Delhi District Court
Madan Lal Arora vs Jagroshini on 5 February, 2024
IN THE COURT OF MS. MANU VEDWAN,
ADDITIONAL DISTRICT JUDGE-2, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
CS No. 476587/2015
CNR No. DLNE010001332010
Madan Lal Arora
S/o Late Govind Ram
R/o C-282, Vivek Vihar, Delhi. .....Plaintiff
Versus
1. Jagroshni
W/o Sh. Gaje Singh.
2. Gaje Singh
Defendant number 1 and 2 are residents of 72,
Gali No. 1, Kardam Puri Extension,
Delhi.
3. Government of NCT Delhi
Delhi Secretariat,
ITO, Delhi.
4. Islam (since deceased through his LRs)
(i) Sameena (wife)
(ii) Aslam (son)
(iii) Shanawaz (son)
(iv) Shahzad (son)
All residents of E-117/128, Sunder Nagri,
Delhi.
(v) Shahnaz (daughter)
W/o Sh. Sonu
R/o Gali No. 7, Rajeev Colony,
Near Kalander Chowk, Panipat, Haryana. ..... Defendants
CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 1 of 26
Date of Institution : 16.03.2010
Date of Reserving Judgment : 02.02.2024
Date of Judgment : 05.02.2024
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendants seeking the decree of recovery of possession alongwith mesne profits/damages and other consequential relief.
2. Brief facts, as stated in the plaint are that the plaintiff is the owner of the property ad-measuring 300 square yards of Khasra number 33/24/2, Shiv Block, Harsh Vihar, Village Mandoli, Shahdara, Delhi (hereinafter referred to as suit property). It is stated that the said plot/property was purchased by the plaintiff from its owner/cultivator/bhumidar Sh. Dharamvir Singh on 19.08.2003, through, registered Will and other notarized documents viz. General Power of Attorney, agreement to sell, affidavit, possession letter and receipt. It is further stated that these aforesaid documents were duly executed by Sh. Dharamvir Singh in favour of plaintiff and peaceful vacant possession of the property in question was also handed over. It is further stated that after purchasing the suit property, plaintiff had got constructed the boundary wall alongwith two rooms from his own funds and savings. It is further stated that after completion of construction, plaintiff had allowed his employee to use the same as their residence on rent. It is stated that accordingly plaintiff had retained the physical possession over the suit property. It is further stated that since, the date of purchasing of the aforesaid plot, plaintiff had remained in physical possession, but on 11.04.2006, when the employee/tenants were out of the CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 2 of 26 station, defendant had broken open the locks of main gate and took the illegal and unauthorized physical possession of the property in question. It is further stated that on the same day, one of the neighbours had informed the plaintiff.
It is further stated that plaintiff had then come to the suit property and asked the defendants about their capacity to take the possession of the suit property to which defendant had threatened the plaintiff. Plaintiff made call to the police and police control room officials came at the suit property to which defendants handed over the physical possession of the same to the plaintiff. It is further stated that plaintiff then locked the premises and left. It is further stated that on the next day that is, on 12.04.2006, at about 7.00 pm, plaintiff was present at his farm house in Village Mandoli and he came to know that defendants had again broken open the locks of the suit property. They took the forcible and illegal possession of the same. Plaintiff again reached the suit property, but this time, defendants manhandled the plaintiff and warned the plaintiff to execute the title deed in their favour. It is further stated that plaintiff again called the police officials who recorded the statement of both the parties, took the defendants in their custody. It is further stated that later on, police officials released the defendants without taking any action. It is further stated that aggrieved by the conduct of the local police, plaintiff had filed the written complaint to Police Station Nand Nagri, Deputy Commissioner of Police, North East District and Commissioner of Police, but no action was taken.
It is further stated that plaintiff had also filed the complaint under section 156 (3) of the Code of Criminal Procedure before the concerned Magistrate and he had ordered for filing of the First Information Report against the defendants. Accordingly, First Information Report bearing number 374/06 under section 323/448/452/506/457/34 of Indian Penal CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 3 of 26 Code was registered. Thereafter, on the orders of the Court, matter was referred to District Investigation Unit for investigation. It is further stated that during the investigation by District Investigation Unit, Investigating Officer had demarcated the property in question. It is further stated that the plaintiff had submitted his title deed to the concerned Investigating Officer, but, the defendants have not filed any title deed of the property in question or of Khasra number 24/2. It is further stated that the defendants had filed the civil suit against the plaintiff qua the Khasra number 24/2 and not 33/24/2 which makes it clear that defendants are in possession of the plot in question of the plaintiff without having right, title or interest. Plaintiff got served the legal notice upon the defendants, dated 03.12.2009, through registered Acknowledgment Due and Under Postal Certificate and asked them to hand over the peaceful vacant possession of the suit property, but of no avail. It is therefore requested that a decree of recovery of the possession and mesne profits/damages be passed in favour of the plaintiff.
