Delhi District Court
Sehmood Ali vs Mukhtiar Ali on 24 August, 2011
1
IN THE COURT OF SH RAVINDRA KUMAR PANDEY
CIVIL JUDGE, DISTRICT CENTRAL04: DELHI
Suit No. 184/2005
IN THE MATTER OF
SEHMOOD ALI
S/o Musadi R/o Jhuggi W 53/28,
Sonia Gandhi Camp,
Naraina, Delhi. ....................... PLAINTIFF.
Versus
1. Mukhtiar Ali
S/o Sh. Abdul Majid Hashmi
R/o Village Nagman Pur, P.O. Pali,
Distt. Bhadoi, U.P.
2. Muslim Ali
S/o Mohd Sidiq Qureshi
R/o Jhuggi No. W53/324, Sonia Gandhi Camp,
Naraina, Delhi.
3. Sarif S/o Safi Mohd
R/o Jhuggi No. W53/57, Sonia Gandhi Camp,
Naraina, Delhi.
4. Rabul Kalam
S/o Phool Mohd
Suit No. 184/05 1 of 16
2
R/o Jhuggi No. W53/373, Sonia Gandhi Camp,
Naraina, Delhi.
5. Nasim Khan S/o Mohd. Mukhtar
R/o Jhuggi No. W53/365,Sonia Gandhi Camp,
Naraina, Delhi.
6. Sant Lal S/o Sh. Pardeshi Babu
R/o Jhuggi No. W53/298, Sonia Gandhi Camp,
Naraina, Delhi.
7. Amsher Ali S/o Sh. Mohd. Mistri,
R/o Jhuggi No. 53/129, Sonia Gandhi Camp,
Naraina, Delhi. .................DEFENDENTS.
Date of institution: 07.07.2005
Date on which judgment was reserved: 05.08.2011
Date of pronouncement of the judgment: 24.08.2011
SUIT FOR POSSESSION
JUDGEMENT
1. This is suit for possession filed by the plaintiff against the defendants.
2. As per the case of the plaintiff, plaintiff is a rightful owner of Jhuggi No W53/324, situated at Sonia Gandhi Camp, Naraina, Delhi measuring about '8 x 9' sq. feets. It is averred by plaintiff that this Jhuggi was Suit No. 184/05 2 of 16 3 allotted to Sh. Mohd. Mustkeen one of the relative of plaintiff and in the year 1990, the said Mohd. Mustkeen Ali sold the Jhuggi to Sh. Mehmood Ali who is the real brother of plaintiff. On 12.07.1994, Sh. Mehmood Ali sold/transfer the malba of Jhuggi to the plaintiff and went to Saudi Arab. He executed the stamp paper in the favour of the plaintiff and deposited his ration in the ration card office and thereafter, the ration card department issued a new ration card in the name of plaintiff having address of Jhuggi. It is averred on behalf of plaintiff that on 02.10.2002, plaintiff went to his native village Gadva PO Piprach Bazar, UP to look after to mother and plaintiff knew to the defendant no 1 so, he handed over the possession of the said Jhuggi defendant no 1 to look after the Jhuggi in his absence. Defendant no 1 very close to the plaintiff and Jhuggi no W53/28, Sonia Gandhi Camp, Naraina, Delhi. The plaintiff came back to his Jhiggi on 02.02.2003 and found an unknown person in his Jhuggi and asked his name who told his name Muslim Ali and plaintiff checked his house hold articles/luggage in the Jhuggi, but he did not find any articles there. Plaintiff asked the reason from Muslim Ali who is defendant no 2 in the present suit, defendant no 2 did not disclose any reason regarding the missing articles to the plaintiff. When plaintiff asked him to go with him in police station, he assured the plaintiff that he Suit No. 184/05 3 of 16 4 will call the defendant no 1 at the Jhuggi within two days and further assured the plaintiff that the defendant no 2 will hand over the possession of the Jhuggi to the plaintiff. Defendant no 2 neither brought defendant no 1 in Jhuggi nor gave possession of the Jhuggi to the plaintiff. Despite various requests of the plaintiff when defendant no 2 failed to vacate the suit premises, then the plaintiff gave verbal complaint to some police officials against defendant no 1 and 2 and said constable assured the plaintiff to help him, so that the defendant no 2 may hand over the Jhuggi to the plaintiff, but later on they refused to do so. On 15.08.2003, police constable came at the Jhuggi of the plaintiff and arrested the plaintiff without any reason and they have brought the