Delhi District Court
Sh. Rameshwar Dass vs Sh. Hukam Chand on 18 April, 2016
IN THE COURT OF MS. NEHA, CIVIL JUDGE09,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Suit No. 70/15
Case ID No. 02401C0194372015
1. Sh. Rameshwar Dass,
2. Sh. Mange Ram,
3. Sh. Ganga Ram,
4. Sh. Abhey Ram,
5. Sh. Bhoop Singh,
All S/o Late Sh. Ram Pat.
R/o Taj Pur Khurd,
Post Office Chhawla,
New Delhi - 110071. .... Plaintiffs.
Versus
1. Sh. Hukam Chand,
S/o Late Sh. Kehar Singh.
2. Sh. Ram Dhan,
S/o Late Sh. Thana.
3. Sh. Net Ram,
S/o Late Sh. Thana.
All resident of :
Village Taj Pur Khurd,
Post Office Chhawla,
New Delhi - 110071. .... Defendants.
Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 1 of 27
SUIT FOR PERMANENT INJUNCTION.
Date of Institution : 06.06.2005
Date of reserving Judgment : 16.03.2016
Date of pronouncement : 18.04.2016
JUDGMENT
1. Vide this Judgment I shall dispose of the suit for permanent injunction filed by the plaintiffs against the defendants thereby restraining defendant No. 1 from dispossessing the plaintiffs forcibly or interfering with the peaceful possession of the plaintiffs in the property bearing Khasra No. 66 (010), situated in the revenue estate of village Taj Pur Khurd, New Delhi - 110071(hereinafter called 'suit property') without due process of law. The necessary facts, necessary for disposal of the case, as stated in the plaint, are as follows. 1.1. The plaintiffs are the residents of Village Taj Pur Khurd, Post Office Chhawla, New Delhi - 110071. The father of the plaintiffs, Late Ram Pat, was the real brother of defendant nos. 2 namely Ramdhan and 3 namely Netram. The plaintiffs and the defendants have inherited all the movable and immovable properties including agricultural land and are in possession of their respective land.
1.2. The consolidation proceedings had taken place in the village in year 1972 and accordingly, the land allotted to the plaintiffs and the Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 2 of 27 defendant Nos. 2 and 3 was shown in the Copy Istemal Aarja. The plaintiffs' father, Late Ram Pat, and the defendant Nos. 2 and 3 mutually divided their respective land and land bearing Khasra No. 66 (010) situated in the revenue estate of Village Taj Pur Khurd came into the share of Late Sh. Ram Pat. Late Rampat constructed a hall room for storing fodder / bhusa etc. and a tin shed enclosed with the boundary wall and he was in continuous possession of the same. The plaintiffs, after the death of their father (Late Sh. Ram Pat), are accordingly in possession of the premises.
1.3. The defendant No. 1, who is having his house adjacent to the said premises asked the plaintiffs to vacate the suit premises on 25.4.2005 saying that the aforesaid Khasra number came to his share and the father of the plaintiffs was in unlawful possession of the same. 1.4. On 1.6.2005, the defendant No. 1 attempted to stop the plaintiff No. 1 from parking his tractor in the suit property but the situation was saved by the intervention of the neighbors. Defendant No. 1 had also demolished the wall separating the plot of the plaintiffs from the plot of the defendant No. 1. The defendant Nos. 2 and 3 are made proforma parties as no relief is sought against them. The plaintiffs even approached the police, but the police refused to register a case. Hence the present suit has been filed seeking following relief:
Restraining the defendant no. 1 from dispossessing forcibly / interfering in the peaceful possession of the plaintiffs in the suit property bearing khasra no. 66 (010) in the Revenue Estate of Village Tajpur Khurd, New Delhi, without due process of law.
Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 3 of 27
2. Defendant No. 1 filed written statement thereby taking preliminary objection that the plaintiffs have no right, title or interest in the suit property and the same is exclusively owned and possessed by the defendant No. 1 for over the last 45 years. The suit of the plaintiff is without any cause of action and the plaintiffs have no locus standi to file the present suit. The father of the plaintiffs, Sh. Ram Pat accepted the right of the ownership and possession of the defendant no. 1 over the suit property.
