Delhi District Court
Suresh Chander vs Sunder Singh And Ors on 23 January, 2024
IN THE COURT OF SH. SUMIT DALAL
ADDITIONAL DISTRICT JUDGE - 04
SOUTH WEST DISTRICT, DWARKA COURTS, NEW DELHI
Civil Suit No. 1247/18
In the matter of :
SURESH CHANDER
S/o Late Sh. Sher Singh
R/o RZ-63, Y-Block,
New Roshan Pura, Najafgarh,
New Delhi -110043. ....Plaintiff
Versus
1) SUNDER SINGH
S/o Late Sh. Sher Singh
2) AZAD SINGH
3) RAJESH KUMAR
4) ASHOK KUMAR
ALL S's/o Sh. Sunder Singh
R/o Village- Malikpur,
Najafgarh, New Delhi-110043
5. SHO
PS Jaferpur
District: South West ....Defendant
Suit for possession under Section 6 of Specific Relief Act and
permanent injunction.
Date of institution of the suit : 14.12.2018
Final Arguments Heard on : 15.01.2024
Date of Judgment : 23.01.2024
CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 1 of 44
JUDGMENT
23.01.2024
1. The present suit has been filed under section 6 of Specific Relief Act for possession and permanent injunction against the defendants.
BRIEF FACTS OF THE CASE:
2. The brief facts as per the pleadings of the plaintiff are as follows:
a. The lawsuit involves a dispute over an ancestral property located in Malikpur, Najafgarh, New Delhi, which includes a house and agricultural land. Late Sh. Sher Singh had three sons, the plaintiff, the defendant no. 1 and Late Sh. Bijender. Defendant no. 2 and 3 are sons of defendant no. 1.
b. The father of the plaintiff and defendant no. 1, Late Sh. Sher Singh expired in 1986. The plaintiff's other brother, the late Sh. Bijender, was unmarried and had a mental disability. The responsibility of caring for him fell to the plaintiff.
c. After the death of the father, the property was partitioned between the three brothers i.e. the plaintiff, the defendant no. 1 and Late Sh. Bijender on 09.07.1989. The settlement was arrived before the eminent persons of the Panchayat and was agreed by all the brothers.
d. According to the partition, one of the suit properties i.e. the residential house - House No. 213, Near Pole No. 64 in village Malik Pur, Najafgarh, New Delhi came to the share of the plaintiff and thus the plaintiff along with his deceased brother Late Sh.
CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 2 of 44 Bijender took possession of the same. Hereinafter this property will be referred as 'Suit Property No. 1'. The Suit Property No. 1 consisted of 5 rooms, one kitchen, latrine, bathroom and veranda. e. The agricultural land was also partitioned between the three brothers i.e. the plaintiff, the defendant no. 1 and Late Sh. Bijender. The land in which the tube well had already been installed i.e. Khasra No. 41/22, Village Malikpur, Najafgarh, New Delhi comes to the share of the plaintiff and Late Sh. Bijender. Thereafter, the plaintiff took the possession of the tube well. Hereinafter, the tube well will be referred as 'Suit Property No. 2'. f. The plaintiff alleges that despite the partition, the defendants always attempted to seize his and the late Bijender's property due to which there were quarrels between the parties. In 2002, there was an altercation between Defendant No. 2 and the plaintiff's wife, prompting the plaintiff to move to a different home for his family's peace. The plaintiff along with his family shifted to Roshan Pura, Najafagrh, New Delhi. Despite relocating, the plaintiff and his family still used to visit the Suit Property No. 1 and Suit Property No. 2 every fortnight for maintenance and care. g. In March 2018, the plaintiff's wife and son visited their property in Malikpur and discovered that the defendants had cut down trees on their agricultural land and were constructing a room where a tube well used to be. The plaintiff's wife confronted the defendants and filed a complaint with the S.H.O. at PS Jafferpur Kalan (DD No. 29B). Despite calling the police, no action was taken against the defendants, possibly due to Defendant No. 3's influence in the CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 3 of 44 police force. Subsequently, Defendant No. 2 proposed a mutual settlement to the plaintiff's wife, and an agreement was reached between the parties on the same day.
h. On June 13, 2018, the plaintiff's wife found the main gate of their house in Malikpur, Najafgarh, New Delhi, damaged and an unauthorized motorcycle parked inside. She contacted the PCR twice and filed a written complaint with the SHO at PS Jaffarpur Kalan. On the same day, complaints were also lodged with the Sub Divisional Magistrate, Najafgarh, and the DCP of Dwarka District, highlighting threats to the life and property of the plaintiff's family. Subsequently, on June 25, 2018, the Tehsildar of Najafgarh requested the SHO at PS Jaferpur Kalan to investigate the matter. i. As a result of being dispossessed from both suit property no.1 and suit property no.2, the plaintiff has initiated this current lawsuit under Section 6, seeking the following remedies:
I. Pass a decree of possession in favour of the plaintiff and against the defendants qua the suit property House no. 213, Near pole no. 64, Village Malik pur, Najafgarh, New Delhi consisting of 5 Room; 1 Kitchen; Verandah (more specifically shown in site plan and the Tube Well situated in agricultural Land in Kh. 41/22, Village Malik Pur, Najafgarh, New Delhi, in the interest of justice; II. Pass a decree of permanent injunction in favour of the plaintiffs and against the defendants thereby restraining the defendants, their agents, servants, associates from creating any kind of third-party interest in the suit property CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 4 of 44 mentioned above or from raising any kind of construction, addition, alteration in respect of suit property House no. 213, Near pole no. 64, Village Malik pur, Najafgarh, New Delhi consisting of 5 Room; 1 Kitchen; Verandah (more specifically shown in site plan and the Tube Well situated in agricultural Land in Kh. 41/22, Village Malik Pur, Najafgarh, New Delhi, in the interest of justice; III. Cost of the may also be awarded in favour of the plaintiffs and against the defendants;
IV. Any other relief or reliefs which this Hon'ble court may deem fit and proper in the circumstances of the case may also be awarded in the favour of plaintiff and against the defendant.
3. The defence of the defendants as per the joint Written Statement is as follows:
a. First the preliminary objections:
I. The plaintiff has no locus standi in the present suit and he has no right and authority in respect of the premises in question and thus the suit is not maintainable and is liable to be dismissed.