plaintiff at beat and started to torture the plaintiff. The defendant no 1 with the help of police and other defendants took the signatures and thumb impression of the plaintiff by force on blank paper which was written by Rabul Kalam defendant no 4 and after that, the plaintiff on 16.08.2005 went to the police station Naraina, but no action was taken by them. On the basis of said false and fabricated stamp paper the defendant no 2 is now claiming that he is the owner of the said Jhuggi but the plaintiff never sold his Jhuggi to him, neither he obtained money from him. The plaintiff never authorised defendant no 2 to stay in his Jhuggi. The defendant no 2 Suit No. 184/05 4 of 16 5 obtained the signatures of the plaintiff on stamp paper by force with the help of defendants and constables. Plaintiff demanded the forged and fabricated stamp paper from the defendant no 2 but he could not succeed. He cancelled the forged stamp paper and advised the defendant no 2 not to use the stamp paper for any purpose. He gave the legal notice to the other defendants also. On the basis of forged stamp paper, the defendant no 2 tried to obtain the ration card from the ration card office but ration card office demanded old ration card of the plaintiff which he could not obtain from the plaintiff. Therefore, the ration card department has not issued the ration card in his name till today. The plaintiff also gave a complaint to the ration card office in this regard and despite various requests when defendant no 2 failed to hand over the peaceful possession of the suit property to the plaintiff, the present suit has been filed.
3. Defendants were duly served, but despite service when defendant no 1 and 3 to 4, 5, 6, 7 failed to file written statement, they were proceeded ex parte.
4. Written statement filed on behalf of defendant no 2. As per the averment of the defendant no 2, the suit of the plaintiff is gross misuse of Suit No. 184/05 5 of 16 6 process of law and is liable to be dismissed with cost. The plaintiff has no locus standi to file the present suit against the defendant no.2, therefore, the plaintiff is not entitled to get any discriminatory relief. It is averred on behalf of defendant no 2 that plaintiff has not come to the court with clean hands and has suppressed material facts, so suit of the plaintiff is liable to be dismissed. It is further averred on behalf of defendant no 2 that suit of the plaintiff is not maintainable and is without cause of action, hence it is liable to be dismissed. It is further averred on behalf of defendant no 2, that the brother of the plaintiff sold the suit premises to the plaintiff and further the defendant no 2 purchased the same from the plaintiff in the year 2000 by paying a sum of Rs.26,000/ and since then the defendant no 2 is residing in the premises and the plaintiff is neither in the possession and nor have any right to file the present suit. Hence, suit of the plaintiff is liable to be dismissed. It is further averred on behalf of defendant no 2 that plaintiff is not owner of the suit property and plaintiff has sold the suit premises to the defendant no 2 and handed over the possession as well as document i.e. Ration card and to also executed the documents in favour of the defendant no 2 in the presence of witnesses and now the plaintiff filed the present suit against the defendant no 2 just to grab the said Jhuggi. Defendant no 2 summarily denied rest Suit No. 184/05 6 of 16 7 of the averment made by the plaintiff.
5. Replication duly filed on behalf of plaintiff to the WS of defendant no.2 wherein the plaintiff reasserted the averment made in the plaint and denied the averment made on behalf of defendant 2 in his written statement.
