Delhi District Court
Sh. Rang Lal vs Sh. Banwari Lal (Deceased) on 7 November, 2019
IN THE COURT OF MS. GITA,
CIVIL JUDGE-04(W), TIS HAZARI COURTS DELHI.
CS SCJ No.612546/2016
1. Sh. Rang Lal
S/o late Sh. Chunni Lal
Through his LRs
(1)Smt. Ramkali
W/o late Sh. Rang Lal
(2)Sh. Ram Kumar
(3)Sh. Baljit Singh
Both Sons of late Sh. Rang Lal
All R/o Village & Post Office Jharoda Kalan,
New Delhi-110072.
(4)Smt. Roshni Devi
W/o Sh. Om Prakash
R/o Villae Tikri Khurd, Delhi.
......... Plaintiffs
Versus
1.Sh. Banwari Lal (deceased)
S/o late Sh. Mange Ram
Through his LRs
CS SCJ No. 612546/2016 Pages 1/16
(1)Sh. Vijay Pal
(2)Sh. Mukesh
(3)Sh. Shish Pal
All sons of late Sh. Banwari Lal
All R/o Village & Post Office Jharoda Kalan,
New Delhi-110072.
(4)Smt. Sheela
W/o Sh. Satibir
R/o Kh. No. 97/134, Siraspur
North West,Delhi-110043.
(5) Smt. Saraswati
W/o Sh. Raj Pal
R/o 315, Rasoi (420, Pritampura,
Sonepat, Haryana-131029.
(6)Smt. Geeta
W/o Sh. Preet Kumar
R/o Vllage Rasoi, P. O. 20th Mile Stone,
PS Kundli, Tehsil Rai, District Sonepat
Haryana.
2. Sh. Roop Ram S/o late Sh. Bhagwan Singh
3.Sh. Pardeep
S/o Sh. Roop Ram
4. Sh. Daya Chand S/o late Sh. Siba Ram
5. Sh. Hari Singh
6. Sh. Naresh
CS SCJ No. 612546/2016 Pages 2/16
(Deleted vide order dated
01.06.2015)
7. Sh. Lekhi Ram
S/o late Sh. Bhagwan Singh
Deceased through
I. Master Vishal
II. Master Bhagat Singh
Both minor sons of Sh. Lekhi Ram
III. Smt. Resham Wd/o late Sh. Lekhi Ram
All R/o Village & Post Office Jharoda Kalan,
New Delhi-110072.
8. Sh. Sunil
S/o late Sh. Raj Singh
9. Sh. Vinod
S/o Sh. Om Prakash
10. Sh. Jagdish
S/o Sh. Atar Singh
All R/o Village & Post Office Jharoda Kalan,
New Delhi-110072. ...... Defendants
SUIT FOR PERMANENT INJUNCTION
Date of Institution : 07.07.2006
Date of reserving judgment : 16.09.2019
Date of Decision : 07.11.2019
CS SCJ No. 612546/2016 Pages 3/16
JUDGMENT
1. By this judgment, the present suit filed by the plaintiffs against defendants for permanent injunction shall be disposed off. The connected matter is titled as " Banwari Lal vs. Rang Lal" bearing no. 12604/16.
