Delhi District Court
Sh. Karam Veer vs Sh. Madan Lal Arora on 31 August, 2015
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
RCA No. 19/15
Case I.D. Number : 02402C0153722015
IN THE MATTER OF :
Sh. Karam Veer
S/o Lt. Sh. Rishal Singh
R/o A1/251, Nand Nagri,
Delhi110093 .......Appellant
VERSUS
Sh. Madan Lal Arora
S/o Sh. G.R. Arora
R/o H.NO. C282,
Vivek Vihar,
Delhi ........ Respondent
Date of Institution of Appeal : 07.05.2015
Arguments heard on :27.08.2015
Date of Judgment/Order :31.08.2015
Decision : Appeal is dismissed with cost.
RCA No. 19/15
Karamveer Vs.Madan Lal Arora page 1 of 18
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
JUDGMENT
1. The present appeal impugns the judgment and decree dated 04.04.2015 passed by Ld. JSCC/ASCJ/Guardian Judge (NE), Karkardooma Courts, Delhi in suit No. 468/12 whereby the suit for permanent injunction filed by the plaintiff/appellant against the defendant/respondent praying for restraining the defendant, his agents, servants, associates, etc. from illegality dispossessing the plaintiff from the property bearing no. C336, area measuring 290 sq. yards, out of Khasra No. 11, situated at Village Saboli, in the abadi of Partap Nagar, Illaqa Shahdara, Delhi93 (hereinafter called the suit property).
(The parties are referred herein as per their respective status before Ld. Trial Court.)
2. The brief and relevant facts in the background of which the present appeal was filed by the appellant who is the plaintiff in the original suit are reproduced from the impugned judgment as follows: (I) Plaintiff claimed himself the absolute owner of the suit property as he purchased the suit property on 13.02.1998 from Smt. Lajja Wati for an amount of Rs. 2,50,000/. It has been stated that the said land has been constructed by the plaintiff by means of a boundary wall of 6 feet height alongwith door fitted at the Western side of the said property. It has been stated that since the day of its purchase, the plaintiff is the absolute owner and in possession of the suit property and recently he has raised the construction on the said property without any interference from any RCA No. 19/15 Karamveer Vs.Madan Lal Arora page 2 of 18 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. corner. It has been further stated that after raising the boundary wall in the suit property, the defendant came alongwith four other persons at the spot and asked about the owners of the property on 21.09.2012. It has been further stated that the defendant stated that the plaintiff was in unauthorized occupant in respect of the suit property. On the asking of the plaintiff, the defendant was unable to show any documentary evidence to show himself to be the owner of the suit property. It has been alleged that the defendant extended threats and asked the plaintiff to handover the possession of the suit property to the defendant. It has been further stated that the defendant is not having any right , title or interest in the property in question but the defendant again came to the suit property on 15.10.2012 and asked the plaintiff to hand over the possession of the same to the defendant. It has been further stated that the plaintiff lodged a complaint with the police on 19.10.2012. It has been further stated that the police failed to take any action and hence the present suit.
(II) Written statement has been filed by the defendant in which it is stated that the plaintiff is playing a fraud upon this court by withholding the material information. The defendant has stated that the plaintiff had executed an Agreement to sell dt. 25.05.2011 in favour of the defendant with regard to one plot being part of Khasra no. 1, Khatauni no. 103, Village Mandoli, ad measuring 300 sq. yards for Rs. 10,000/ per sq. yards out of which Rs. 5 lakhs in cash as earnest money was paid to the plaintiff and a separate receipt to this RCA No. 19/15 Karamveer Vs.Madan Lal Arora page 3 of 18 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. effect was executed by the plaintiff acknowledging the receipt of the earnest money. The defendant, thereafter, came to know that prior to the execution of the said Agreement to sell, the plaintiff had already entered into an agreement dt. 29.03.2011 qua the same property with Smt. Urmila Panchal and Liyaqat Ali and the plaintiff had already received an amount of Rs. 5 lakhs in cash. It has been further stated that after coming to know about the said factual position, the defendant apprised the plaintiff that he had cheated the defendant and asked the plaintiff to return back his money back. It has been further stated that the defendant lodged a complaint dt. 08.11.12 with the police authorities and also filed a criminal complaint against the plaintiff u/s 200 Cr.PC r/w sections 420/406/506 IPC wherein the police filed a status report acknowledging the cheating on the part of the plaintiff. The defendant has alleged that merely to pressurize him, the plaintiff has manipulated, forged and fabricated the documents qua the suit property and filed the present frivolous case only on 25.10.12 despite the fact that the suit property is exclusively owned and possessed by the defendant. It has been further stated that after receipt of the documents such as the GPA dt. 13.02.1998 relied upon by the plaintiff, the defendant filed an application under RTI Act with the concerned Registrar on 10.12.12 and the Sub Registrar replied that the said document was not tallying with the alleged GPA dt. 13.02.1998 and as such, the document relied upon by the plaintiff are not genuine. It has been further stated RCA No. 19/15 Karamveer Vs.Madan Lal Arora page 4 of 18 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. that there was some civil litigation in respect of the suit property which was filed by one Sh. Balwan Dhama in the year 2004 vide suit no. 96/04/01 against one Sh. Man Singh and others which was dismissed by the court of Sh. Ravinder Singh, the then Ld. Civil Judge, Karkardooma Courts, Delhi vide judgment and decree dt. 26.09.2005. It has been further stated that the appeal II was preferred by the appellant but ultimately the matter was compromised and as such, the claim