3. A common written statement has been filed on behalf of defendant number 1 and 2 in which apart from denying the allegations/contentions of the plaintiff, it is stated by them that the plaintiff has concealed the true and material facts. It is stated that the defendant number 1 alongwith Smt. Rajni Tyagi had purchased a piece of land measuring 225 square yards out of the property bearing number 24/2, C-Block, Harsh Vihar in the revenue estate of Village Mandoli, Delhi-93. It is stated that the aforesaid property was purchased from Inderjeet S/o Sh. Bhagwan Singh, Sh. Bal Kishan S/o Sh. Rattan Singh and Sh. Janki Prasad S/o Sh. Shyam Lal, all residents of Village Mandoli for the consideration of rupees 1,20,000/- on 07.06.2001. It is stated that these three aforementioned persons had executed a General Power of Attorney, Will, receipt, etc. in favour of plaintiff on 07.06.2001. It is further stated that the property bearing Khasra number 24/2 is part of CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 4 of 26 33/24/2. It is further stated that Sh. Dharamvir Singh or any other his family members have no concern with Khasra number 24/2. It is further stated that the sale documents executed in favour of defendant number 1 and Smt. Rajni Tyagi were misplaced on 15.04.2006. Written complaint, dated 15.04.2006, in that regard had already been given by defendant number 2 being the husband of defendant number 1. It is further stated that out of the aforementioned Khasra number, one more person, namely, Raj Kumar had also purchased a piece of land measuring 100 square yards who had handed over the possession of the same to the defendant number 1 and Smt. Rajni Tyagi in the year 2001 to look after the same. It is further stated that one Sh. Dharamvir Singh had filed a Civil Suit for permanent injunction bearing number 377/2001 titled as Sh. Dharamvir Singh Vs. Inderjeet Singh against the said Inderjeet Singh, Bal Kishan, Janki Prasad and one Sh. Islam, but, the suit was dismissed vide order dated 06.07.2004.
It is further stated that in that suit, the Local Commissioner appointed by the Court had filed his report regarding the possession of the suit property by the defendant number 1 and Smt. Rajni Tyagi. It is further stated that plaintiff and his son Pankaj Arora had tried to dispossess the defendant number 1 and her co-sharer on 15.03.2006 and 14.04.2006 in collusion of Station House Officer of Police Station Nand Nagri. Defendant number 1 and Smt. Rajni Tyagi had filed a Civil Suit for permanent injunction bearing number 1109/2006. It is further stated that even otherwise, the suit of plaintiff is not maintainable as the suit property actually belongs to the Gram Sabha and only the Gram Sabha is entitled to file any proceedings against the defendants etc with regard to the suit property. It is further stated that the sale documents with respect to suit property executed by one Dharamvir Singh, on 19.08.2003, in favour of plaintiff are not registered and the same cannot be considered for the reason that as per section 17 of the Registration Act and Section 33 of CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 5 of 26 Stamp Act, the transaction alleged to be carried on between the plaintiff and Sh. Dharamvir Singh is sham.
It is further stated that the suit of the plaintiff is bad for non-joinder of proper and necessary party as one Smt. Rajni Tyagi as mentioned above is also necessary party as the defendant number 1 and the said Smt. Rajni Tyagi are co-owners of the suit property. It is further stated that on the alleged date of execution of document 19.08.2003, defendant number 1 and her co-owner Smt. Rajni Tyagi were in physical possession of suit property. It is further stated that no construction work was done by the plaintiff in the suit property as alleged, but, the construction in the suit property was done by the defendant number 1 and her co-owner Smt. Rajni Tyagi. It is stated that the plaintiff had mentioned false and frivolous story in his plaint as the physical possession of the suit property always remained with the defendants and one Smt. Rajni Tyagi. It is further stated that the plaintiff or his employee/tenant etc. never remained in possession of the suit property and also the physical possession was not taken by the defendant on 11.04.2006. It is further stated that the plaintiff is trying to grab the suit property by adopting illegal means and sources. It is therefore requested that the suit of plaintiff be dismissed.
