Delhi District Court
Sh. Kulbhushan Singh Rathore vs Sh. Raghvinder Singh Rathore on 1 June, 2016
IN THE COURT OF SH. HARISH KUMAR : ADDL. DISTRICT
JUDGE -13 : CENTRAL DISTRICT ; TIS HAZARI COURTS : DELHI
SUIT NO. 44/16
Unique ID No.02401C0146442000
In re :
Smt. Saraswati Rathore (since deceased)
Through her legal heirs
1. Sh. Kulbhushan Singh Rathore
2. Sh. Pushpender Singh Rathore
Both S/o Late Sh. R.P.S. Rathore,
Both R/o RC-479, Adarsh Nagar,
Khora Colony, District Ghaziabad, UP.
3. Ms. Meenakshi Rathore
W/o Sh. Bijender Chauhan
R/o Late Sh. R.P.S. Rathore,
R/o Shakti Khand-II, Indrapuram,
Ghaziabad, UP.
................. Plaintiff
VERSUS
1. Sh. Raghvinder Singh Rathore
C/o Sh. Jagdish
R/o Village Khichripur, Delhi.
2. Sh. Harish Chand Sharma
S/o Sh. Lajja Ram
R/o F-235, Village Tekhand,
New Delhi-110020.
............. Defendants
Date of institution of present suit : 18.12.2000
Date of receiving in this court : 02.02.2016
Date of hearing arguments : 05.05.2016
Date of Judgment : 01.06.2016
Suit for recovery of Possession under Section 6 of Specific Relief Act,
Declaration and Permanent Injunction
Suit No. 44/16 Saraswati Rathore vs. Raghvinder Singh Page No. 1 of 13
JUDGMENT
1. Plaintiff has filed the suit for possession u/s 6 of the Specific Relief Act and Declaration and Permanent Injunction submitting that she is the owner of the property bearing no-B-1352, Govind Puri, Transit Camp, Kalkaji, New Delhi which was purchased by her from its previous owner Smt Sheela Devi W/o Raj Kumar vide general power of attorney, agreement to sell, special power of attorney and Will dt 07.06.1988 and possession of the same was handed over by the seller to the plaintiff. Suit property has been shown in the red colour in the site plan.
2. Defendant No-1 is the son of the plaintiff who had been debarred from inheriting her movable and immovable property and publication to this effect was carried out.
3. Defendant no-1 was threatening her of forcibly dispossessing the plaintiff from the suit property and consequently suit for permanent injunction was filed bearing No.- 360/99 which was not prosecuted on account of compromise between the parties. But despite that defendant no-1 has been threatening her of forcibly dispossessing and consequently another suit was filed which was assigned to the court of Sh G.P. Singh, Civil Judge,THC, Delhi and notice of the suit was issued for 16.11.2000 and 24.11.2000. On 24.11.2000 defendant appeared before the Hon'ble Court and sought time to file written statement and matter was adjourned for 07.12.2000 and again on 07.12.2000 adjournment sought time for filing of written statement and matter was adjourned for 11.01.2001. On 07.12.2000 plaintiff moved an application for appointment of Local Commissioner as well as for early hearing and the application was fixed for consideration on 08.12.2000.
4. During the pendency of the said civil case No.-772/2000 before the court of Sh G.P. Singh, Civil Judge, THC, Delhi, defendants in connivance Suit No. 44/16 Saraswati Rathore vs. Raghvinder Singh Page No. 2 of 13 with in-charge of the police post Govindpuri, Delhi and other police officials of the police station, Kalkaji and in the presence of SHO broke open the lock of the suit property and removing goods and belonging of the plaintiffs took the possession of the suit premises on 07.12.2000. Goods of the plaintiff was misappropriated and her request by telegram and complaint to the police authorities for restoring her possession was not addressed. However, in the interest of taking an immediate action police registered an FIR bearing No- 875/2000 u/s 147 on the false complaint of the Defendant no-2. Defendant was trying to transfer sublet or part with the possession and trying to make addition alteration, hence the present suit for possession u/s 6 Specific Relief Act, declaration and permanent injunction.