3. It is also submitted in the written statement that the suit is not maintainable under Section 41 of the Specific Relief Act and the plaintiffs have not approached this Court with clean hands and have concealed the true facts of the case. It is further submitted that in the garb of present suit, the plaintiffs want to undo the effect of the order of the Revenue Court dated 1.10.1970 in case bearing No. 418/RA/70 by which the rights of the parties were decided in respect of the Khasra in dispute and against which no appeal was ever filed by the father of the plaintiffs. The discrepancy between the field book and Khatauni was rectified by the order of the Tehsildar, Nazafgarh wherein the defendant has been shown as the bhumidhar and in possession of (018) biswas in Khasra No. 66, instead of (08).
4. It is also stated in WS that the plaintiffs have intentionally concealed the fact that the defendant No. 1 was in possession of the suit property much prior to the beginning of the consolidation proceedings and had Pucca constructed boundary wall since 1958. The defendant No. 1 had also got built two Pucca barracks on his land Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 4 of 27 adjoining the house of Late Sh. Ram Pat in the year 196465 and a garage admeasuring 11'9" x 20' for the tractor and trolly was built up in the year 197273. The portions under the possession of the plaintiffs and the defendants are separated by the old Pucca walls adjoining each other. The defendant No. 1 has three sons namely Hari Ram, Mool Chand and Mir Singh and they divided this plot in three portions and Sh. Mool Chand had taken a water connection in the plot. It is submitted that neither plaintiffs nor their father has ever been in possession of the suit property at any point of time.
5. Defendant Nos. 2 and 3 have filed their joint written statement wherein they have admitted the claim of the plaintiffs.
6. No replication to the WS was filed by the plaintiffs.
7. On the basis of the pleadings of the parties, following issues were framed by the Ld. Predecessor of this court vide order dated 7.9.2005 : (1) Whether the plaintiff is entitled for an equitable relief of permanent injunction as prayed for? OPP.
(2) Whether the suit of the plaintiff is not maintainable in view of the preliminary objections raised in the written statement? OPD.
(3) Whether the suit has become infructuous in view of the pendency of the proceedings under Section 26 of the Land Revenue Act? OPD.
Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 5 of 27 (4) Whether defendants have committed any contempt by violating order dated 24.6.2005. If so, its effects? OPP.
(5) Relief.
The parties were then called upon to lead their respective evidence.
8. In plaintiffs' evidence, plaintiff No. 2, Sh. Mange Ram was examined as PW1 who tendered his evidence by way of affidavit Ex. PW1/A wherein he has reiterated the averments made in the plaint.
PW1 relied upon the following documents:
• Copy Istemal Arja as Ex. PW1/1.
• Site plan as Ex. PW1/2.
• Report of the record room dated 2.8.2005 as Ex.
PW1/3.
• Application form for certified copy as Ex. PW1/4.
• Copy of Khatauni Paimais of land of Sh. Hukam
Chand as Ex. PW1/5.
• Copy of kalandara as Ex. PW1/6.
9. Sh. Narender Kumar, Record Keeper, Revenue Department, Tis Hazari Courts, Delhi was examined as the PW2. PW2 has deposed that he could not bring the summoned record as the same was not traceable. He identified the signatures of the Record Keeper Sh. Tek Chand on the report dated 2.8.2005 EX.PW1/3 given on the application for the certified copy of the order of case No. 418/RA, Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 6 of 27 dated 1.10.1970 of the Revenue Estate of Village Tajpur Khurd, Delhi.
10. Sh. Surender Gaur was examined as PW3. He has tendered his evidence by way of affidavit Ex. PW3/1. Sh. Chhatar Pal Singh, Kanungo, Record Rook, Tehsil Hauz Khaz, Mehrauli, Delhi was examined as PW4 who deposed that the record of the case No. 418/RA, dated 1.10.1970 of the Revenue Estate of Village Tajpur Khurd, Delhi was not available with their office.
11. HC Dharamveer, PCR official was examined as PW5. He deposed that the Police Control Room received a call on 14.12.2005 at 9.24 am from one Sh. Rameshwar of Village Tajpur Khurd, PS Najafgarh, Delhi. The photocopy of the PCR call is Ex. PW5/1 (OSR). Woman Constable Kaushalya was examined as PW6. She produced the record of DD No. 76B, PS Najafgarh, Delhi. The copy of Kalandara under Section 107/150 Cr.PC is Mark PW6/1. Head Constable Satish was examined as PW7. PW7 brought the record of DD No. 76B dated 14.12.2005. The true copy of the DD report is Ex. PW2/1.
12. Thereafter the plaintiff's evidence was closed vide order dated 18.05.2010 and the matter was listed for defence evidence.
13. In defence evidence, Sh. L.B. Verma, Patwari was examined as DW1. DW1 has deposed about the record pertaining to the suit property after going through the same.