2. The plaintiffs have filed the present suit against the defendants for permanent injunction. It is stated by the plaintiffs that the plaintiff is the owner and in possession of the suit property bearing khasra no. 155/2, admeasuring 30 sq. yards situated in laldora abadi of Jharodan Kalan, Delhi. The plaintiff is in continuous use and possession of the suit property for more than 60 years as the possession of the plaintiff was never disturbed by anyone including the defendants and the plaintiff has also got installed an electricity connection in the suit premises in his own name. It is further stated in the plaint that the defendants are the persons of dubious means and are known as musclemen of the area, who flaunt their muscle power and threaten and terrify the people of the vicinity including the plaintiff and his family and the defendants have ventured to grab the property which are not due fallen on them in the absence of any partition of the property. It is further stated in the plaint that the plaintiff has time and again lodged complaints with various statutory authorities including local police, who has failed to take any action against the CS SCJ No. 612546/2016 Pages 4/16 defendants and the defendants have tried to oust the plaintiff from the possession. The defendants are trying to demolish the suit property. It is further stated in the plaint that the defendants so many times tried to dispossess the plaintiff from the property. On 25.05.2006, the plaintiff called the local police and the police booked the defendant under Section 107/150 Cr. P. C and the kalandra has been filed by the police. It is further stated in the plaint that the defendants have filed a suit for permanent injunction against the plaintiff and his son, thereby prayed for restraining the plaintiff, his attorney, legal representative, agents, associates from installing any water and electricity connection in his individual name or from creating any documents in his name. It is further stated in the plaint that on 25.06.2006, the defendants approached the suit property with their musclemen having lathi, danda and rods in their hands and tried to dispossess the plaintiff from the suit property but timely intervention of the villagers, they could not dispossess the plaintiff, but they have left the suit property saying that they would come again and dispossess the plaintiff from the suit property. It is further stated in the plaint that again on 27.06.2006, the defendants had attempted to dispossess the plaintiff from the suit property and thrashed the plaintiff. The defendants had also attempted to demolish the suit property and with the intervention of the police, the defendants could not succeed in their ill motive to demolish the suit property. It is further stated in the plaint that on 28.06.2006 the plaintiff has also made complaints to the Commissioner of Police, Delhi, DCP (SW) and Hon'ble Lt. Governor of Delhi in this regard and sought their intervention in the matter. It is further CS SCJ No. 612546/2016 Pages 5/16 stated in the plaint that the defendants forcibly got the signatures/thumb impression of the plaintiff on a blank document. The plaintiff has prayed for permanent injunction thereby restraining the defendants and their employees, servants, assigns, representatives, successors and agents not to dispossess the plaintiff from the suit property and not to demolish the suit property i.e. property bearing khasra no. 155/2 admeasuring 30 sq. yards situated in laldora abadi of Jharodan Kalan, Delhi. Hence the present suit.
3. Upon receipt of the plaint, the defendants were summoned. Defendants entered their appearance through counsel and WS was filed on behalf of the defendants.
4. The case of the defendants as per their WS is that the the plaintiff has no cause of action for filing the present suit and has concealed the true and material facts from the court. It is further stated in the WS that the plaintiffs has filed the present suit regarding a common baithak which is jointly occupied by all the defendants and other villagers of Patlan family including the present plaintiff and another civil suit titled as "Banwari Lal vs. Ran Lal' is already pending before the court of Sh. Raj Kumar, Ld. Civil Judge, Delhi wherein the present defendants (except defendant no. 3, 9 and 10) have prayed to restrain the present plaintiff and his son namely Sh. Ram Kumar and their associates not to create any documents and not to install any water or electricity connection in their names as the baithak in question is common one. It is further stated CS SCJ No. 612546/2016 Pages 6/16 in the WS that the present suit is a counter blast to the said suit and since, the present plaintiff has not filed any counter claim in the said suit, therefore, the present suit is not maintainable. It is further stated in the WS that Sh. Banwari Lal on behalf of the entire Patlan family made a written complaint to the SDM concerned and the Deputy Commissioner (South-West) for taking necessary action. The concerned authorities have already initiated an inquiry in this regard. The said lal dora certificate is false and fake as the number mentioning as khasra no. 155/2 does not exist in lal dora and the entire lal dora of the village Jhardon Kalan is one number, therefore, the alleged certificate is false and fabricated by the plaintiff and his son Ram Kumar. Therefore, the present suit is liable to be dismissed. It is further stated in the WS hat after filing of the earlier suit in reference "Banwari Lal vs. Rang Lal" and appeal, the present plaintiff and his son Sh. Ram Kumar prayed to the present defendants and other villagers to settle the present dispute. In pursuance to that a Panchyati Faisla dated 22.06.2006 was arrived at between the present plaintiff, his son and the present defendants and other family members of the Patlan family and other villagers in the presence of local Councellor Smt. Ishwanti Dagar and the same was reduced into writing wherein both the plaintiff and his son and defendants and other villagers signed. Therefore the present suit is false, baseless, concocted and liable to be dismissed. Rest of the contents of the plaint are also denied. Thus, The defendants have prayed for dismissal of the present suit.
CS SCJ No. 612546/2016 Pages 7/16
5. After completion of the pleadings, the following issues were framed by Ld. Predecessor of this Court vide order dated 12.09.2006:
1. Whether the suit of the plaintiff is not maintainable in view of preliminary objection no. 3 of the WS? OPD.
2. Whether the plaintiff is entitled for the decree of permanent injunction, as prayed in para (a) of prayer clause? OPP.
3. Relief.
6. It is pertinent to mention here that in the present matter inadvertently issues were again framed on 22.08.2016 which are follows:
1. Whether the plaintiff has no cause of action to file the present suit in terms of Pachyat Faisla dated 22.06.2006? OPD.