5. Defendant appeared and filed written statement whereby submitting that the plaint filed by the plaintiff is wrong, false as defendant no- 2 is the owner of the aforesaid property and in possession of the same having purchased the same from the defendant no-1 and got the possession from him. It has been further submitted that defendant no-1 was the real owner having purchased the aforesaid property from Smt. Sheela W/o Raj Kumar through general power of attorney, agreement to sell, special power of attorney and Will dt 07.06.1988 and the possession of the same was handed over to the defendant no-1. Defendant no-1 sold the aforesaid property on 12.09.2000 through sale deed, power of attorney, Will to defendant no-2 and physical possession of the same was handed over to the defendant no-2. It has been submitted that plaintiff with ulterior motive tried to dispossess the defendant no-2 and the case was registered bearing FIR no 875/2000 in which Pushpender Kumar Rathore, Krishan Rathore and several other were accused. It has been further submitted that plaintiff with other persons have also taken law into there hands and have committed several illegalities in order to grab the property of the defendants.
6. It has been further submitted that elder brother of the defendant Suit No. 44/16 Saraswati Rathore vs. Raghvinder Singh Page No. 3 of 13 no-1 Kulbhushan Singh Rathore had paid Rs. 100/- as the earnest money for the purchase of the property bearing no.-1351/B, Govind Puri, Transit Camp, Kalkaji, New Delhi out of the total consideration of Rs. 13,225/-. Kulbhushan Singh Rathore failed to make the payment and the sale of the property No. 1351/B, Govind Puri, Transit Camp, Kalkaji, New Delhi did not materialise. Defendant no-1 paid the amount of Rs. 13,225/- to the owner of the property Smt. Sheela for the purpose of property bearing no.1352/B. Defendant no-1 also faced trial of the case u/s 139 Electricity Act r/w section 39 CPC concerning the suit property in which defendant made the payment of the bill duly raised by DESU. It has been submitted by plaintiff that Smt Saraswati Rathore was living in 1351/B, Govindpuri and not in 1352/B, Govindpuri. It has been submitted that both civil suit filed by the plaintiff was dismissed in default and dismissal of the present suit has also been sought.
7. Replication was filed by the plaintiff whereby taking statement of the defendants and reiterating the contents. It has been further stated that defendants were not in possession of the suit property before 07.12.2000.
8. From the pleadings of the parties following issues were framed vide order dated 22.01.2001:-
1. Whether the plaintiff is entitled for the decree of possession of the property as prayed? OPP
2. Whether the plaintiff is entitled for the decree or declaration that she is exclusively owner of the property as prayed? OPP
3. Whether the plaintiff is entitled for the decree of permanent injunction? OPP
4. Relief.
9. In support of her case plaintiff examined herself as PW1 and deposed on the lines of the plaint and relied upon GPA ExPW1/1, Agreement to sell dt 07.06.1988 Ex PW1/2, Special Power of Attorney Ex PW1/3 and Suit No. 44/16 Saraswati Rathore vs. Raghvinder Singh Page No. 4 of 13 deed of Will Ex PW1/4 executed by previous owner Smt Sheela. She also relied upon receipts of earnest money Ex PW1/5, debarring to noticed Ex PW1/6, affidavit of the plaintiff in that regard Ex PW1/7, site plan Ex PW1/8, ration Card Ex PW1/9 and complaints to the police Ex PW 1/10. She also filed additional affidavit whereby putting on record order passed in the FIR 875/2000 as Ex PW1/11.
10. She examined Ex PW2 Raj Kumari Sharma. She appeared and identified the signatures of her father Sh Shaadi Lal on documents as Ex PW1/1, Ex PW1/2, Ex PW1/3 & Ex PW1/4.
11. PW3 Jiya Lal was the previous occupier of the suit property as tenant of the plaintiff at the rate of Rs. 200/- from 01.09.1988. He identified the signatures of Smt. Sheela on Ex PW1/1 to Ex PW1/5. PW4 Nathu Singh, field investigator, he brought the record of original allotment of property bearing no-1352/B and placed on record receipt / certificate dt 23.06.1995 Ex PW4/1 issued by his department.
12. PW5 field investigator, he was also prepared the summoned record and the liaison in respect of suit property. PW6 again filed investigator, he did not bring any record.
13. PW7 Saiyad Sarfiraz Ahmed, Hand Writing Finger Prints Expert. Thereafter, plaintiff's evidence closed.
14. In support of their case, defendant no-1 examined himself as DW1. Defendant no-2 examined as DW2. Defendants examined as Smt Sheela DW3. DW4 Kashmiri Devi she brought the original Ration Card. Defendant no-5 as DW5 Ram Kishan.