II. The plaintiff has not come to this court with clean hands and has suppressed the material facts from the court. III. The suit of the plaintiff is not maintainable as the same has not been properly valued for the purposes of court fee and jurisdiction.
b. Following the passing of their father, the plaintiff and Defendant CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 5 of 44 No. 1, along with their respective families, lived together with their mother. About 20 to 21 years ago, the plaintiff requested the mother to buy a house in Najafgarh for his family. This property was acquired for a total of Rs. 3,20,000, paid entirely from the savings of mother and that of the defendant no. 1. The plaintiff did not contribute financially to the purchase of this house. c. After acquiring the Najafgarh property, a family agreement was reached between the plaintiff and Defendant No. 1 while their mother was still alive. According to this arrangement, the Najafgarh house would go to the plaintiff, and the Malikpur village residence would be given to Defendant No. 1. The late Sh. Bijender, another family member, did not claim any share in these residential properties.
d. Following the family settlement made in their mother's presence, the plaintiff and his family relocated to the Najafgarh house allocated to him. Concurrently, the entire house bearing No. 213 was assigned to Defendant No. 1 as per the agreement. Late Bijender and Defendant No. 1's mother opted to reside with Defendant No. 1's family.
e. Following Bijender's passing, the plaintiff is alleged to have developed malicious intentions, scheming to claim Bijender's inheritance in the ancestral properties. This inheritance is also legally owed to Defendant No. 1 as a primary heir. The plaintiff and his family are accused of fabricating complaints against the defendants, using various pretexts to coerce the defendants into acquiescing to the plaintiff's unfounded claims. The defendants and CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 6 of 44 their family have maintained undisputed, continuous control over the disputed property for more than 20 years, indicating that the plaintiff has no legitimate stake or involvement in the property.
ISSUES
4. Thereafter, on completion of pleadings, issues were settled vide order dated 08.12.2021 and the following issues were framed:
1. Whether the plaintiff is entitled for decree of possession of suit property as prayed for? OPP
2. Whether the plaintiff is entitled for decree of permanent injunction as prayed for? OPP
3. Whether the plaintiff has not come to the Court with clean hands and has suppressed material facts? OPD
4. Whether the plaintiff has no locus standi to file the present suit? OPD
5. Whether there is no cause of action in favour of the plaintiff and against the defendant? OPD
6. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD
7. Relief EVIDENCE
5. In the trial of this case, Sh. Suresh Chander, the plaintiff, testified as the only witness (PW1) on his behalf. Conversely, for the defense, Defendant No. 2 was the sole individual who testified, serving as witness DW-1.
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6. During the examination in chief, PW1 Sh. Suresh Chander had deposed in line with the plaint of this suit and tendered his evidence affidavit as Ex PW1/A and also relied upon the following documents:
(1) Copy of Bhumidhar and copy of Khatauni as Ex. PW1/1 (Colly) (OSR) (2) Copy of bills of Electricity and of Delhi Jal Board as Ex.PW1/2; de-exhibited and marked as Mark 1 and Mark 2 respectively.
(3) Copy of letter issued by Delhi Electricity board dt.07.04.1998 and dated 15.02.2003 as Ex.PW1/3; de-exhibited and marked as Mark 3.
(4) Copy of MLC dated 19.06.2002 as Ex. PW1/4 (OSR); de-exhibited and marked as Mark 4 (5) Copy of complaint to PS Jaffarpur vide DD No.29B as Ex. PW1/5; de-exhibited and marked as Mark 5 (6) Copy to complaint to PS and DCP dated 15.06.2015 as Ex.PW1/6; de-exhibited and marked as Mark 6.
(7) Copy of MLC 825/2002 as Ex. PW1/7;
(8) Copy of complaint to SHO, Jaffarpur dated 13.06.2018 along with registered postal receipt as Ex.PW1/8; de-exhibited and marked as Mark 8 (9) Copy of complaint to DCP dated 15.06.2018 as Ex.PW1/9; de-exhibited and marked as Mark 7.
CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 8 of 44 (10) Copy of criminal revision as Ex.PW1/10;
de-exhibited and marked as Mark 11.
(11) Copy of complaint dated 26.10.2013 as Ex.
PW1/11; de-exhibited and marked as Mark 10.
(12) Copy of settlement of tubewell and 3 bigha land dated 04.10.2002 and settlement dated 09.07.1989 as Ex.PW1/12 and Ex. PW1/12(1); de-exhibited and marked as Mark 12.
(13) Copy of photographs of property as Ex.PW1/13 (colly); re-exhibited as PW1/3 (Colly) (14) Copy of site plan of home and agriculture as Ex.PW1/14; Re-exhibited as Ex. PW1/4 and Ex. PW1/2 respectively (15) Copy of complaint dated 04.01.2019 along with photographs of construction raised by defendant as Ex.PW1/5;
(16) Photocopy of ration card, DJB bill as Ex.PW1/16; de-exhibited as Mark 13 (17) Photocopy of Driving Licence as Ex. PW1/16; de-exhibited as Ex. PW1/4 (OSR) (17) Photocopies of photographs taken by the Local Commissioner as Ex.PW1/17 (colly);
7. Thereafter, PW-1 has been cross examined. In the cross examination of PW-1, witness states as follows:
I. His affidavit was prepared in Patiala House Court upon his CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 9 of 44 instructions and he was well aware about the contents of his affidavit.
II. In the year 2003, he shifted to Najafgarh and since then he is continuously residing at Najafgarh. (Vol.) He used to visit his village.
III. In the year 2006-2007, he along with Sunder Singh and Bijender had filed a civil suit against Sawal Singh @ Sanwaliya and his kins.
IV. He had filed a water bill of the year 2011, the said bill Ex.
PW1/D1, is in the name of his father Sh. Sher Singh.
V. His father had died in the year 1986. VI. Sunder Singh had installed a separate water connection in his name
but he does not remember the exact time when the same was installed.
VII. He had given a written request to Delhi Jal Board to get transfer of the water connection in his name. He does not remember the exact year when he had given the said written request to Delhi Jal Board. He does not remember how much time after the death of his father, he had given said written request to DJB.
VIII. There was no water connection in the said suit property till the filing of the suit.
IX. He had not taken any steps after filing the said written request to get transfer water connection in his name. X. Suggestion - He denied the suggestion that he did not get transfer water connection in his name because during the lifetime of his mother, as per the mutual settlement, the suit property had fallen in CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 10 of 44 the share of Sunder Singh and the property situated at Najafgarh had fallen in his share.
XI. He had no water supply bill from the year 2011 till filing of the suit.
XII. Suggestion - He has denied the suggestion that he has no subsequent bills because he was not residing at the suit property. XIII. Electricity meter was installed in his name. XIV. He had not filed any electricity bill after the year 2005. (Vol.) electricity meter discontinued because he had shifted to Najafgarh and there was no need of electricity in the suit property. XV. After disconnection of electricity meter, there was electricity in the suit property.
XVI. He had not paid electricity bill after disconnection of the meter because he never used electricity after disconnection of meter. XVII. After disconnection of meter, there were electric equipments existed there. But they never used those equipments at any point of time.