14. Sh. Saurav Saxena, J.E. with the BSES Rajdhani Power Limited, Najafgarh Commercial Office was examined as DW2. However his examination could not be completed and his examination Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 7 of 27 was dropped vide order dated 31.08.2013 at the request of Ld. Counsel for the defendant no.1.
15. The defendant No. 1, Sh. Hukam Chand examined himself as DW3. He tendered his evidence by way of affidavit Ex. DW3/A. However the witness could not be crossexamined on the submissions that due to old age and illness, witness was not able to answer the questions.
16. Sh. Mool Chand, son of the defendant No. 1 was examined as DW4. DW4 tendered his evidence by way of affidavit Ex.DW4/A wherein he relied upon the following documents : i. Special Power of Attorney as Ex. DW4/1.
ii. Farad dated 22.4.1973 in respect of Khasra No. 66 as Ex. DW4/2.
iii. Land holder's pass book as Ex. DW4/3.
iv. Khatauni Pamaish for the year 1970 in respect of old Khasra No. 168 (New Khasra No. 66) recording "gair mumkin makaan" as Ex. DW4/4.
v. Khatauni for the year 20012002 as Ex. DW4/5.
vi. Certified copy of the order passed by the Deputy Commissioner (West), Delhi in respect of the suit property as Ex. DW4/6.
17. Sh. Jai Narain, a resident of the adjoining village was examined as DW5. DW5 tendered his evidence by way of affidavit Ex. DW5/A. Sh. Daya Nand was examined as DW6. DW6 tendered his evidence by way of affidavit Ex. DW6/A. Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 8 of 27
18. Sh. Narender Kumar, Record Keeper, Revenue Record Room (Consolidation), Tis Hazari Courts Complex was examined as DW7. DW7 brought the summoned record in respect of the old Khasra No. 168/1 (New Khasra No. 66) in the Revenue Estate of Tajpur Khurd, Delhi. He produced the Certified copy of the Scheme Chakbandi as Ex. DW7/1, Certified true copy of the register Karwahi as Ex. DW7/2 and Certified true copy of the document bearing thumb impression of Netram during consolidation proceedings as Ex. DW7/3.
19. DE was closed vide order dated 01.11.2012. The parties were then called to advance final arguments.
20. Vide judgment dated 31.08.2013, the Ld. Predecessor of this Court decided issue no. 3 in favour of the defendant no.1 and suit of the plaintiffs was held to be barred under DLR Act. The plaintiffs filed appeal against the said order and vide order dated 28.02.2015 of the Ld. ADJ, the case was remanded back to the Court to give fresh decision in accordance with law. The relevant para of the order is reproduced as under:
In the light of the law laid down in Tara Chand's case and in view of the nature of relief claimed in the present suit, I am of the considered view that Civil Court has jurisdictions to try the suit for permanent injunction in respect of agricultural land.
It is worth to mention here that Learned Trial Court has jointly decided issue nos. 1, 3 and 4 in favour of plaintiffs and against the defendant inter alia holding that since civil court does not have any jurisdiction in view of Section 185 and 190 of Delhi Land Reform Act, Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 9 of 27 1954 and in view of Section 83 and 26 of Delhi Land Revenue Act, 1954 therefore, remaining issues cannot be decided for want of jurisdiction. As I have already observed that civil court has jurisdiction to try the present suit, therefore, trial Court is directed to give findings on merit on all issues except the issue of jurisdiction. While deciding the suit, the learned trial Court shall not be influenced by any of the observations made by this Court except issue of jurisdiction.
21. In view of directions of Ld. Appellate Court, this Court has heard arguments afresh. Written arguments were filed by the parties. My issuewise findings are as follows :
22. ISSUE NO. 2: Whether the suit of the plaintiff is not maintainable in view of the preliminary objections raised in the written statement? OPD
23. This issue is taken first as it is related to maintainability of the suit. The onus to prove this issue was on the defendant no.1. It is contended by defendant no. 1 that plaintiff was not claiming injunction on the basis of settled possession, but on the basis of title and the title was challenged by the defendant. Therefore, plaintiff should have amended the suit and filed suit for declaration with consequential relief of injunction.
24. On the other hand, Ld. Counsel for the plaintiff has argued that suit of simplicitor injunction is maintainable in respect of agricultural land before Civil Court and the Court has inherent power to restore possession if the plaintiff has been dispossessed during pendency of Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 10 of 27 the suit without due process of law.