Separate written statement was filed on behalf of defendant number 3 in which it is stated that the suit land is vested in Gaon Sabha, Mandoli vide case number F-238/87 dated 15.01.1998 as per revenue record. It is further stated that no mandatory notice under section 99 of Delhi Panchayati Raj Act, 1954 is served by the plaintiff therefore, the suit of the plaintiff is not maintainable as the land is covered under Delhi Land Reforms Act, 1954 and this Court has no jurisdiction to entertain the present suit. It is further stated that the subject property/suit property is part of Khasra number 33/24/2 (2-08) and the same is vested in Gaon Sabha land. It is further stated that the Khasra number 24/2 and Khasra CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 6 of 26 number 33/24/2 are two different Khasra numbers and are situated at a distance from each other as is evidence from Aks Sizra. Thereafter, defendant has denied all the contentions of the plaintiff raised by him in his plaint.
Written statement has also been filed on behalf of defendant number 4 in which it is stated that the defendant number 4 had purchased the suit property from Sh. Chhatar Singh on 20.07.2000 through registered General Power of Attorney, agreement to sell, receipt, etc. in the presence of marginal witnesses for a valid consideration amount. It is further stated that the said General Power of Attorney was duly registered with the Sub- Registrar, Seelam Pur, Delhi, vide its serial number 40689 in additional book number 4, volume number 6740 at pages number 135 to 136. The physical possession of the same was delivered by erstwhile owner to defendant number 4 on 20.07.2000. It is further stated that Sh. Chhatar Singh had purchased the suit property from Sh. Dharamvir Singh through General Power of Attorney, agreement to sell, receipt, etc on 19.04.1988. The said chain was also given to defendant number 4 by Sh. Chhatar Singh on 20.07.2000. It is further stated that after purchasing the suit property, defendant number 4 had erected the boundary wall thereon and also got fixed the main gate. It is further stated that due to need of money, defendant number 4 had sold 100 square yards out of 300 square yards to one Sh. Ram Kumar S/o Sh. Ilam Chand on 14.02.2001 and executed the registered General Power of Attorney, Will, agreement to sell, receipt, etc. It is further stated that the possession of the same also was handed over by the defendant number 4 to said Sh. Ram Kumar. It is further stated that the defendant number 4 had also sold a piece of land measuring 50 square yards out of remaining area measuring 200 square yards to defendant number 2 Sh. Gaje Singh on 28.03.2001 through registered General Power of Attorney, agreement to sell, etc. It is further stated that CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 7 of 26 the defendant number 4 had purchased back 100 square yards from Sh. Ram Kumar on 18.02.2009 through General Power of Attorney, receipt, etc in the presence of marginal witnesses for a valid consideration amount. It is further stated that the plaintiff had filed the present suit on the basis of forged and fabricated documents, whereas, plaintiff has no concern with respect to the suit property in any manner. It is further stated that Dharamvir Singh had already sold the suit property to Sh. Chhatar Singh and therefore, the Dharamvir Singh had no right to sale the same to the plaintiff.
It is stated that it seems that the plaintiff had prepared the forged and fabricated documents in collusion of Sh. Dharamvir Singh. It is further stated that the other defendants were permitted to look after the suit property some year back and in the garb of the same, these defendants had succeeded in getting the possession of the same illegally. It is further stated that the defendant number 4 also came to know that the said Sh. Dharamvir Singh had also sold the suit property for a valid consideration amount and the possession of the same was handed over by him to Sh. Chhatar Singh, however, the suit property belonged to Gram Sabha as per the revenue records. It is further stated that the defendant number 4 had already filed a suit for possession with regard to land measuring 250 square yards against the other defendants titled as Islam vs. Smt. Jagroshni & Ors. It is further stated that the sale documents with respect to suit property were executed by one Sh. Dharamvir Singh on 19.08.2003 in favour of plaintiff are not registered and the same cannot be considered as per the section 17 of the Registration Act and section 33 of the Stamp Act. It is therefore requested that the suit of plaintiff be dismissed.
4. Replication to the written statement of defendant number 3 was filed which is essentially a reiteration of the averments in the plaint and denial CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 8 of 26 of contentions in the written statement of defendant number 3. it is specifically stated that the possession of the suit land was never taken by the Gaon Sabha or SDM or any other government authority.
5. On the basis of pleadings, the following issues were framed:-
(i) Whether the plaintiff is the owner of suit property? OPP
(ii) Whether the defendants have taken the illegal and unauthorized physical possession of the suit property on 11.04.2006? OPP
(iii) Whether defendant number 1 and Smt. Rajni Tyagi are co-owners of the suit property? OPD (iiiA) Whether the suit of plaintiff suffers from non joinder of necessary party i.e. Smt Rajni Tyagi? OPD
(iv) Whether the plaintiff is entitled to recovery of the possession of the suit property?