XVIII. Suggestion - He denied the suggestion that after disconnection of his electricity meter, the electricity of the entire house bearing no. 213 was connected from the electricity connection installed in the name of Sunder Singh because House No. 213 had fallen in the share of Sunder Singh.
XIX. Suggestion - He denied the suggestion that he had not used any electric equipment installed in his house after the year 2005 because he was neither in constructive nor in physical possession of the suit property after 2005.
CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 11 of 44 XX. He had filed complaint against the defendant no.1 in the year 2002.
However, no action was initiated because the matter was compromised with the intervention of the villagers. He had not filed any document regarding the complaint filed against defendant no.1 in the year 2002.
XXI. In the year 2007, he along with defendant no.1 called a Village Panchayat against the family of his uncle Sawal Singh. XXII. The Panchayat in the year 2007, was called with the consent of defendant no.1 with him.
XXIII. He had gone to attend the Panchayat from his residence situated at Najafgarh.
XXIV. After a few days of Panchayat, his Tau namely Rattan Singh had died. At the time of death of his Tau namely Rattan Singh, he was residing at Najafgarh along with his family. He had not attended the last rites of his Tau - Rattan Singh.
XXV. He had made the complaint against the defendants in the year 2018 for breaking of locks and he had annexed a list of articles along with those complaints which were lying at that time in the suit property. He had filed the said list in the present case. XXVI. Suggestion - He denied the suggestion that he had not disclosed any articles, as such in his complaint and he had not filed any such list in the present suit.
XXVII. His father was a govt. employee and was working with ISI now BIS.
XXVIII. After the death of his father, the pension was drawn by his mother. XXIX. At the time of death of his father, he was employed on daily basis CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 12 of 44 and was residing in his village.
XXX. The property where at present he was residing in Najafgarh was purchased in the year 2002.
XXXI. When the property at Najafgarh was purchased, his mother was alive.
XXXII. Suggestion - He denied the suggestion that the property at Najafgarh was purchased by his mother upon his request from the family funds contributed by his mother and defendant no. 1. XXXIII. Suggestion - He denied the suggestion that he had not paid a single penny to purchase the property situated at Najafgarh. XXXIV. After the purchase of the property at Najafgarh, his mother started living with him at Najafgarh.
XXXV. Suggestion - He denied the suggestion that during the lifetime of his mother, she distributed the assets between him and defendant no. 1 wherein he got the entire jewellery of his mother along with the house at Najafgarh and defendant no. 1 got the residential property situated in the village including the suit property.
XXXVI. His mother died in the year 2006. XXXVII. His mother died in the village and at that time he was residing at
Najafgarh. (Vol.) At the time of the death, his mother was there in the village with his wife.
XXXVIII. At the time of the death of his mother, the electricity connection was taken from the neighbour. Name of the neighbour was Sunder Singh i.e. defendant no. 1.
XXXIX. His brother late Bijender was married, however, he was having no issues. Wife of Bijender had left him after one/two months of the CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 13 of 44 marriage.
XL. Suggestion - He denied the suggestion that Bijender used to reside with his family (plaintiff's family) as well as with the family of defendant no. 1.
XLI. Bijender had died in the year 2018. XLII. At the time of death, Bijender was residing with him at Najafgarh. XLIII. Bijender had not executed any Will and had died intestate. XLIV. Suggestion - He denied the suggestion that after the death of
Bijender, with intention to grab the entire share of the Bijender, he had filed the false and frivolous civil and criminal cases against defendant no.1 and his family members.
XLV. Suggestion - He denied the suggestion that after demise of Bijender, he tried to dispose of his agricultural land with the assistance of Banke Pehelwan.
XLVI. He has 2.75 Bigha agricultural land in my name. No cultivation is being done at the moment.
XLVII. Tubewell earlier was in the name of his Tauji, Chachaji and my father. Thereafter Tubewell came to us i.e. in his name and his two brothers Defendant no. 1 Sunder Singh and Bijender. XLVIII. The electricity bill was paid by him till electricity meter was stolen.
XLIX. He does not remember as to when electricity meter was stolen. It was around 2007/2008 when the same was stolen.
L. Suggestion - He denied the suggestion that the meter was disconnected for non payment. (Vol.) I had informed DESU office about meter having been stolen.
CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 14 of 44 LI. He has not filed any document of information to DESU on record. LII. He cannot bring the same but it must be in the DESU office. LIII. He does not know whether meter was reconnected in the tubewell. LIV. He does not know that Sunder Singh had paid all the dues of the previous bills and the meter was installed in his name. LV. He does not know as to when the meter was installed or whether it was installed in the month of November, 2007.
LVI. He does not know that meter was installed on the day when my Chacha Rattan Singh was murdered.
LVII. Question - I put it to you that in the civil suit filed by me along with Sunder Singh against the Sawal Singh and his kins regarding the property of late RattanSingh, you along with Sunder Singh had pleaded that the son of Sunder Singh namely Azad had seen the incident of poisoning to Rattan Singh while he was going to his fields to install the tubewell connection. What you have to say? Ans.: I do not remember.
LVIII. As of now he has no electricity connection for tubewell in his name.
LIX. He does not remember since when the said position is continuing as he have already stated that he do not remember date of theft of electricity meter.
LX. Suggestion - He denied the suggestion that since the year 2004 after family settlement, he was living separately at Najafgarh and he had no concern with suit property i.e. House No.213, Village Malik Pur.
LXI. Question - Have you any identity documents issued from the CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 15 of 44 house at Malikpur?
Ans. I have following documents in my name i.e. Voter ID card, Aadhar card, PAN card, driving licence, RC and the same are Ex.PW1/D2 (colly).
LXII. He is a voter of Malikpur and cast his vote at village Malikpur. LXIII. Suggestion - He denied the suggestion that he had placed the documents Ex. PW1/D2 (colly) with the procured address of Malikpur prepared after the year 2017 with the sole intention to file the false suit claiming his possession upon the suit property against the defendant.
LXIV. Suggestion - He denied the suggestion that he was not in possession of the suit property since the year 2004-2005. LXV. Suggestion - He denied the suggestion that he had filed the false suit and procured documents with the sole intention to raise the false claim upon the suit property and to grab the property of the defendants.
LXVI. Suggestion - He has denied the suggestion that he has no legal right upon the suit property.
LXVII. Suggestion - He has denied the suggestion that defendants are residing in the suit property since the year 2005. LXVIII. Suggestion - He has denied the suggestion that no such incident of the year 2018 as stated by him in his plaint was ever occurred. LXIX. Suggestion - He has denied the suggestion that he had narrated a false story of the year 2018 to show his false claim upon the suit property.