of the plaintiff qua the suit property is apparently false and after thought. It has been further stated that suit property was sold by Sh. Man Singh after dismissal of the case from the civil court vide sale documents dt. 02.08.1999. It has been further stated that the suit property was sold out of Sh. Surender Kumar vide registered GPA admeasuring 200 sq. yards who further sold the said plot to one Sh. Jai Ram vide sale documents dt. 15.03.2012. It has been further stated that Sh. Jai Ram and Sh. Surender Kumar further sold the sold property to the answering defendant vide sale documents dt. 07.06.2012 for lawful consideration and parted with the actual physical possession. It has been further stated that similarly Sh. Man Singh further sold 80 sq. yards to Sh. Dharmabir vide sale documents dt. 06.06.2012 and Sh. Dharambir sold the said property to the answering defendant vide sale documents dt. 04.10.2012 and parted with the possession of the same to the defendant. It has been further stated that thus, after purchasing the entire suit plot, the defendant in the RCA No. 19/15 Karamveer Vs.Madan Lal Arora page 5 of 18 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. month of October 2012 raised boundary wall and affixed the gate over it in order to avoid any encroachment from anti social elements and appointed a chowkidar over the suit property. It has been further stated that the entire story putforth by the plaintiff is false and concocted; the plaintiff has no locus standi to file the present suit and the present suit is without any cause of action. It has been further stated that since the plaintiff is admittedly not in possession of the suit property and defendant is in possession of the suit property, the suit for injunction simlicitor is not maintainable. Rest of the contents of the plaint have been denied by the defendant in his WS.
(III) Replication of the written statement of defendant filed wherein the plaintiff has denied the contents of the written statement and reiterated the contents of the plaint.
(IV) From the pleading of the parties, the following issues were framed by my Ld. Predecessor vide Order dt. 21.03.2013: (1) Whether the plaintiff is in possession of the suit property? OPP (2) Whether the plaintiff is entitled for decree of permanent injunction? OPP (3) Relief.
3. The appellant has preferred the instant appeal on the ground that the impugned judgment and decree dated 04.04.2015 is not sustainable in law and RCA No. 19/15 Karamveer Vs.Madan Lal Arora page 6 of 18 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. facts and is passed without application of judicial mind. It is further contended that the impugned judgment and decree is not passed on the basis of the admitted and proved facts and the judgment suffers from illegality and infirmity. As mentioned the Ld. Trial Court failed to appreciate the correct facts of the case and relevant materials on record and in view of the fact that testimony of the plaintiff remains impeached. This appeal is filed praying to set aside the impugned judgment and decree.
4. Notice of the appeal issued to the respondent. The respondent did not wish to file reply to the appeal and supported the impugned judgment and decree.
5. I have heard the Ld. Counsel for the appellant and respondent and perused the relevant materials available on record along with Trial Court Records. I have also considered the relevant provisions of law regarding grant of injunction alongwith the written arguments filed on behalf of the appellant.
6. To appreciate the rival contentions of the parties, it is necessary to refer relevant provisions of law regarding injunction i.e. Section 38 of Specific Relief Act, 1963 which is as below: Section 38. Perpetual injunction when granted (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
RCA No. 19/15
Karamveer Vs.Madan Lal Arora page 7 of 18 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. (2) When any such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invade or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the inunction is necessary to prevent a multiplicity of judicial proceedings.
7. The injunction is a discretionary relief and its grant of refusal depends upon the circumstances and facts of a particular case. The discretion has to be reasonable guided by judicial principles and law. It must not be arbitrary, vague and fanciful. As held in JT 1994 (6) SC 588 , interest of right not shown to be in existence cannot be protected by injunction. Issuance of order of an injunction is absolutely discretionary and equitable relief. It is not mandatory that for mere asking such relief should be given. The interest or right not shown to be in existence cannot be protected by injunction. RCA No. 19/15
Karamveer Vs.Madan Lal Arora page 8 of 18 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
8. Two elements have to be taken into consideration for granting a injunction. In the first place, the Court has to determine what acts are necessary in order to prevent a breach of obligation; in the second place the requisite acts must be such as the Court is capable of enforcing. Caution is required in the grant of preventive relief. The exercise of power to grant mandatory injunction must be attended with the greatest possible caution and is strictly confined to cases where the remedy of damage is inadequate for the purpose of justice and the restoring of things to their former condition is the only remedy which will meet the requirements of the case. The court will not interfere except in cases where there are extreme serious damage caused which cannot be compensated:
C. Kunhammad v. C.H. Ahamad Haji A.I.R. 2001 KER. 101.
9. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for injunction, this suit is to be decided on the basis of preponderance of probabilities. As held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, "A civil case is decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a RCA No. 19/15 Karamveer Vs.Madan Lal Arora page 9 of 18 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit "
preponderance of probability" would serve the purpose for obtaining a decree".