2. Whether the plaintiff has entitled to decree of permanent injunction as prayed for? OPP.
3. Relief.
7. In effect, issues framed on 12.09.2006 and 22.08.2016 are similar.
8. Thereafter, vide order dated 22.08.2016, the suit bearing no. 12604/16 tilted as "Banwari Lal & vs. Rang Lal" in which the plaintiffs herein are the defendants is consolidated with the present suit bearing no. 612546/16 and it was ordered that evidence shall be recorded in one file which will be read in both the files for the purpose of judgment.
CS SCJ No. 612546/2016 Pages 8/16
9. The defendants herein (and plaintiff in connected matter titled as"
Banwari Lal vs. Rang Lal" bearing No. 12604/16) have examined two witnesses in support of their contention i.e. Sh. Jit Ram as PW-1 and Sh. Sh. Shish Pal as PW-2.
PW-1 tendered his affidavit Ex. PW1/A in evidence along with the documents Ex. PW1/2 to Ex. PW1/4 and Mark-A which are as follows:
(1) Photocopy of the collection register; Mark-A. (2) Site Plan; Ex. PW1/2.
(3) Copy of Panchayati Faishla which is part of the record of the connected case i.e. CS No. 612546/16; Ex. PW1/3. (4) Copy of order dated 15.07.2006 which is passed in the connected i.e. CS No. 612546/16; Ex. PW1/4.
10. PW-2 Sh. Shish Pal tendered his affidavit Ex. PW2/A in evidence. He has relied upon the documents already exhibited as Ex. PW1/2 to Ex. PW1/4 and Mark-A. PW-1 and PW-2 were duly cross-examined by the Ld. Counsel for the defendants and discharged.
11. The plaintiffs herein (and defendants in connected matter titled as Banwari Lal vs. Rang Lal" bearing No. 12604/16) have examined three CS SCJ No. 612546/2016 Pages 9/16 witnesses in support of their contention i.e. Sh. Ram Kumar as DW-1, Sh. Sunder @ Santokh Singh as DW-2 and Sh. Rajpal as DW-3.
DW-1 Sh. Ram Kumar has tendered his affidavit Ex. DW1/A along with the following documents:
(1) Copy of lal dora certificate issued by the Revenue Authorities; Ex.
DW1/1 (OSR).
(2) Document mentioning the return of money of the Panchayat Settlement in the presence of counselor Smt. Ishwanti Dagar is Ex. DW1/2.
(3) Copy of receipts of installation of electricity Connection and copy of meter report, progress chart of new connection dated 11.05.20006, revised demand notice dated 11.05.2006; Ex. DW1/3 (colly) (OSR).
(4)Copy of application dated 06.09.2005 for apply of water connection ; Ex. DW1/4 (OSR).
(5) Copy of police complaint dated 27.06.2006; Ex. DW1/5.
12. DW-2 Sh. Sunder @ Santokh Singh has tendered his affidavit Ex. DW2/A in evidence.
13. DW-3 Sh. Rajpal has tendered his affidavit Ex. DW3/A in evidence.
All the defendants' witnesses were duly cross-examined by the Ld. CS SCJ No. 612546/2016 Pages 10/16 Counsel for the plaintiffs and discharged.
14. Arguments heard. Record perused. Ld. Counsel for the plaintiff has placed reliance upon the following judgments:
1. Phoolwati & Ors. vs. Ram Dei & Ors, decided on 13.03.2008;
2. Kishore Samrite vs. State of U. P., decided on 18.10.2012;
3. Ambir Prasad vs. Ram Ekbal Rai;
4. Anathula Sudhakar vs. P. Buchi Reddy.
Ld. counsel for the defendants has also placed reliance upon the following judgments:
1. Sh. Ram Phool vs. The Municipal Corporation of Delhi & Anr, decided on 21.07.2016 and
2. Suresh Dutt vs. Harbans Lal and Ors., decided on 24.03.2008;
My issue wise findings are as follows:
issue No. 1: Whether the suit of the plaintiff is not maintainable in view of preliminary objection no. 3 of the WS?
(as framed on 12.09.2006)
and
Issue no. 1: Whether the plaintiff has no cause of action to
CS SCJ No. 612546/2016 Pages 11/16
file the present suit in terms of Pachyat Faisla dated 22.06.2006? (as framed on 22.08.2016) The onus to prove this issues issue was upon the defendants.
15. In respect of the issue no. 1, as framed on 12.09.2006, this court fails to understand as to how non-filing of counter-claim to another connected suit titled as "Banwari Lal vs. Rang Lal" bearing No. 12604/16 is fatal to the present suit as for filing the counter-claim, there are certain conditions which are required to be fulfilled.