LXX. Suggestion - He has denied the suggestion that intentionally to CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 16 of 44 grab the property of the defendant, he had filing the present suit on the basis of false and incorrect facts.
LXXI. Suggestion - He has denied the suggestion that he was deposing falsely.
8. During the examination in chief, DW1 Sh. Azad Singh Dagar had deposed in line with the pleadings in the joint written statement of this suit and tendered his evidence affidavit as Ex DW1/A.
9. Thereafter, DW-1 was cross examined. In the cross examination, DW-1 stated the following:
I. His grandfather had died might be in the year 1991-1992. II. He does not know whether any family settlement had taken place in the year 1989 as in the year 1989, he was 8 year old. III. Till the year 2001-2002, the plaintiff and defendant no.1 were residing in their respective house no.213 separately. IV. He had knowledge about the house of the plaintiff at Roshanpura, Najafgarh.
V. House at Roshanpura was purchased in the year 2003-2004 by the plaintiff.
VI. He has the knowledge about the purchase of the plot of plaintiff. VII. As per settlement, house at Najafgarh was supposed to be in the name of plaintiff, however, he has purchased the house in the name of his wife.
VIII. Suggestion - He denied the suggestion that the house at Roshanpura, Najafgarh was purchased from the own income of the CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 17 of 44 plaintiff and no other family member had contributed. IX. Suggestion - He denied the suggestion that the plaintiff is residing separately since 1989 and from his own income he has purchased the house at Roshanpura, Najafgarh in the name of his wife. X. Suggestion - He denied the suggestion that the defendants had trespassed in the suit property in June 2018 by breaking the locks. XI. Suggestion - He denied the suggestion that the defendants had misappropriated the belongings of the plaintiff. XII. Suggestion - He denied the suggestion that the defendants have nothing to do with the suit property.
XIII. Suggestion - He denied the suggestion that he has filed a false affidavit at the instance of the defendant. XIV. Suggestion - He denied the suggestion that he was deposing falsely.
ARGUMENTS Arguments on behalf of the plaintiff
10. Sh. Rajesh Kaushik, the Ld. Counsel for the plaintiff, presented the plaintiff's case before the court. His arguments primarily focused on establishing the plaintiff's legitimate possession of the suit property and subsequent unlawful dispossession. The learned counsel placed significant emphasis on the plaintiff's testimony, supplemented by corroborative evidence through documents and photographs that were exhibited/marked during the trial. A key element of his argument was the reliance on the Local Commissioner (LC) Report, positioning the LC as a star witness in the case.
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11. The core of Sh. Kaushik's argument rested on the claim that post the 1989 partition or settlement, the suit properties were rightfully allocated to the plaintiff. He elaborated that although the plaintiff subsequently moved with his family to Najafgarh, his possession of the suit properties remained unaffected. The learned counsel further argued that the absence of regular utility usage at Suit Property-I was a natural outcome of the plaintiff residing elsewhere, and should not be misconstrued as evidence of non-possession.
12. Moreover, Sh. Kaushik drew parallels with a judgment by the Hon'ble Delhi High Court in Balwinder Singh v. Kamal Kishore C.R.P 86/2021 & CM APPL 42968/2021, asserting that the circumstances in that case closely mirror those in the present suit. This comparison was intended to bolster the plaintiff's claim and establish a precedent supportive of his position.
Arguments on behalf of the defendants
13. Sh. Praveen Singh, the learned counsel representing the defendants, presented their defense. Central to the defendants' argument is the assertion that Suit Property-I became part of Defendant No. 1's share when the mother of both the plaintiff and Defendant No. 1 arranged for the plaintiff to have a residential house in Najafgarh. It was also contended that Defendant No. 1 contributed financially to the purchase of this Najafgarh house for the plaintiff. On the merits, the learned counsel for the defendant maintained that the plaintiff has not convincingly CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 19 of 44 established either the specific date of dispossession or the fact that he was in actual possession of the suit properties.
14. A key point raised by Sh. Singh was the lack of independent witness testimony corroborating the plaintiff's claims of possession. The defense argued that the plaintiff's sole testimony falls short in proving possession and subsequent dispossession. Furthermore, the counsel highlighted that the incidents in question primarily involved the plaintiff's wife, who did not testify in court. Her absence was emphasized, with the defense characterizing the plaintiff's statements as 'hearsay evidence' and therefore not admissible for the Court's consideration. The utility bills and other documents presented by the plaintiff were deemed insufficient in substantiating his claims.
15. Furthermore, Sh. Singh argued that the facts in the case of Balwinder Singh (Supra) are not analogous to the present suit. He pointed out that in Balwinder Singh, the plaintiff's testimony was corroborated by independent witnesses, a critical element that is notably absent in the current case.
16. Regarding Suit Property-II, the defense underscored that the suit filed under Section 6 of the Specific Relief Act is time-barred due to limitation constraints. Given that the alleged dispossession occurred in March 2018 and the suit was not filed until December 13, 2018, the defense posited that this delay breaches the statutory six-month limitation period, rendering the suit non-maintainable.
CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 20 of 44 ISSUE WISE ANALYSIS AND FINDINGS Issue No. 1 - Whether the plaintiff is entitled for a decree of possession of the suit property as prayed for? OPP
17. The plaintiff is seeking the relief of possession on the basis of Section 6 of the Specific Relief Act, 1963 (hereinafter SRA). Section 6 SRA is applicable only if the plaintiff proves the following:
a. That he was in possession of the immovable property in dispute b. That he had been dispossessed without his consent and otherwise than in due course of law c. That the dispossession took place within 6 months from the date of filing the suit.
18. As already discussed, there are two suit properties in the present case which are as follows:
a. House No. 213, Pole No. 64, Village Mali Pur, Najafgarh, New Delhi consisting of 5 Room, 1 Kitchen, Verandah - for the convenience, hereinafter, this property will be stated as Suit Property-I b. Tube Well situated in agricultural land in Kh. 41/22, Village Malik Pur, Najafgarh, New Delhi - hereinafter Suit Property-II.