6. After completion of the pleadings, following issues framed vide order dated 03.02.2006.
1. Whether the suit has been properly valued for the purposes of court fees and jurisdiction ? OPD
2. Whether the plaintiff is entitled to a decree for possession as sought in the plaint ? OPP
3. RELIEF
7. In support of his claim plaintiff got examined one Ravinder Chauhan as PW1 who lead his evidence by way of affidavit. It is averred on behalf of PW1 that he knew the plaintiff since the year 2001 because PW1 work with plaintiff in same company. It is further averred on behalf of PW1 that plaintiff went to his native village in the year 2002 and gave the suit Suit No. 184/05 7 of 16 8 property to Mukhtiar Ali for taking care. It is further averred on behalf of PW1 that when plaintiff came Delhi again he saw that defendant no 2 in his jhuggi. It is further averred on behalf of PW1 that defendant no 2 occupied the Jhuggi when plaintiff was out of Delhi. It is further averred on behalf of PW1 that many times he went to police station Naraina with the plaintiff but no action was taken by the police. It is further averred on behalf of PW1 that defendant no 2 forcibly entered into the said premises.
Plaintiff further got examined one Vidya Nand as PW2 who lead his evidence by way affidavit. It is averred on behalf PW2 that the plaintiff is the owner of the suit property and defendant entered in jhuggi when Sehmood ali went to his vaillage. It is further averred by PW2 that Sehmood Ali gave his jhuggi to Mukhtiar Ali for looking after when he went to his native village. But after his arrival he was not there and Muslim Ali was came in his jhuggi through Mukhtiar Ali.
Plaintiff himself stepped into witness box as PW3 and led his evidence by way of affidavit. PW3 supported the averment made in the plaint. PW3 relied upon document Ex PW3/1, Ex PW3/3 to Ex PW3/6, Ex PW3/9 to Ex PW3/11 and Mark PW3/2, Mark PW3/7, Mark PW3/8 & Mark PW3/12. It is averred by PW3 that the suit property was allotted to Sh. Mohd Mustkeen S/o Sh. Mohd. Ishar who is the relative of plaintiff. It is Suit No. 184/05 8 of 16 9 further averred that in the year 1990 the said Mohd Mustkeen sold the suit property to Sh. Mehmod Ali who is the real brother of the plaintiff. Sh. Mustkeen had deposited his ration card and other papers such as election I card and passport in the ration card office in favour of the Mehmood Ali. Thereafter, the ration card department issued the new ration card in his name and on 12.07.1994 Mohd. Ali sold the malba of jhuggi to the plaintiff and went to Saudi Arab and executed the stamp paper in the favour of the plaintiff and deposited his ration card in the ration card office and thereafter, the ration card department issued the new ration card in the name of the plaintiff. It is further averred by PW3 that after purchasing the said jhuggi, the plaintiff became the sole owner of the said jhuggi and obtained his passport from the passport office, in the address of jhuggi. The plaintiff has also obtained the election I card from the election commission on the address of suit property. It is averred by PW3 that on 02.10.2002 he went to the native village and handed over the possession of the said jhuggi to the defendant no.1 to look after the jhuggi in his absence. It is further averred by PW3 that the when plaintiff came back to his jhuggi on 02.02.2003 an unknown person in the name of Muslim Ali S/o Mohd. Sadiq was residing in the said jhuggi. The plaintiff checked his house hold articles/luggage in the jhuggi but he did not find any articles there. The plaintiff asked the Suit No. 184/05 9 of 16 10 reason from Muslim Ali defendant no.2 who did not disclose anything. When the plaintiff asked him to go with him in police station he assured him that the defendant no.2 will hand over the possession of the jhuggi to the plaintiff but defendant no.2 neither brought defendant no.1 in jhuggi nor gave possession of the jhuggi to the plaintiff.
All these witnesses were duly cross examined by counsel for the defendant.