25. I have considered the submissions. It is settled that the suit for permanent injunction on the allegations that the defendant has tried to forcibly dispossess without due process of law is maintainable in respect of agricultural land. The suit is not barred under provisions of DLR Act. The plaintiff has already challenged the revenue records before the concerned revenue authorities and therefore, it was not necessary for the plaintiffs to seek declaration of title with consequential relief of injunction and the simplicitor suit for injunction is maintainable.
26. In the matter of Tanushree Basu & ors. vs. Ishani Prasad Basu (2008) 4SCC 791, Hon'ble Supreme Court Court has held that if a party takes recourse to any contrivance to dispossess another during pendency of suits either in violation of the order of injunction or otherwise, the court undisputedly will have jurisdiction to restore the parties back to the same position.
27. In view of observation of Hon'ble Supreme Court, this Court is of the opinion that the plaintiff was not required to file suit for possession under section 6 of Specific Relief Act and the Court has inherent jurisdiction to restore possession to the parties.
28. The defendant has failed to bring any other material on record which could show that the suit of the plaintiffs is not maintainable. In view of discussion hereinabove, this Court holds that the suit of the plaintiffs is maintainable in the present form. Accordingly, this issue is decided against the defendant no.1 and in favour of the plaintiffs.
Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 11 of 27
29. ISSUE NO. 1 & 4: Whether the plaintiff is entitled for an equitable relief of permanent injunction as prayed for? OPP. Whether defendants have committed any contempt by violating order dated 24.6.2005. If so, its effects? OPP.
30. Issue no. 1 and 4 are taken together as they are related to each other and require common discussion and also to avoid repetition.
31. The onus to prove these issues was on the plaintiffs. The plaintiffs have contended that they are owners and in possession of the suit property and the defendant no.1 had forcibly dispossessed the plaintiffs from the suit property during pendency of the suit. This contention is however denied by the defendant no.1 who has contended that he is the owner and in possession of the suit property.
32. Ld. counsel for the plaintiffs has argued that the defendant has failed to prove the order dated 01.10.1970 vide which the revenue record/Khatauni was changed in the year 2005 and total 018 bigha was shown to be in possession of Hukum Chand. It is submitted that the file is not traceable which proves that no such order was ever passed. The defence witnesses have failed to prove that the defendant had any right/possession over the property. No document has been produced by any of the defence witness which could show that the defendant no.1 was in possession of the suit property prior to 1970. It is argued that despite grant of interim order in favour of the plaintiffs, the defendant no.1 had forcibly dispossessed the plaintiffs from the suit property and the possession of the plaintiffs may be restored.
Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 12 of 27
33. On the other hand, Ld. counsel for the defendant no. 1 has argued that the plaintiffs have not brought any material to show that they were in possession of the property on the date of institution of the suit. The Kisan Passbook of the defendant shows that the defendant was in possession of the property since the time of consolidation and the plaintiffs have to prove that they had dispossessed the defendant no.1 and reentered the possession. It is also submitted that the revenue records are presumed to be correct and unless the plaintiff bring the material contrary to disprove it, it is presumed to be done in accordance with law. It is argued that the status quo order was not clear and therefore it can not be said that the defendant no.1 had committed any contempt of status quo order. The plaintiffs have failed to prove their case on the balance of probability and therefore the suit may be dismissed.
34. I have considered the contentions of the parties and perused the material on record.
35. It is admitted case of parties that plaintiffs and defendant no.1 are related to each other. It is also admitted case of the parties that defendant no.1 is in possession of the suit property as on date. However the contention of the plaintiffs is that they were in possession of the suit property for last several years and also on the date of filing of the suit, however defendant no.1 had forcibly dispossessed them on 14.12.2005. On the other hand, the defendant no.1 has contended that the suit property has always been possessed by him and he was declared as bhumidhar during consolidation proceedings.
Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 13 of 27
36. Now, this Court shall decide as to who was in possession of the suit property on date of filing of the suit.
37. Parties have led oral evidence and also produced documentary evidence to prove their ownership and possession on the suit property. Plaintiffs have examined one Surinder Gaur as PW3 to prove possession of the suit property prior to 14.12.2005. PW3 has deposed in his affidavit that he had seen the disputed plot, where he used to park RTV vehicle belonging to Smt. Shashi Bala, wife of Mange Ram. The witness has stated during crossexamination that he can not give any particulars, khasra number and location of the same. He can not tell the measurement, but he can give the surrounding. He has also stated that he does not have any proof to show that the place where he used to park RTV was in possession of Sh. Mange ram.