19. First, I will adjudicate the issue no.1 in regard to Suit Property-I Possession of the Suit Property-I
20. First, I will discuss whether the plaintiff was in possession of CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 21 of 44 the suit property-I. In establishing his claim to possession of the suit property-I, the plaintiff has relied on the following:
a. Plaintiff's deposition as PW-1, his Evidence affidavit - Ex. PW1/A. b. Copies of electricity and water bills for the years 2003-2004 and 2006-2007 - Mark 1 and Mark 2 respectively. c. Copies of correspondence from the Delhi Electricity Board, dated 07.04.1998 and 15.02.2003. - Mark 3 d. A copy of the complaint to SHO Jaffarpur filed on 13.06.2018, along with its registered postal receipt - Mark 8 e. A copy of the complaint sent to the DCP on 15.06.2018, identified as Mark 7.
f. Photographic evidence of the property, referred to as Ex. PW1/3 (Colly).
g. Photocopies of personal identification documents, including the ration card, driving license, voter ID, motorcycle registration certificate, and Aadhar Card. - PW1/D2 (Colly) OSR h. Copy of settlement deed dated 09.07.1989 - Mark 12 i. LC Report
21. The plaintiff, Sh. Suresh Chander, testified as PW-1 regarding his possession of the disputed property. He stated that following his father's death in 1986, a partition of the properties occurred in 1989, resulting in his exclusive possession of the Suit Property-I from that year. PW-1 also mentioned in his evidence affidavit (Ex. PW1/A) that despite relocating with his family to Najafgarh in 2002, he CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 22 of 44 maintained exclusive possession of the Suit Property-I, regularly visiting it for maintenance.
22. The plaintiff, being a party directly interested in the outcome of the case, naturally has a vested interest in the Court finding in his favor. This interest does not automatically discredit his testimony, but it does necessitate a higher degree of scrutiny and the need for corroborative evidence.
23. The task at hand is to ascertain if there is adequate corroboration of the plaintiff's deposition, provided as PW-1, to conclude that he was indeed in possession of the Suit Property-I. The plaintiff, having not introduced any corroborative witness testimony beyond his own, has placed his reliance predominantly on documentary evidence to substantiate his claim of possession. I will now scrutinize these documents, evaluating their evidential weight, to determine whether they offer sufficient corroboration to the plaintiff's testimony, thereby meeting the necessary burden of proof for establishing possession.
Documentary Evidences Electricity Bills
24. The plaintiff relied on the electricity Bills of September 2003, July 2004, September 2004, November 2004, March 2005, May 2005. Each of these bills is issued in the name of the plaintiff, Suresh Chander, and mentions the address as House No. 213, Pole No. 64, Malik Pur. These bills are marked as Mark-1 (Colly) CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 23 of 44
25. Utility bills are often used in legal contexts as they are typically issued to the occupant or owner of a property and can serve as an indicator of residence or possession over a property.
26. The primary concern with these documents in the present suit is their temporal relevance. These bills are from the time period 2003-2005. The bills presented pertain to periods significantly prior to the year 2018, the year in which the alleged dispossession occurred. As such, while they may establish a link to the Suit Property-I during 2003-2005, they do not directly attest to the possession or control of the Suit Property-I in or around June 2018. Therefore, the persuasive power of these documents is weakened. Contemporary documentation would have been more compelling in establishing the plaintiff's claim.
27. Upon careful evaluation of the aforementioned, the Court finds that while the electricity bills do establish a historical connection to the Suit Property-I, they are insufficient to demonstrate possession of the Suit Property-I in 2018. The gap of over a decade between the dates of these bills and the incident in question leaves a significant void in the plaintiff's claim of continuous possession. Consequently, these documents alone do not meet the burden of proof required to substantiate the plaintiff's claims of possession. The Court, therefore, finds that the evidence presented through the Electricity Bills [Mark 1 (Colly)] is not adequate to establish the plaintiff's possession of the Suit Property-I up to the time of the alleged dispossession in June 2018.
CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 24 of 44 Water Bills
28. The plaintiff also relied on the bills of Delhi Jal Board of 31.05.2005, 1.12.2005, 03.10.2007. Each of these bills is issued in the name of Sh. Sher Singh, deceased father of the plaintiff and defendant no. 1, and mentions the address as 213, Malik Pur. These bills are marked as Mark-2 (Colly). It is important to note here that one water bill was also put to PW-1 in his cross, which is Exhibited as Ex. PW1/D1. The said water bill is of 12.01.2011 and it is also in the name of Sh. Sher Singh with the same address i.e. 213, Malik Pur.
29. Similar to the electricity bills, the water bills also do not pertain to the relevant time frame. Consequently, applying the same rationale as with the electricity bills, I conclude that these water bills do not adequately fulfill the plaintiff's burden of proving possession in June 2018. Furthermore, these water bills are issued in the name of the plaintiff's and Defendant No. 1's father, Sh. Sher Singh. During the cross-examination on October 17, 2023, the plaintiff claimed that he had requested the Delhi Jal Board to transfer the water connection from his father's name to his own. However, the responses to the follow-up questions posed to the plaintiff in the cross examination are not convincing. He was unable to provide specific details regarding the timing of the application for the change of connection to the Delhi Jal Board. His responses are as follows:
"My father had died in the year 1986. Sunder Singh had CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 25 of 44 installed a separate water connection in his name but I do not remember the exact time when the same installed. I had given a written request to Delhi Jal Board to get transfer water connection in my name. I do not remember the exact year when I had given the said written request to Delhi Jal Board. I do not remember as to after how much time after death of my father, I had given the said written request to DJB. It is correct that there was no water connection in the said suit property till the filing of the suit."
Family Settlement dated 09.07.1989
30. The family settlement agreement dated July 9, 1989 (Mark
12), outlines the division of properties among the three brothers: the plaintiff, Defendant No. 1, and Bijender. This agreement, bearing signatures of all three brothers along with members of the Gram Sabha, addresses the distribution of the family assets. However, as per established legal precedent, the issue of title does not bear relevance in a suit filed under Section 6 of the Specific Relief Act, as supported by the rulings in Lallu Yeshwant Singh v. Rao Jagdish Singh and Others AIR 1968 SC 620, Mohd. Mehtab Khan and Others v. Khushnuma Ibrahim Khan and Others AIR 2013 SC 1099, and ITC Limited v. Adarsh Cooperative Housing Society Limited 2013 (10) SCC 169. Therefore, in the context of determining possession of the suit property-I, this family settlement document does not hold significant importance for reaching a conclusion.
CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 26 of 44 Photographs
31. The plaintiff relies upon the photographs of the suit property which are exhibited as Ex. PW1/3 (Colly) to support his claim of possession of the suit property.
32. Photographs, as a form of evidence, can be compelling in demonstrating the state or use of a property at a particular time. However, their utility in legal proceedings is heavily dependent on the ability to accurately date them. Without temporal markers, it becomes challenging to establish when the photographs were taken and, by extension, whether they are relevant to the period under consideration (in this case, the time leading up to June 2018).
33. The photographs need to be demonstrably relevant to the period during which the plaintiff claims to have been in possession. Without timestamps or other chronological indicators, there is a substantial ambiguity regarding their relevance to the critical timeframe of the alleged dispossession.
34. Photographs without clear temporal indicators are susceptible to misinterpretation or misrepresentation. They could potentially depict the property at a time not relevant to the claim, thereby leading to erroneous conclusions.