8. In support of his case, the defendant has examined Sh. Santlal as DW2, Sh. Rabul Kalam as DW3, Sh. Nasim Khanas DW4 and Sh. Sharif DW5. It is averred by these witnesses that they know the defendant no.2 for the last many years who is residing in the suit premises since 2000. It is further averred by these witnesses that plaintiff sold the suit property to defendant no.2 for a consideration of Rs.26,000/ and since then the defendant no.2 alongwith his family members residing at the said jhuggi/suit premises. It is further averred by these witnesses that in the year 2002 when plaintiff returned from his native village, he requested the defendant no.2 to transfer the said jhuggi to him and when the defendant no.2 refused, the plaintiff lodged false complaints in the police station. It is further averred by these witnesses that in the police station in front of them and other person, the plaintiff had admitted that he has sold the jhuggi to Suit No. 184/05 10 of 16 11 defendant no.2 for a sum of Rs.26,000/.
The defendant no.2 has examined himself as DW4 who led his evidence by way of affidavit. It is averred by DW4 that the plaintiff has sold the suit property/jhuggi to him in the year 2000 for consideration of Rs.26,000/ through his friend namely Mukhtiar Ali. It is further averred by DW4 that Mukhtiar Ali offered me to purchased the suit property/jhuggi and after due negotiations between the plaintiff and him through Mukhtiar Ali, the sale consideration was fixed at Rs.26,000/ and it was agreed that the entire sale consideration will be paid within 30 days as the plaintiff himself represented to be in dire need of money to contribute the share of construction of joint family property of the plaintiff. It is further averred by DW4 that on payment of entire sale consideration, the plaintiff handed over the vacant and peaceful possession of the suit property/jhuggi to the plaintiff and in the presence of Mukhtiar Ali, the plaintiff assured the defendant no.2 that documents will be executed within a span of 34 days. It is further averred by DW4 that when he contacted the plaintiff through Mukhtiar Ali after about one week from the date of taking possession of the said jhuggi, the plaintiff disclosed about his exigencies and further assured to execute the sale documents after his returning from his native village. It is further averred by DW4 that after returning from his native village, the Suit No. 184/05 11 of 16 12 plaintiff turned dishonest and asked him to vacate the jhuggi and receive back Rs.26,000/. It is further averred by DW4 that after due intervention of common friends and relatives of both of us including Mukhtiar Ali, the plaintiff executed the sale documents on 15.08.2003 and the same is Ex DW1/1, which was duly attested by the witnesses.
The defendant has not examined any witness as DW1.
All these witness were duly cross examined by Ld. Counsel for the plaintiff.
9. I have heard the Ld. counsel for the parties and perused the material available on record and case laws as relied upon by parties. My issuewise findings are as under:
10. ISSUE No.1.
Whether the suit has been properly valued to the purposes of court fees and jurisdiction?
The onus to prove this issue was upon the defendant. As per the averment of the plaintiff in the plaint, the plaintiff has valued the suit property for Rs.10,000/ for the purposes of court fees and jurisdiction. It is averred on behalf of defendant that the plaintiff has not got valued the Suit No. 184/05 12 of 16 13 suit property properly for the purposes of court fees and the value of the suit property is much more that what the plaintiff has valued the suit property. However, the defendant has not raised this issue neither led any evidence in this issue. I am of the considered view that plaintiff has properly valued the suit property for the purposes of court fees and jurisdiction.