38. The evidence of PW3 shows that he does not know the particulars of the property and he has also not seen as to who and when the defendant no.1 has allegedly dispossessed the plaintiffs.
39. PW3 in his affidavit had stated that he knows both the parties being common friend of the family. However, during cross examination, the witness has stated that he cannot tell anything about the family of Hukum Chand. He can identify the son of Hukum Chand by face. He also does not know the total number of family members of Hukum Chand. The statement of PW3 Surinder Gaur shows that he does not know the defendant no. 1 and his family. PW3 had also stated that he met the wife of Mange Ram who told him that they were in possession of the plot in question and have been dispossessed by the Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 14 of 27 defendant. This statement of the witness gives suggestion that he had no knowledge about the possession of plot in question and had deposed as informed by the wife of Mange Ram.
40. Therefore, this Court is of the opinion that PW3 does not have complete knowledge about possession of suit property or dispute between the parties. PW3 is also an interested witness being driver of the vehicle owned by the wife of plaintiff no.2 and he has a reason to give statement in favour of plaintiffs. Therefore, the testimony of PW3 can not be relied upon.
41. The defendant no.1 has examined two independent witnesses to prove possession on the suit property. DW5 Jai Narain has stated in his affidavit that he has always seen the defendant no.1 and his family enjoying exclusive possession of the suit property. He has deposed during crossexamination that he can not identify the site plan. He has also stated that he had heard about dispute between the children of the parties. He does not know the names of children of Rameshwar. He has also stated that he can not give the exact measurement of the land in dispute. The testimony of DW5 Jai Narain reveals that he has no knowledge about the land or the khasra number of the property or about the dispute between the parties.
42. Another independent witness examined by the defendant no.1 is DW6 Daya Nand. DW6 Daya Nand has deposed that he had filled the land in Khasra no. 66 with earth upto a level of 4 feet at the instance of defendant in the year 1980. The whole land in khasra no. 66 was four feet in depth from the ground level, however some construction was Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 15 of 27 there. He has also stated during crossexamination that he does not know the khasra number of the property in possession of the defendant no.1. The testimony of this witness also shows that he does not have knowledge about the property in dispute or property in possession of defendant no.1. Therefore evidence of DW5 and DW6 can not be relied upon to prove possession of defendant no.1 on the suit property.
43. The defendant no.1 could not complete his evidence due to his old age and illness. Defendant no.1 examined his son Mool Chand as DW4 to prove his possession and the documents in support of possession. DW4 Mool Chand has placed on record the documents to show that the defendant no.1 is the recorded bhumidhar of the suit property.
44. Ld. counsel for the plaintiff has argued that DW4 Moolchand has admitted that the plaintiff had built a garage and tin shed in the suit property and the site plan of the defendant no.1 also shows partition wall between the portion of the plaintiffs and the defendant no.1. Ld. Counsel for the plaintiff has argued that the DW4 has confirmed that there is a partition wall from point B to C and the gate of Khasra no. 66 is situated at point I which proves that defendant no.1 has no concern with the garage and hall.
45. On the contrary, Ld. counsel for the defendant has submitted that one application was filed on behalf of the defendant immediately after crossexamination of DW4 that the witness could not understand the legal terminology and the meaning of the plaintiff / defendant. It is also argued on behalf of defendant that the plaintiff has to prove the Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 16 of 27 case on his own legs and he cannot rely upon the weak defence of the defendant.
46. I have considered the contentions of Ld. counsel for the parties and gone through the sworn testimony of DW4 Moolchand. DW4 has stated, "It is correct that the plaintiff has constructed a big hall and a garage in khasra no. 66 (010)." The place where the garage and hall are shown in the site plan of defendant no.1 are at totally different place in the site plan of the plaintiffs.
47. The plaintiffs have filed site plan Ex.PW1/2. In this site plan, the suit property is shown to the North side of the land of Hukum Chand i.e. defendant no.1 in red colour. Suggestion has been given to PW1 that the site plan is not correct as per the site. The defendant no.1 has filed his own site plan which is Ex.DW3/1. This site plan Ex.DW3/1 was put by the Ld. Counsel for the plaintiffs to DW4 Moolchand. Suggestion has been to DW4 that point A in the site plan Ex. DW3/1 is the house of the defendant no.1 and Hari Ram has been residing therein with his family. It has also been suggested to the witness that there is a wall from point B to point C. It has also been suggested that at point E in the site plan there is electricity connection obtained by Hukum Chand for his tube well. The nature of questions put to the witness DW4 are sufficient to show that the plaintiffs have admitted the site plan Ex. DW3/1 as true and correct site plan. In the site plan of defendant no.1, the hall and garage is shown on the West side of land of Hukum Chand. These are material contradictions in the site plan filed by the plaintiffs and they are sufficient to show that the Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 17 of 27 plaintiffs have not approached the Court with clean hands.
