issue no. 9 : Whether the plaintiff is entitled for decree of permanent injunction as prayed ? OPP.
114. The onus to prove this issue was placed upon the plaintiff. In view of findings of this Court that the plaintiff has failed to show any ownership right or possessory rights over the suit property, this Court holds that the plaintiff is not entitled to the relief of permanent injunction as prayed. Accordingly, this issue is decided in favour of the Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 44 of 45. defendant and against the plaintiff.
115. Relief.
116. In view of findings of this Court on aforesaid issues, this Court holds that the plaintiff is not entitled to any relief. Therefore, the suit of the plaintiff is dismissed. Parties to bear their own costs, Nothing discussed in the judgment shall amount to giving any right to the defendant in the suit property. Decree sheet be prepared accordingly.
Pronounced in the open court (NEHA)
on 17th December, 2016 Civil Judge09, Central
Tis Hazari Courts, Delhi
Suit No. 331/16 Mangal Singh Vs. Sewa Singh Page No. 45 of 45.