35. Moreover, the plaintiff did not provide any deposition as to CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 27 of 44 who took the photographs, nor was the photographer produced as a witness. This omission raises questions about the authenticity and context of the photographs. The photographer's testimony could have provided crucial information about the circumstances under which the photographs were taken, including the time frame, thereby lending credibility to the evidence.
36. Considering the absence of temporal markers and the lack of testimony from the photographer or any deposition from the plaintiff regarding who captured these images, the Court finds that the photographic evidence presented falls short of the evidentiary standard required. These limitations prevent the photographs from conclusively proving possession of the Suit Property-I during the crucial period in question. Thus, these photographs, in their current form and without corroborative support, are insufficient to substantiate the plaintiff's claim of possession up to the time of the alleged dispossession in June 2018. Consequently, the Court considers this evidence to be inadequate in establishing the plaintiff's claim of possession during the critical period.
Identification Documents
37. The plaintiff has presented a series of personal identification documents to support his claim of possession of the Suit Property-I. This set includes a Ration Card [Mark 13 (Colly)], PAN Card, Driving license, Vehicle Registration Certificate (RC), Voter Card and Aadhar Card, all collectively exhibited as Ex. PW1/D2 (Colly). These documents are typically used to establish identity and residence, but their CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 28 of 44 effectiveness in proving possession, particularly in a legal context, warrants detailed examination. All the documents are dealt in detail as follows:
a. Ration Card - The address mentioned on the Ration Card is "Village and Post Office, Malikpur' and it does not specifically mention the address of the Suit Property-I. Moreover, the 'date of issue' mentioned on the Ration Card is 29.04.2005 which is much prior to the relevant date of June 2018 for which the possession and dispossession is to be proved.
b. PAN Card - It does not mention any address. Therefore, it will not add any value to the claim of the possession of the Suit Property-I. c. Driving Licence - There are two driving licenses (DL) on record.
One is Ex. PW1/4 and the other one is part of set of documents Ex. PW1/D2. Ex. PW1/4 was brought on record by the plaintiff in his examination in chief and Ex. PW1/D2 was brought on record during the cross examination of the plaintiff when he was asked "Have you any identity document issued from the house at Malikpur?". Both the DL mentions the address of the plaintiff as 'Village Malikpur, PO Ujwa, New Delhi'. Ex. PW1/4 was issued on 02.09.1996 where Ex. PW1/D2 was issued on 16.10.2019. Like, Ration Card, DLs too did not mention the address of the Suit Property-I. d. Vehicle Registration Certificate - This document pertains to the registration of a two-wheeler. In the registration certificate, the address of the plaintiff corresponds to that of the Suit Property-I. However, the date of registration is June 30, 2017, significantly CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 29 of 44 earlier than the period for which the plaintiff is required to establish possession.
e. Aadhar Card - The Aadhar Card lists the address of the Suit Property-I as the plaintiff's address. However, it lacks a specified issuance date. This absence of a date makes it challenging to ascertain with certainty the plaintiff's possession of the Suit Property during the relevant period. Additionally, there is no substantial verification of the address provided at the time the Aadhar Card is issued.
f. Voter Card - The Voter Card presented has two notable shortcomings. Firstly, the address recorded on it is 'House No. 330, Bhajan Thola, Village Malik Pur, Delhi', which differs from the address of the Suit Property-I. Secondly, the issuance date of the Voter Card, being January 14, 2020, falls after the alleged dispossession event of June 2018.
Complaints
38. The learned counsel for the plaintiff placed reliance on complaints submitted by the plaintiff to the SHO of Jaffarpur and the DCP of Dwarka, dated June 13, 2018, and June 15, 2018, respectively. The said complaints are respectively marked as Mark 8 and Mark 7. However, it is important to note that lodging complaints with authorities, in itself, does not suffice as conclusive proof of possession or dispossession. Furthermore, I have thoroughly examined these complaints in detail under the section titled 'Dispossession from Suit Property-I within 6 months prior to the filing of the suit'.
CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 30 of 44 LC Report
39. In an order dated September 11, 2020, my learned predecessor appointed Sh. Lovekesh Aggarwal as the Local Commissioner (LC) under Order XXVI Rule 9 of the CPC. This appointment followed an earlier order, dated December 24, 2018, which prohibited both parties in the current suit from undertaking any construction on the Suit Properties. Subsequently, the plaintiff filed an application under Order XXXIX Rule 2A, alleging that the defendants had engaged in construction activities on the Suit Properties, altering its nature. To verify these allegations, the LC was tasked to inspect the Suit properties and report on its current status.
40. Sh. Rajesh Kaushik, the learned counsel for the plaintiff, contends that the LC is the star witness in this matter and the LC's report is crucial, asserting that it confirms the plaintiff's possession of the Suit Property-I. However, I find myself in disagreement with the learned counsel's interpretation of the LC's report, which is flawed in several aspects. Firstly, the LC overstepped his mandated role by making determinations about the ownership of the house, which was beyond the scope of his appointment. His role was specifically to report on the property's status to assist the Court in adjudication of the plaintiff's application under Order XXXIX Rule 2A. Judicial prudence dictates that any observations made by the LC beyond his appointed task are not to be considered by this Court. Furthermore, the LC's conclusions about the property's ownership are inadequately substantiated. His report merely CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 31 of 44 mentions that, based on interactions with neighbors, he gathered the property belongs to the plaintiff, without providing detailed information about these interactions or the specific individuals consulted.
Hon'ble Delhi High Court's judgment in 'Balwinder Singh v. Kamal Kishore C.R.P 86/2021 & CM APPL 42968/2021'
41. The learned counsel for the plaintiff has referenced the judgment of the Hon'ble Delhi High Court in Balwinder Singh v. Kamal Kishore C.R.P 86/2021 & CM APPL 42968/2021, contending that the circumstances of the present case closely mirror those in the cited precedent. The argument hinges on the similarity that, as in the present case, the plaintiff in the referred judgment was not residing at the disputed address but was still deemed to be in possession of the property. The Ld. Counsel for the plaintiff claims that the Hon'ble Delhi High Court, in its judgment, established that the absence of electricity and water connections at the suit property should not be construed as evidence against the claim of possession. He adds that non-use of utilities does not equate to lack of possession, as there can be valid reasons for a property owner to reside at a different location while still maintaining possession of their property.
42. Having thoroughly reviewed the aforementioned judgment, I find that the facts of the current case differ from those in Balwinder Singh (Supra). In the cited judgment, the claim of possession was substantiated not only by past utility bills but was also compellingly corroborated by the testimonies of two independent witnesses. These CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 32 of 44 witnesses convincingly affirmed the plaintiff's possession and subsequent dispossession of the suit property. Additionally, the photographer who took relevant photographs was also produced as a witness, thereby reinforcing the plaintiff's claim of possession.