48. Now I shall examine the documents produced by the parties to show possession over the suit property.
49. Ld. counsel for the plaintiffs has argued that there is no record of file no. 418/RA on which said order dated 01.10.1970 was passed and the revenue record changed in the year 2005 on the basis of said order is illegal and the revenue record is forged and fabricated.
50. I have considered the submissions. The plaintiffs have alleged that the change of revenue record in the year 2005 in the name of defendant no.1 making entire 018 bigha of khasra no. 66 in the name of Hukum Chand is improper as no such order was ever passed and therefore the record is not traceable. The application for certified copy of the record of order dated 01.10.1970 of case no. 418/RA is Ex.PW1/4. As per the report of the official from record room concerned, the file of Hukam Chand vs. Rampath was not recorded in the goshwara register of the record room.
51. Admittedly, the file of case no.418/RA has not been produced by the record official. Be that as it may, even if the file of judgment/order dated 01.10.1970 has not been produced, the revenue record shows that defendant Hukum Chand is the recorded Bhumidhar of 018 Bigha of Khasra no. 66. Nothing has come during evidence of PW2 Narender Kumar, Record Keper Revenue Department or PW4 Chhattar Pal Singh, Kanungo, Tehsil Hauz Khas which could show that the order was never passed and the file never existed. PW2 Narender Kumar has deposed that the concerned record is not Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 18 of 27 available as the same has not been received from the concerned Tehsil. PW4 Chhattar Pal Singh has stated that the consigned decided cases of SDM after 1996 is available and not for period prior to that. He has also stated that the record called for order dated 418/RA belongs for period prior to 1996 and therefore the same is not available. There is nothing to show at this stage that the order was never passed or any such case was never decided by the SDM concerned.
52. The plaintiff has challenged the order of SDM dated 01.10.1970 before the Deputy Commissioner and the said appeal was dismissed, the order is Ex.DW4/6. However vide order dated DW4/P1 of the Financial Commissioner, the order of Deputy Commissioner was set aside and the matter was remanded to Deputy Commissioner for fresh consideration. The matter has not yet been decided by the Deputy Commissioner afresh and admittedly the proceedings are still pending. There is no dispute that as on date, the defendant no. 1 is the recorded bhumidhar and person in possession of the land 018 bigha of khasra no.66 in the revenue records.
53. The plaintiff has placed on record original "Copy Ishtemal Araza" in Urdu language which is Ex PW1/1 to show that they are in possession of the suit property for last several years. As per said record Ex.PW1/1, Rampat, Ramdhan, Netram were recorded bhumidhar on land measuring 019 bigha of khasra no. 168. The year of issuance of said pushtika is not mentioned. The record Ex.PW1/1 is in Urdu and it also mentions the old Khasra no. 168 of the property. On the contrary, the record of the defendant Ex.DW4/3 is in Hindi, containing date of Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 19 of 27 issuance and also mentioning the new Khasra no. 66 of the property.
54. The defendant has placed on record the original "Krishak Bhumi Vivran Pushtika" which is Ex.PW4/3. Perusal of the said pushtika would show that it has been issued to defendant Hukam Chand in the year 1974. As per the record, in the year 1974, Hukum Chand is shown as person in possession of Khasra no. 66 (old no. 168), 018 bigha. The Ex.DW4/3 i.e. Kisan Book is a reliable document. Apart from Istemal Arja Ex.PW1/1, the plaintiffs have not placed on record any other revenue record to show that the property khasra no. 66 (old no.
168) 010 bigha was in the possession of the father of plaintiffs.
55. The defendant no.1 has also examined patwari Sh. L. B. Verma as DW1 to prove that defendant no.1 was in possession of the property since long. He has deposed that he had checked the revenue record as well as consolidation record pertaining to suit property. He has deposed that the plaintiffs have never been in possession of the suit property during a span of 4050 years. The consolidation proceedings started in the year 19701971 and upto 1970, Rampat etc were shown as Bhumidhar in respect of suit land.
56. Ld. Counsel for the plaintiffs has argued that the DW1 is not reliable witness as he has not produced the record and despite official witness, DW1 had deposed on the basis of personal knowledge which makes his statement unreliable.