On the contrary, the plaintiff can file a separate suit if S/he has cause of action for filing the same.
Accordingly, issue no. 1 (as framed on 12.09.2006) is decided against the defendants and in favour of the plaintiffs.
16. In respect of issue no. 1 (as framed on 22.08.2016), in the opinion of this court, cause of action to file the suit has to be seen from pleadings of the plaintiff as averred in the plaint or in other words, court has to see prima facie cause of action on the basis of the pleadings of the plaintiff in the plaint. If prima facie cause of action is disclosed in the plaint, it is maintainable. In the present case, whether the plaintiff has no cause of action rather to say has no right, title or interest in the suit property in CS SCJ No. 612546/2016 Pages 12/16 terms of the Panchyat Faisla dated 22.06.2006 was a matter of trial. However, the defendants herein (and plaintiffs in the connected matter titled as "Banwari Lal vs. Rang Lal" bearing No. 12604/16) has failed to prove the said Panchyat Faisla dated 22.06.2006, Ex. PW1/3 as observed in issue no. 1 and 3 in connected matter titled as "Banwari Lal vs. Rang Lal" bearing No. 12604/16. Hence, it can be said that the plaintiffs have cause of action to file the present suit.
Accordingly issue no. 1 (as framed on 22.08.2006) is also decided against the defendants and in favour of the plaintiffs.
Issue no. 2: Whether the plaintiff is entitled for the decree of permanent injunction, as prayed in para (a) of prayer clause? (as framed on 12.09.2006).
and Issue no. 2: Whether the plaintiff has entitled to decree of permanent injunction as prayed for? (as framed on 22.08.2016).
The onus to prove this issue was upon the plaintiff.
17. The plaintiff has filed the present suit against the defendants for permanent injunction in respect of the suit property bearing khasra no. 155/2, admeasuring 30 sq. yards situated in laldora abadi of Jharodan CS SCJ No. 612546/2016 Pages 13/16 Kalan, Delhi alleging that he is the owner and in possession of the suit property for more than 60 years.
18. The defendants have denied the ownership and possession of the plaintiff over suit property. The defence of the defendants are that the suit property is a common baithak (meeting place) left by the common ancestor of the plaintiff and the defendants and the said baithak i.e. suit property is jointly occupied by the defendants, plaintiffs and other villagers of alleged Patlan family.
19. "Section 101 of the Indian Evidence Act, 1872 defines "burden of proof" and laid down that the burden of proving a fact always lies upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of the Indian Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact lie on any particular person"
20. In order to discharge his onus, the plaintiff has examined three witnesses namely Sh. Ram Kumar as DW-1, Sh. Sunder @ Santokh Singh as DW-2 and Sh. Rajpal as DW-3 (in connected matter titled as CS SCJ No. 612546/2016 Pages 14/16 "Banwari Lal vs. Rang Lal" bearing no. 12604/16).
The plaintiff has placed reliance upon the Lal Dora Certificate issued by revenue authority, Ex. DW1/1 and documents related to Electricity connection, Ex. DW1/3 (colly) in order to show his ownerhip and possession over the suit property.
21. In this respect, this court is enlightened with the judgment of Hon'ble High Court of Delhi titled as "Shree Ram Phool vs. the MCD & Anr" in RSA No. 138/2019 decided on 21.07.2016 and well settled legal position of law as established from Catena of Judgments of Superior Courts wherein it was held that Lal Dora Certificate, Electricity bills etc. cannot be said to be proof of title over the property. The plaintiff has not led any other evidence to show his possession over the suit property.
Hence, the plaintiff has failed to prove on record that he is the owner and in possession of the suit property.
Accordingly, issue no. 2 (as framed on 12.09.2006) and issue no. 2 (as framed on 22.08.2016) is decided against the plaintiff.
Issue No. 3:
Relief:
22. In view of findings of this court upon issue no. 2, the plaintiff is not CS SCJ No. 612546/2016 Pages 15/16 entitled to any relief. Accordingly, the suit of the plaintiff is dismissed. No order as to costs.
23. Decree sheet be prepared accordingly.
24. File be consigned to record room after due compliance.
This order consist of 16 pages duly signed. Digitally
signed by GITA
GITA Date:
2019.11.08
12:53:27
Pronounced in Open Court +0530
Today, this 7th of November, 2019 (Gita)
CJ-04 (West),THC,
Delhi.
CS SCJ No. 612546/2016 Pages 16/16