15. It is pertinent to note that on 25.05.16 during the course of Suit No. 44/16 Saraswati Rathore vs. Raghvinder Singh Page No. 5 of 13 tendering clarification required by the Court, Counsel for plaintiffs vide his separate statement made on behalf of the Plaintiff dropped the relief of declaration and consequently suit qua the relief of declaration stood dismissed as withdrawn.
16 Counsels for parties have addressed final arguments in support of the case of respective parties. After going through the pleading, evidence and material on record as well as taking into consideration the argument put forth by the respective counsels for parties, issue wise findings are as under:-
ISSUE No. 1:- Whether the plaintiff is entitled for the decree or possession of the property as prayed. OPP ?
17. Plaintiff has filed the present suit under Section 6 of the Specific Relief Act which has been enacted to prevent lawlessness in the society thereby encouraging people to take legal recourse for remedy of seeking possession of property instead of taking law in to their hands and forcibly dispossessing the person in settled possession of property.
18. Section 6 of the above Act provides a summary remedy of restoring possession on the proof that the plaintiff had the possession and he has been wrongly dispossessed. He need not prove his title. The provision aims at discouraging forcible dispossession. Howsoever good title a person may be having with regard to the property he has no right to forcibly gain possession of the same. If there is a disputed right the matter should be settled through due process of law rather than by use of force. The possession is restored without prejudice to the rights of the parties in respect thereof.
19. Thus, in order to be entitled to relief of possession under Section 6 of the Act, Plaintiff has to show that she was in possession of the suit property, she has been dispossessed of the property by the Defendant without Suit No. 44/16 Saraswati Rathore vs. Raghvinder Singh Page No. 6 of 13 due process of law and she has come to the court within 6 months of her dispossession.
20. In the present case, though filed under Section 6 of the said Act but was also filed seeking relief of declaration that Plaintiff be declared owner of the property. Consequently, entire focus of both parties were directed towards proving respective title in the property and in the process parties lost focus of their fight qua the possession based on previous possession. Now since the relief of declaration has been dropped by the Plaintiff, this court will definitely not go into question as to who has title to the property.
21. Plaintiff has pleaded forcible dispossession on 7.12.2000 during the pendency of the civil Suit No. 772/2000 by defendants in connivance with the in-charge Police Post Govindpuri, New Delhi and other police officials of Police Station Kalakaji and in the presence of SHO broke open the locks of the suit property, removed the goods and belongings of the Plaintiff and took the possession of the suit property forcibly on 7.12.2000.
22. Whereas the case of the Defendants is that Plaintiff was not in possession and that Defendant No.1 who is son of the plaintiff had purchased the suit property from one Smt Sheela on 7.06.1988 and sold the property to Defendant No.2 on 12.09.2000 and delivered the physical possession of the suit property to Defendants No.2 on 12.09.2000 and have denied the entire case of the Plaintiff about forcible dispossession.
23. Plaintiff as PW1 in chief examination deposed that after purchasing the property form Sheela she took the possession of the suit property from its previous owner on the same day of execution of documents in her favor. She further deposed that she had got ration card in her favour at the suit address which she had not brought on the that of examination but she could bring it. She had filed suit against the defendants claiming relief of stay Suit No. 44/16 Saraswati Rathore vs. Raghvinder Singh Page No. 7 of 13 against the Defendants and during the pendency of the civil suit, forcible possession was taken by the Defendants No. 1 and 2 in connivance with police by removing the belongings of the Plaintiff from the suit property. On the next day of her examination in chief she brought the ration card photocopy of which was exhibited as PW1/9. She further deposed that her husband has got installed telephone in the suit property and was doing the business of transport and bills were also issued to the person and number of documents were in the Almirah which was taken by the Defendants during forcible dispossession.
24. In cross examination she deposed that Defendants No.1 was his son and he was residing separately for last four years and at the time of death of her husband, Defendant No.1 was residing at Tughlagabad. She denied the suggestion that she never resided in the suit property. She denied the suggestion that her ration card is fabricated document.
25. PW2 is witness to documents of sale in favor of Plaintiff and therefore her testimony is not relevant for the present issue. PW3 Sh Jiya Lal also witness to documents and he also deposed that he resided in the suit property for two years as tenant under the Plaintiff at the rate of Rs 200/-. He also deposed that a telephone in the name of husband of the Plaintiff was installed in the suit property. In cross examination he deposed that he along with his brother was living in the suit property and was posted then at Timarpur in Flood Control department. He did not remember the telephone number but he was present when it was already installed. He further deposed that husband of the Plaintiff started business from the suit property after he vacated the same. He had no rent receipt and he was paying the rent to the plaintiff at her Kanyawas residence and Defendant No.1 was also residing there in the same house. He denied the suggestion that he was not living in the suit property.