11. ISSUE No.2 Whether the plaintiff is entitled to a decree for possession as sought in the plaint? OPP.
The onus to prove this issue was upon the plaintiff. It is averred by plaintiff that plaintiff has purchased the suit property and plaintiff is the owner of the suit property. It is further averred by plaintiff, that the plaintiff went to the native place in the year 2002 and handed over the possession of to the suit property to defendant no.1 to look after his jhuggi in his absence and when he returned back from his native village, he found defendant no.2 in his jhuggi, who did not disclose the reason as to why he was residing in his jhuggi. There after the plaintiff made police report against him but the police did not take any action against the defendant no.2. On 15.08.2003 the plaintiff arrested by the police and defendant no.2 Suit No. 184/05 13 of 16 14 was called in the police and in the police station, the signature of plaintiff were obtained by the police under threat and pressure. It is further averred by plaintiff that he had never sold the suit property to the defendant no.2 neither he received any sale consideration as alleged by defendant no.2, therefore, the suit of the plaintiff is liable to be decreed. The plaintiff has relied upon the documents ie. site plan as Ex PW3/1, Ownership proof of jhuggi as Ex PW3/2, Ration card as Ex PW3/3, Passport as Ex PW3/4, Election I card as Ex PW3/5. It is averred by plaintiff that all these documents reflects that the plaintiff is the owner of the suit property. The plaintiff supported the averment by examining two more witnesses. Plaintiff's witnesses also supported the averment made by the plaintiff.
On the other hand, it is the averment of the defendant no.2 that defendant no.2 has purchased the suit property from plaintiff and now defendant no.2 is the rightful owner of the suit property. Defendant no.2 relied upon the document Ex DW1/1 and already exhibited as Ex PW3/1/xi. In support of his claim the defendant examined 4 more witnesses and these four witnesses averred that document Ex DW1/1, Ex PW3/1/xi was executed in their presence and all these four witnesses also averred that the plaintiff acknowledge the receipt of Rs.26,000/ in their presence and plaintiff also acknowledge that he had sold the suit property to defendant Suit No. 184/05 14 of 16 15 no.2.
In cross examination of witnesses of defendant, the plaintiff failed to bring anything contrary to the averment of the defendant.
On the other hand, in cross examination of PW3/plaintiff, the plaintiff admitted the execution of documents Ex PW3/1/xi. Plaintiff/PW3 further admitted that the document Ex PW3/1/xi also bears the signature of Mukhtiar Ali to whom the plaintiff has allegedly handed over the possession before departing for his native place. PW3 further admitted that Ex PW3/1/xi was written by one Sh. Rabul Kalam who is one of the distant relative of plaintiff and who is also one of the witness of defendant i.e. defendant no.3.
It is admitted fact that at present defendant no.2 is in possession of the suit property and in view of the fact that PW3/plaintiff has admitted execution of documents Ex PW3/1/xi. I am of the considered view that the plaintiff has sold the suit property to the defendant and his suit for possession does not hold any merits. Hence, this issue is decided in favour of defendant no.2 and against plaintiff.
12. RELIEF In the light of above discussions, the suit of the plaintiff is hereby Suit No. 184/05 15 of 16 16 dismissed being devoid of any merits. No order as to costs. Decree sheet be drawn accordingly. File be consigned to the record room after due compliance.
Announced in the open court (Ravindra Kumar Pandey) today i.e 24.08.2011 Civil Judge/Central04/24.08.2011 (total pages 1 to 16) Suit No. 184/05 16 of 16 17 Suit No. 184/05 24.08.2011 Present: None.
Vide my separate judgement announced and dictated in open court, the suit of the plaintiff is dismissed. No order as to costs. Decree sheet be drawn accordingly. File be consigned to the record room after due compliance.
(Ravindra Kumar Pandey)
Civil Judge Central04/24.08.2011
Suit No. 184/05 17 of 16
18
M 11/07
24.08.2011
Present: None.
Vide my separate judgement announced and dictated in the open Court in suit no.184/05, the suit of the plaintiff is dismissed and the present application under Section 340 Cr.P.C is also not maintainable in view of observations made in the said main file as no ground is made out for initiating the proceedings under Section 340 Cr.P.C. Hence, the present application under Section 340 Cr.P.C is also hereby dismissed being devoid of merits. File be consigned to the record room.
(Ravindra Kumar Pandey)
Civil Judge Central04/24.08.2011
Suit No. 184/05 18 of 16