43. In contrast, the current case lacks such corroborative evidence. The plaintiff here has solely relied on his testimony, without the support of any independent witness. This absence of corroboration significantly weakens the claim of possession when contrasted with the robust evidential framework in Balwinder Singh (Supra). Furthermore, the issues pertaining to the documentary evidence presented in this case have been exhaustively analyzed and will be conclusively addressed in the subsequent paragraphs of this judgment. Therefore, the reliance on Balwinder Singh (Supra) as a parallel to the present case is found to be inapplicable due to these critical differences in evidentiary support and corroboration.
Final conclusion on the issue of possession of Suit Property-I:
44. In reaching a definitive conclusion regarding the actual possession of the Suit Property-I, it was incumbent upon the plaintiff to present not only documentary evidence but also independent witness testimony. In my assessment, the documents relied upon by the plaintiff do not unequivocally establish his actual possession at the time of the alleged dispossession. To substantiate such a claim, a combination of documentary and oral evidence is essential, particularly in cases where there is a contention over possession at a crucial juncture and an assertion CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 33 of 44 by one party that possession was peacefully transferred to the other after the family settlement.
45. Furthermore, the absence of independent witness testimony significantly weakens the plaintiff's position. Independent witnesses, unaffiliated with either party, could have provided unbiased accounts, thereby lending greater credibility to the plaintiff's claim of possession. The reliance solely on documentary evidence, which in itself lacks conclusive proof of possession during the relevant period, is insufficient in a dispute where the veracity of possession is contested. The plaintiff's failure to corroborate his claims with oral testimony from disinterested parties leaves a gap in the evidentiary trail.
46. Moreover, the nature and relevance of the presented documents - some with discrepancies in addresses and others with dates far preceding the relevant timeframe - further dilute their probative value. In disputes of possession, especially where peaceful transfer is claimed by the opposite parties, the court expects a robust and cohesive presentation of evidence, seamlessly integrating both documentary and oral elements to paint a comprehensive picture of possession. In this instance, the plaintiff's evidence fails to meet this threshold, leading to an inability to conclusively prove possession of the Suit Property-I at the time of alleged dispossession. Therefore, the plaintiff failed to prove his possession of the Suit Property-I at the time of the alleged dispossession.
47. In drawing this discussion to a close, it is pertinent to note CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 34 of 44 that the burden of proof regarding this issue rested squarely on the shoulders of the plaintiffs. It was incumbent upon them to establish their possession of, and subsequent dispossession from, the suit property. Consequently, even if one were to momentarily concede the presence of flaws in the defendant's title or defense, such considerations would not advantage the plaintiffs. Their case must be independently substantiated on its own merits, as they are required to establish their claims based on the strength of their evidence, not on the weaknesses in the defendant's position.
Dispossession from the Suit Property-I within 6 months prior to filing of the suit
48. Having previously determined that the plaintiff has not successfully demonstrated possession at the time of the alleged dispossession, as outlined in the preceding paragraphs, the issue of dispossession consequently becomes moot. Dispossession presupposes the existence of possession, and without establishing the latter, the former cannot be addressed. However, there remains one additional aspect of this case that necessitates further analysis and a definitive finding, which will be elaborated upon in the subsequent paragraphs.
49. In a suit filed under Section 6 of the Specific Relief Act (SRA) for the recovery of possession, it is imperative for the plaintiff to demonstrate that they held possession of the suit property and were subsequently and unjustly dispossessed by the defendant within a six-month period preceding the filing of the suit. Given the summary CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 35 of 44 nature of a Section 6 proceeding, the six-month timeframe preceding the suit's initiation is of critical importance.
50. Moreover, the relevant date in a suit under Section 6 is the date of dispossession and not the date of knowledge of dispossession. It has been held by the Hon'ble Rajasthan High Court in Ashok Kumar v. Surindra Rakyan AIR 2007 (NOC) 932 (Raj.) that the limitation period of 6 months in a suit under Section 6, SRA is to be computed from the date of actual dispossession and not from the date of knowledge of dispossession. The same view has been recently held by the Judgment delivered on 12.12.2023 by the Hon'ble Delhi High Court in Indraprastha ICE & Cold Storage (P) Ltd. v. Cardiff Associates (P) Ltd., 2023 SCC OnLine Del 8033. Key excerpts from the judgment are provided below:
"77. Further, the petitioner was unable to specify a date on which the alleged dispossession had occurred which is a necessary ingredient for a suit under Section 6 of the Specific Relief Act, 1963, therefore, the entire suit under Section 6 the Specific Relief Act, 1963 stands to be non-maintainable. Since, the suit under Section 6 of the Specific Relief Act, 1963 is non-maintainable, therefore the petitioner cannot seek shelter under Article 64 of the Limitation Act, 1963 as well, since the limitation period begins from the date of dispossession and as the very aspect of dispossession has not been established on behalf of the petitioner, there is no remedy available to CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 36 of 44 the petitioner under either of the provisions. Moreover, the limitation period to file any suit under Section 6 of the Specific Relief Act, 1963 must be computed from the date of actual dispossession and not from the date of knowledge of dispossession."
51. The plaintiff has pleaded in his plaint at Para no. 12 and 13:
"12. That on 13.06.2018 again, the plaintiff's wife came at her house at VPO Malikpur, Najafgarh, New Delhi and she found that the main gate of her house i.e. suit property has been broken and one motor cycle/bike no. DL9S-AH-3055 has been parked inside her house without the permission and knowledge.
13. That immediately, she called the PCR twice at 15:56 and 15:57 hours respectively, but on one came to her rescue. The wife of the plaintiff made a written complaint to SHO PS Jaffarpur Kalan, New Delhi. To the utter shock to the plaintiff and his family, no concrete step has been taken up by the police regarding the aforesaid complaint against the defendants till yet as the Defendant No. 3 is serving in Delhi Police and has hold over the local police."
52. Whereas, at Para 16, the plaintiff has averred the following:
"16. That the cause of action for filing the present suit CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 37 of 44 arose on 13.06.2018 when the defendants had taken forcible, illegal possession of the suit property. .........."
53. Thus, the exact date of dispossession is not clearly stated in the plaintiff's plaint. There are inconsistencies in the plaintiff's averments in the plaint. In paragraph 12, it's mentioned that on 13.06.2018, the plaintiff's wife found that the property had been taken over, indicating this was the date she became aware of the situation i.e. date of knowledge of dispossession. The phrase "She founds" in para 12 of the plaint, suggests the moment of realization/knowledge. However, paragraph 16, which details the cause of action, marks 13.06.2018 as the date the property was forcibly taken.