10. Section 101 of the Evidence Act, 1872 defines " burden of proof" and laid down that the burden of proving a fact always lying 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 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 shall lied on RCA No. 19/15 Karamveer Vs.Madan Lal Arora page 10 of 18 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. any particular person. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn. In view of this legal position of the Evidence Act, it is clear that it is for the appellant to prove that he has right, title or interest in the suit property.
11. As mentioned in the plaint itself, the plaintiff/appellant is seeking relief of injunction and possession on the basis of title of a vacant plot. In view of the judgment report as 2008 VII AD SC 413 and relied by the Ld. Trial Court, the plaintiff is under obligation to prove that he has right, title or interest in the suit property. Even otherwise, the onus to prove the issues remained upon the plaintiff. In view of the testimonies and documents on record, it is proved that the plaintiff has failed to prove his title in view of the contentions in the pleadings. The plaintiff on the otherhand relied upon false documents i.e GPA EX. PW1/2 which has been proved in view of testimony of DW2. As the plaintiff, has failed to prove the contentions in the pleadings, the Ld. Trial Court rightly dismissed the suit of the plaintiff. Moreover, as the plaintiff has relied upon the false documents knowingly, this Court itself finds inconsonance with RCA No. 19/15 Karamveer Vs.Madan Lal Arora page 11 of 18 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. the findings of Ld. Trial Court regarding dismissal of the suit with cost of Rs. 2 lakhs. In considered opinion of this Court, Ld. Trial Court was lenient and benevolent while not referring the matter before Competent Court in accordance with provisions of Section 340 of Cr. PC. It is reiterated that the plaintiff is not entitled for the relief as prayed in the suit and accordingly the same was rightly dismissed by Ld. Trial Court with cost. The Judgment relied by the Ld. Counsel for the appellant in Crl. Appeal no. 169 of 2014 of SC is neither helpful nor applicable in the facts and circumstances of this case.
12. From the materials on record, it is proved that the plaintiff had no right, title or interest in the suit property. The injunction is a discretionary relief. As apparent from the records, the testimony of the PWs was totally shattered during crossexamination and nothing was proved by the plaintiff regarding right, title or interest in the suit property. The findings of the Ld. Trial Judge appears to be correct and sustainable in view of the records. The same does not warrant any interference.
13. I have gone through the judgment reported as AIR 2008 SC 2033 wherein the scope of a suit for permanent injunction was examined by Hon'ble Supreme Court in detail and the position in regards to the suits for prohibitory injunction relating to immovable property is summarized as under:
(i) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and RCA No. 19/15 Karamveer Vs.Madan Lal Arora page 12 of 18 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
possession, with or without a consequential injunction is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor.
(ii) As a suit for injunction simplicitor is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of the title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(iii) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title ( either specific, or implied). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, RCA No. 19/15 Karamveer Vs.Madan Lal Arora page 13 of 18 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
the Court will not investigate or examine orrender a finding on a wuestion of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(iv) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it RCA No. 19/15 Karamveer Vs.Madan Lal Arora page 14 of 18 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. It was further held while answering the scope of the suit for permanent injunction relating to immovable property, the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief are well settled. It is mentioned: 11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simplicitor will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in lawful possession is not entitled to an injunction against the rightful owner.
11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simplicitor, without claiming the relief of possession.
11.3. Where the plaintiff is in possession but his entitled to the property in dispute, or under a cloud, or where a defendant asserts a title thereto and there is also a threat of dispossession RCA No. 19/15 Karamveer Vs.Madan Lal Arora page 15 of 18 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
The ratio of the judgment is squarely applicable in the facts and circumstances of the case. This court does not find any illegality and infirmity in the impugned judgment and the facts are correctly examined to reach the conclusion which does not warrants for any interference.
14. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant RCA No. 19/15 Karamveer Vs.Madan Lal Arora page 16 of 18 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi. fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title.
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this Court the plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
15. In view of the aforesaid discussions, the Ld. Trial Court has examined the issues framed in the suit in proper perspective. Mere oral averments by the appellant is not sufficient for grant of relief. This court does not find any illegality or infirmity in the impugned judgment and decree dated 04.04.2015 which is well reasoned/correct appreciation of facts and in accordance with the provisions of law. The impugned judgment is therefore entitled to be upheld. There is no merit or substance in the appeal which is liable to be dismissed. The appeal is therefore dismissed with cost.
RCA No. 19/15
Karamveer Vs.Madan Lal Arora page 17 of 18 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
16. Decree sheet be drawn accordingly.
17. Trial Court record be sent to the concerned court along with copy of this judgment.
18. Appeal file be consigned to record room.
Announced in open Court on this 31st day of August, 2015 G. N. Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
RCA No. 19/15
Karamveer Vs.Madan Lal Arora page 18 of 18