26. PW4, PW5 and PW6 are witness to title of the suit property and Suit No. 44/16 Saraswati Rathore vs. Raghvinder Singh Page No. 8 of 13 their testimony is not relevant for the purpose of determining of the present issue. Testimony of PW7 handwriting expert is also not relevant for the present issue.
27. Defendant No.1 in his examination in chief as DW1deposed how and when he purchased suit property from Smt. Sheela and how his documents of purchase was lost and how he got executed fresh documents of purchase from Smt. Sheela and also exhibited relevant pleading, orders etc between the parties. He also deposed that he had to be in custody in connection with theft of electricity case in respect of the suit property. In cross examination of DW1 entire focus of the Plaintiff was towards proving title of the Plaintiff and demolishing that of the defendant No.1. He denied the suggestion that he had taken forcible possession of the suit property on 7.12.2000. He deposed that he had taken over possession of the suit property in 1988 when he had purchased the same from Smt. Sheela. Plaintiff has cross examined the Defendant on documents Ex. DW1/1 to Ex. DW1/8 but did not touch the documents Ex. DW1/9 to Ex .DW1/18, only an objection was raised with regard to mode of prove.
28. DW-2 in his examination in chief has deposed that he purchased the property from defendant no. 1 and took the possession of the suit property from defendant no. 1 on 12.09.2000. He further deposed in his examination in chief that while going through the files of SDM Court, Kalkaji, he came to know that the plaintiff had mentioned her dispossession of the suit property on 29.09.2000 whereas, in the present suit it has been claimed that she was dispossessed on 07.12.2000. Said dispossession of PW-1 was objected to on the ground of being beyond pleading. His cross examination was also directed towards proving that he had not acquired any valid title. In cross examination he denied the suggestion that suit property was forcibly occupied after breaking open the locks on 07.12.2000 in connivance with defendant no. 1 and police. He also denied the suggestion that plaintiff was in possession on the Suit No. 44/16 Saraswati Rathore vs. Raghvinder Singh Page No. 9 of 13 suit property prior to 07.12.2000.
29. Defendant also examined DW-3, the previous owner as admitted by the parties. She supported the case of the defendant deposing that she had sold the property to defendant no. 1 and had handed over possession of the suit property to the defendant no. 1 on 07.06.1988. Her cross examination was also directed towards proving that she had executed documents of title in favour of plaintiff and not in favour of defendant no. 1. Surprisingly, no suggestion was given to her that she had not delivered the possession of the suit property to the defendant no. 1 or had delivered the possession of the suit property to plaintiff. DW-4 and DW-5 are public witness called by the defendants to prove the fact that upto September, 2000, defendant no. 1 was in possession of th suit property and since 12.09.2000 it is the defendant no. 2 who is in possession of the suit property.
30. Plaintiff is claiming possession on the basis of her purchase from Smt. Sheela and she has also relied upon ration card which was issued on 12.09.1991.
31. Defendant is also claiming possession on the basis of his purchase from Smt. Sheela.
32. Since, this is a suit for possession u/s 6 of the Specific Relief Act, title of the party is not required to be gone into. As have already been observed that entire examination and cross examination has gone to proving title in the property. Whereas, plaintiff was required to bring as much evidence as possible to prove the possession over the property irrespective of her title. The ration card Ex. PW 1/9 is admittedly of 1991, nine years prior to her dispossession. It is an admitted case that plaintiff and defendant no. 1 are mother and sons and the relation between them must have remained cordial upto certain period. The relation between the two appears to have deteriorated Suit No. 44/16 Saraswati Rathore vs. Raghvinder Singh Page No. 10 of 13 with the filing of first suit in the year 1999 as borne out of the plaint. Plaintiff did not place on record any document relating to her possession in the suit property nearing the period of her dispossession in 2000.
33. Defendant has examined the previous owner Smt. Sheela from whom both plaintiff and defendant claims to have purchased the property and have obtained possession of the suit property. Smt. Sheela specifically deposed in her chief examination that she had delivered the possession to defendant no.
1. The plaintiff did not give any suggestion to the effect that possession was not delivered to the or that she is in collusion with defendant no. 1 and is deliberately deposing falsely.
34. Defendant no.1 in his examination in chief relied upon the complaint made to SDM by plaintiff u/s 145 & 146 Cr.P.C exhibited as Ex. DW-1/11 and the order dated 24.09.2001 passed by Ld. SDM thereby dismissing the complaint u/s 145 & 146 Cr.P.C.