54. To determine the actual date of dispossession, I will now examine the plaintiff's evidence. The plaintiff has deposed as PW-1. His evidence affidavit is Ex. PW1/A. In paragraphs 13 and 17 of this affidavit, the contents of paragraphs 12 and 16 from the plaint are exactly reproduced and replicated and reiterated.
55. Whereas, the plaintiff at Para 15 of the evidence affidavit (PW1/A), stated that on 15.06.2018, a complaint was filed in the office of the DCP Dwarka, Sector 19 against the defendants. The said complaint to the DCP dated 13.06 2018 is Marked as Mark 7. At para 3 of the said complaint following is stated:
"That on 13.06.2018, the complaint has reached in the CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 38 of 44 village to see the house and was surprised to see that the door of the house of the complainant was broken......"
56. Another document Mark 8, is a complaint, dated 13.06.2018, by the wife of the plaintiff to the SHO, PS Jaffarpur, New Delhi 73. In the said complaint, the wife of the plaintiff has stated the following:
"निवेदन इस प्रकार है कि मैं सत्यवती व/० सरु े श चंद्र, मलिकपरु गाँव में अपना मकान दे खने गई थी। जाकर दे खा हमारे मकान का मेन गेट तोड़ रखा था और मोटर साइकिल खड़ी कर रखी थी। सन् ु दर सिंह और उसके परिवार ने मिलकर तोड़ दिया। ........."
57. The submissions in the plaint and the affidavit of evidence by PW-1 are ambiguous about the precise date of dispossession. In contrast, the plaintiff's wife has explicitly stated in her complaints to the DCP, Dwarka (on 15.06.2018) and SHO, Jaffarpur (on 13.06.2018), that it was on the 13th of June, 2018, when she visited the Suit Property-I and then realized that the main door has been broken. Consequently, even if I accept the plaintiff's account of the events on 13.06.2018 as accurate, that date would, at most, represent the moment they became aware of the dispossession, not the actual date on which the dispossession took place.
58. There is another lacuna, the plaintiff as PW-1 has deposed that the incident dated 13.06.2018 was witnessed by his CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 39 of 44 wife. The wife of the plaintiff did not enter the witness box. Therefore, the statement of the wife of the plaintiff regarding the incidents of 13.06.2018 are hearsay evidence and the same can not be considered by this Court.
59. Hence, the petitioner's inability to precisely identify the date of the alleged dispossession, a crucial element in a suit filed under Section 6 of the Specific Relief Act, 1963, renders the suit non-maintainable. The specificity of the dispossession date is fundamental to the viability of such a suit. As this essential detail is lacking, it consequently leads to the suit under Section 6 of the Specific Relief Act, 1963 being considered non-maintainable.
60. Now, coming to the issue in relation to Suit Property-II. In the plaint, following has been pleaded:
"9. That in the month of March 2018; the plaintiff's wife along with her son visited Village Malikpur for the aforesaid reason. She was astonished to found out that on her agricultural land, all the trees had been cut down by the defendants and a new room was being built at the place of the tube well."
61. The plaintiff, PW-1, has deposed on the similar lines in his evidence affidavit PW1/A. The relevant portion is as follows:
CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 40 of 44 "10. That in the month of the March 2018 the plaintiff wife along with her son visited village Malikpur for the aforesaid reason. She was astonished to find out that on her agricultural land all the tree had been cut down by the defendant and a new room was being built at the place of the tube well.".
62. The details outlined in the plaint and the evidence affidavit unequivocally indicate that the plaintiff contends their possession of Suit Property-II was allegedly usurped in March 2018. However, the present suit was instituted on December 13, 2018. This interval exceeds the statutory limitation period of six months. Consequently, the suit is evidently barred by limitation.
63. In this context, even if the Court were to accept all the plaintiff's arguments and contentions as valid, the suit still faces an insurmountable hurdle due to its non-compliance with the limitation period. Consequently, this delay in filing renders the suit for the possession of Suit Property-II non-maintainable, irrespective of the merits of the plaintiff's claims. The adherence to statutory timelines is not merely procedural but a substantive requirement that determines the legal feasibility of a suit under Section 6 of the Specific Relief Act, 1963.
64. In view of the above discussion and findings, issue no. 1 is decided in favour of the defendant and against the plaintiff.
CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 41 of 44 Issue No. 2, 4 and 5 Whether the plaintiff is entitled for a decree of permanent injunction as prayed? OPP Whether the plaintiff has no locus standi to file the present suit? OPD Whether there is no cause of action in favour of plaintiff and against the defendant? OPD
65. Issues No. 2, 4, and 5 have been collectively addressed as they are interconnected and their analysis is interdependent. In view of finding on issue No. 1, issues nos. 2, 4 and 5 are also decided against the plaintiff and in favour of the defendant.
Issue No. 3Whether the plaintiff has not come to the Court with clean hands and has suppressed material facts? OPD
66. Addressing this particular issue, it is pertinent to note that the relevant paragraph of the defendant's written statement, which presumably led to the framing of this issue, lacks detailed exposition on the plaintiff's alleged failure to approach the court with clean hands and the supposed concealment of material facts. Furthermore, during his deposition, the defendant did not present any evidence to substantiate these claims.
67. Consequently, it is apparent that the defendant has not fulfilled the burden of proof required for this issue. As such, the CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 42 of 44 resolution of this issue falls against the defendant and in favor of the plaintiff, given the insufficiency of evidence to support the defendant's assertions.
Issue No. 6Whether the suit is not properly valued for the purpose of Court fees and jurisdiction? OPD
68. With regard to this issue, it may be noted that Para of the written statement on the basis of which this issue must have been framed, does not elaborate as to how the suit is undervalued.
69. In the suit, plaintiff has sought the relief of possession of the suit properties, shown in Red color in the site plans. For this purpose, plaintiff has valued the suit for the purpose of court fees and jurisdiction @ Rs.10,00,000/. The plaintiff is also seeking the relief of injunction for which the plaintiff has valued the suit @ 130/-. Therefore, the value of the property at the time of institution of the suit can also not be ascertained by the court in absence of specific evidence.
70. In view of the above observations, it can be concluded that the defendant could not discharge onus of proof of this issue. Hence, the issue is decided against the defendant and in favour of the plaintiff.
CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 43 of 44 RELIEF
71. In view of above, plaintiff is held not entitled for any relief. Consequently, suit of the plaintiff stands disposed of as dismissed with no order as to costs.
72. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Announced in the open Court on 23.01.2024.
(Sumit Dalal) Additional District Judge-04 South West District/Dwarka Courts New Delhi.
CS No. 1247/2018 Suresh chander Vs. Sunder Singh & Ors Page no. 44 of 44