57. I have considered the contentions raised by Ld. Counsel for the plaintiffs. There are no merits in the contention. A Patwari is a person who deals with the revenue record of a village. He is one of the best Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 20 of 27 official having knowledge of the ownership and possession of any particular land falling in the revenue estate for which he is appointed as Patwari. Even otherwise, the consolidation record has been produced by DW7 to prove that Rampat etc were bhumidhar, but defendant no.1 was in possession of the suit land.
58. The defendant has summoned the revenue records to prove the possession of the suit property at the time of consolidation proceedings. The consolidation record was produced by DW7 Record Keeper Narender Kumar. The record also shows that the defendant no.1 was in possession of the land 018 of khasra no. 66 (168), though father of plaintiffs and defendant no.2 and 3 were bhumidhar.
59. The document Ex.PW7/3A though does not show for what purpose the signature of Netram S/o Thana was taken. However other documents produced by the official shows that the defendant no.1 was recorded as person in possession of the khasra no. 66, rakba 018. The document Ex.DW7/A is certified copy of 'scheme chakbandi which shows that as on the date of 26.05.1970 when the report was prepared, Khasra no. 168/1, rakba 010 was in the name of bhumidhar Rampat, Ramdhan and Netram, all s/o Thana, but the person in possession of land was recorded as Hukumchand s/o Sh. Kehar. Ex.DW7/2, is certified copy of register karwahi, wherein Hukum Singh S/0 Kehar Singh was recorded bhumidhar in Khasra no. 66, rakba 018.
60. The plaintiffs have also shows copy of Khasra girdawri to DW4 Moolchand to show that defendant no.1 was not in possession of 010 bigha of khasra no. 66. The documents Ex.DW1/P3 to Ex.DW1/P9 Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 21 of 27 are the records of khasra girdawri of different years which shows that 08 bigha of khasra no. 66 was in possession of the defendant no.1. However the records do not contain the amendment/changes made in accordance with order dated 01.10.1970 of SDM and the rectification is shown in the khautani of the year 20012002 which is Ex.PW1/5 and also Ex.DW4/P1.
61. The plaintiffs have placed on record Khautani Paimais of defendant no.1 to show that defendant no.1 is not the owner of the suit property. However, this Court is of the opinion that the plaintiff does not have to bring negative evidence to show that defendant no.1 is not the owner or person in possession of the suit property. But it is duty of the plaintiffs to bring positive evidence to prove on the balance of probability that they are the owners and they are in possession of the suit property and therefore entitled to the relief claimed.
62. PW1 Mange Ram has been examined on behalf of plaintiffs to prove that the plaintiffs are owner and in possession of suit property. PW1 Mange Ram has deposed during crossexamination that he can not say whether the partition between his father and defendant no. 1 had taken place in the year 1950. The defendant no. 1 is his uncle. He has further stated that about 5060 persons from the neighbourhood had gathered at the site when the defendant no.1 tried to dispossess them before filing the suit. He knows the names of all the persons who were present on that day.
63. PW1 has further stated, "We were actually dispossessed on 14.12.2005. The land in dispute is amidst the abadi area of the village.
Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 22 of 27 On 14.12.2005 also, about 5060 persons were present who saw us being physically dispossessed from the suit land. It is correct that I have not given the name of any persons from the village who were present and in whose presence we were dispossessed." He has also admitted that he has not given the name of any independent person allegedly present on the spot from the village in whose presence they were dispossessed. He has stated that no person of the village wants to be witness of both of us.
64. PW1 has deposed in his affidavit that the plaintiffs were attempted to be dispossessed on 01.06.2005. It is averred in para no. 6 of the plaint that defendant no.1 had demolished the wall separating the portion of plaintiffs with that of defendant no.1. On the contrary, in the affidavit, PW1 has stated that the plot in dispute was separated by a wall on the backside, which had fallen down due to heavy rain. This is also a material contradiction in the statement of PW1 Mange Ram which also creates doubts on his evidence. No PCR call had been made by any of the plaintiffs on 01.06.2005 when the defendant no.1 allegedly tried to dispossess the plaintiffs. There is no date of alleged demolition of wall by the defendant no.1.
65. The evidence of PW1 also reveals that many persons were present at the time when the plaintiff was allegedly dispossessed on 14.12.2005. However none of the persons has been examined as witness on behalf of plaintiff that they were forcibly dispossessed as alleged. Record shows that the four independent witnesses were cited in the list of plaintiff's witnesses, however no steps were taken to Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 23 of 27 summon any of them. The plaintiff have not filed any application for summoning of any of those witnesses. The record of PCR call and DD entry have been summoned to prove that the plaintiffs were forcibly dispossessed. However mere PCR call or DD entry is not sufficient to even prima facie show that the defendant no.1 had forcibly dispossessed the plaintiffs from the suit property.