35. Perusal of the complaint u/s 145 Cr.P.C. reflects that plaintiff herself has mentioned that defendant no.1 with his family was living alone in the suit property and somewhere on 29.09.2000 all of a sudden and clandestinely vacated the suit property even without the knowledge of the plaintiff and that she had further come to know that defendant no. 1 had prepared forged documents and on the basis of which he had entered into an agreement to sell out the aforesaid property. Plaintiff has further moved an application U/s 146 Cr.P.C. therein praying for sealing of the suit property. The said complaint was filed on 30.09.2000 wherein plaintiff had admitted that defendant no. 1 with his family was living alone there. Therefore, her entire story that she was dispossessed on 07.12.2000 does not stand. Counsel for plaintiff has objected to this document being exhibited on the ground of mode of proof. But, plaintiff neither denied the content nor denied the fact of moving such complaint nor put any question in this regard. DW-2 has stated about this Suit No. 44/16 Saraswati Rathore vs. Raghvinder Singh Page No. 11 of 13 fact in his deposition but the same was objected to by the counsel on the ground of being beyond pleading. In the opinion of this Court, the said testimony cannot be ruled out on the ground of being beyond pleadings. A party is not supposed to plead the evidence. What was deposed by DW-2 was a sort of reasoning/ arguments wherein DW-2 pointed out the material differences in the stand of the plaintiff which hit the plaintiff's case in its roots. Plaintiff did not cross examine the said witness on this aspect. As far as objection as to mode of proof of Ex. DW-1/11 and DW-1/12 is concerned, in the opinion of this court, DW-1 was competent to prove the said complaint made against him because it was he who had received the copy of the complaint to respond and therefore he can definitely depose that a particular complaint was filed or made by the plaintiff. The plaintiff by not touching the said documents in cross examination and even by not giving any suggestion to the effect that no such complaint was filed by the plaintiff or by not giving any suggestion to the effect that the contents thereof are incorrect or that the copy of the complaint placed on record by defendant is not the one which was filed by the plaintiff with SDM. In the opinion of this Court, this document otherwise stands admitted and it is the certified copy of a government record which is per se admissible. It is copy of complaint as filed with SDM under signature of officer in blue pen. Moreover, though in the entire plaint plaintiff has not averred that she has filed petition with the Ld. SDM however, in her examination in chief recorded on 19.02.2001, a reference has come that defendant no. 1 gave statement before the SDM, New Delhi that the suit property belongs to his parents.
36. If at all plaintiff had not filed any such complaint or the copy which was placed by the defendant was not the same then she should have placed the copy of complaint which she had filed or should have denied filing of such complaint. In previous suits filed by the plaintiff, the copy of which was placed by the defendant as Ex. DW-1/14 wherein defendant no. 1 has been shown to be the resident of suit property.
Suit No. 44/16 Saraswati Rathore vs. Raghvinder Singh Page No. 12 of 13
37. Except for averment that she was dispossessed of the property forcibly nothing has come on record to establish forcible dispossession.
38. Keeping in mind the totality of the circumstances as brought on record, plaintiff has failed to proof that she was in exclusive possession of the suit property or that she was forcibly dispossessed of the suit property. Once plaintiff has failed to prove possession and forcible dispossession therefore, plaintiff is not entitled for the relief of possession as sought for. Hence, issue no. 1 is decided against the plaintiff and in favour of the defendant.
Issue no. 2:- Whether the plaintiff is entitled for the decree or declaration that she is exclusively owner of the property as prayed. OPP ?
39. This relief has already been dropped by the plaintiff vide statement through her counsel recorded on 25.05.2016 and therefore no present issue is no longer in existence and stands deleted.
Issue no. 3:- Whether the plaintiff is entitled for the decree of permanent injunction. OPP ?
In view of the finding recorded on issue no. 1, issue no. 3 is also hereby decided against the plaintiff and in favour of the defendant.
Relief In view of the findings recorded on all issues, suit of the plaintiff is hereby dismissed. Parties to bear their own cost.
Decree sheet be prepared accordingly.
File be consigned to Record Room after necessary compliance.
(Harish Kumar)
Announced in open court ADJ-13 (Central)/THC
(Judgment contains 13 pages) Delhi/ 01.06.2016
Suit No. 44/16 Saraswati Rathore vs. Raghvinder Singh Page No. 13 of 13