66. It is a settled principle of law that where the property is a vacant site, then the law which has to be applied to determine the possession is "Possession follows title". Therefore, whichever party is able to prove its title over the vacant site shall be deemed to be in possession of the same. In the present case, the burden was on the plaintiffs to prove that they were in possession of suit property. However, they have failed to bring any independent witness or any documentary evidence to prove it. The material and documents on record prove on the balance of probability that the defendant no.1 is the recorded Bhumidhar of the suit property in the revenue records. In view of discussion hereinabove, this Court is of the opinion that the plaintiffs have failed to prove on the balance of probability that the plaintiffs were in the possession or owner/bhumidhar of the suit property at the time of filing of the suit or that they were forcibly dispossessed on 14.12.2005 as alleged.
67. Ld. Counsel for the plaintiff has argued that defendant no.1 has committed violation of status quo order and he shall be accordingly dealt with.
68. It is argued on behalf of defendant that the application of the Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 24 of 27 plaintiffs under section 12 of Contempt of Courts Act is not maintainable and the status quo order is not clear and therefore, it can not be said that the defendant no.1 has committed any contempt of the order.
69. I have considered the submissions and gone through the judgment relied upon by the parties.
70. In the case in hand, this Court has already observed that the plaintiff has failed to prove on the balance of probability that they were in possession of the suit property on the date of filing of suit. The Ld. Vacation Judge vide order dated 24.06.2005 had directed the parties to maintain status quo. On the date of hearing also, defendant no.1 had submitted that plaintiff is not in possession of his part of the land and the parties were directed to maintain status quo in respect of their respective portions.
71. The status of the parties was not mentioned and it was not clarified as to which of the party is in possession of which portion of land.
72. Hon'ble Apex Court in the matter of Kishore Kumar Khaitan & Anr vs Praveen Kumar Singh on 13 February, 2006 has observed, "4. It is necessary to notice at this stage that in an original suit of this nature, it was not appropriate for the Additional District Judge to pass an order directing the parties to maintain status quo, without indicating what the status quo was. If he was satisfied that the appellant before him had made out a prima facie case for an ad interim ex parte injunction and the balance of convenience justified Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 25 of 27 the grant of such an injunction, it was for him to have passed such an order of injunction."
73. Similarly, in the matter of Exhibitors Syndicate Pvt. Ltd. vs Repose Properties Pvt. Ltd. And AIR 2006 Cal 323, Hon'ble High Court has observed as under:
"47. The learned trial Judge when rejecting the application under Order 39, Rule 4 filed by the defendant, appellant herein, did not consider the other application filed by the same defendant under Order 39, Rules 1 and 2 read with Section 151 of the Code of Civil Procedure inasmuch as the learned trial Judge failed to appreciate, when passing the order of status quo that status is to be decided first i.e. when passing status quo as regards the possession, it is to be decided as to who is in possession, otherwise the purport or implications of the order of status quo fails as observed by the Hon'ble Apex Court in its judgment Kishore Kumar Khaitan v. Praveen Kumar Singh"
74. In the present case, since the status of the parties was not specified in the order dated 24.06.2005, therefore, it can not be said that the defendant no.1 has committed violation of any interim order.
75. In view of discussion hereinabove, this Court holds that the plaintiffs have failed to prove its case on the balance of probability and accordingly, the issue no. 1 and 4 are decided against the plaintiffs and in favour of defendant no.1.
76. ISSUE NO. 3: Whether the suit has become infructuous in Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 26 of 27 view of the pendency of the proceedings under Section 26 of the Land Revenue Act? OPD
77. The onus to prove this issue was on the defendant. Vide order dated 28.02.2015, Ld. Appellate Court has already held that the suit of the plaintiffs is not barred under section 26 of DLR Act. Therefore, this issue is decided against the defendant and in favour of the plaintiffs.
78. Relief
79. In view of findings of this Court on issue no. 1 and 4, this Court holds that the plaintiffs are not entitled to any relief. The suit of the plaintiffs is dismissed. Parties to bear their own cost. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Pronounced in the open court (NEHA)
on 18th April, 2016 Civil Judge09, Central
Tis Hazari Courts, Delhi
Suit No. 70/15 Rameshwar Dass & Ors. Vs. Hukam Chand & Ors. Page No. 27 of 27