(v) If issue number 1, 2 and 4 are decided in favour of plaintiff, whether the plaintiff is entitled to recovery of mesne profits and damages as prayed in the plaint.
(vi) Relief.
(vii) Cost.
It is pertinent to mention here that vide order dated 08.02.2011, on the application under Order XIV Rule 5 of Code of Civil Procedure moved on behalf of defendants, issue number 3 that is (iii) Whether defendant number 1 and Smt. Rajni Tyagi are co-owners of the suit property? OPD was amended and an additional issue that is (iiiA) Whether the suit of plaintiff suffers from non joinder of necessary party i.e. Smt Rajni Tyagi? OPD was framed.
6. Plaintiff has led his piece of evidence. Plaintiff has got examined CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 9 of 26 himself as PW1. He reiterated the facts as are mentioned by him in his plaint. Thereafter, he tendered his evidence by way of affidavit which is Ex.PW1/1 and relied upon the documents i.e. General Power of Attorney dated 19.08.2003 as Ex.PW1/A, duly registered deed of Will dated 19.08.2003 as Ex.PW1/B, possession letter dated 19.08.2003 as Ex.PW1/C, affidavit as Ex.PW1/D, copy of notice as Ex.PW1/F and copy of FIR number 374/06 as Mark A, PW1 was cross examined at length by Ld. Counsel for defendant number 1 and 2.
During the course of cross examination, PW1 was shown certified copy of the complaint case titled as Madan Lal Arora Vs. Gaje Singh and application under section 156 (3) Cr.PC which were then exhibited as Ex.PW1/D-1 and Ex.PW1/D-2 respectively. PW1 in his cross examination submitted that in the criminal case, he had not made/proved allegations against Smt. Jagroshni. PW1 has submitted that during the period of stay in the suit property, his employees had not got issued any ration/election card from the concerned department and as such there is no proof of their residence in the suit property. PW1 was also shown the certified copy of complaint filed by defendant Jagroshni & Anr. Vs. Pankaj Arora, Madan Lal Arora and concerned Station House Officer which is Ex.PW1/D3. The certified copy of statement given by PW1, dated 18.11.2010, is Ex.PW1/D4 and the order, dated 18.11.2010, is Ex.PW1/D5. PW1 has also submitted that neither he has disclosed the names of tenant in the plaint nor he is able to recollect the name of the person from whom he had purchased the bricks for the construction in the suit property. Ex.PW1/D6 is the certified copy of chargesheet filed by the police in the case bearing First Information Report 374/2006. PW1 has further submitted that he had not got prepared any Medico Legal Case (MLC) for the alleged beatings and neither he is able to give the details of articles of the tenants thrown by the defendants.
CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 10 of 26 In addition to the evidence concluded on 05.06.2013, PW1 has again led the evidence on 28.09.2015 by way of affidavit, dated 16.04.2015 which is Ex.PW1/2. PW1 was again cross examined at length by Ld. Counsel for defendant number 1, 2, 3 and 4. On 25.08.2022, PW1 in pursuance of order, dated 15.03.2022, again has tendered his evidence by way of affidavit which is Ex.PW1/A bearing his signatures at point A and B. PW1 has also relied upon the documents i.e. site plans as Ex.PW1/E and Ex.PW1/F. During the course of his cross examination, PW1 has submitted that document Ex.PW1/F was prepared by draughtsman and again said that it was prepared by his son Arun Arora. PW1 has also submitted that the number of suit property is C-1/382, Harsh Vihar, Delhi and that he has not mentioned the same in the plaint. PW1 has also submitted that he has already filed the site plan as Ex.PW1/DX with respect to the suit property. PW1 was also cross examined by legal heirs of defendant number 4.
Assistant Sub Inspector Devender Kumar was examined as PW2. PW2 produced the record of First Information Report bearing number 374/2006, Police Station Nand Nagri and the copy of same is Ex.PW2/1 (OSR). PW2 was cross examined by Ld. Counsel for defendant no. 1, 2 and 4.
Sh. Gopal Dutt, Record Keeper, Sub Registrar -IV, Seelampur, Delhi was examined as PW3. PW3 produced the summoned record. After seeing the original registered General Power of Attorney and original registered Will, already Ex.PW1/A and Ex.PW1/B. PW3 has stated that these are registered at their office and he produced the office record/register pertaining to the registration of the aforesaid documents (Original Seen and Returned). PW3 was cross examined by Ld. Counsel for defendant no. 1 and 2. During the course of his cross examination, PW3 has submitted that there is no document to demonstrate that Sh. Dharamvir was the CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 11 of 26 owner of suit property and he is not aware that whether any document pertaining to Dharamvir existed or not.
Sh. Sanjay, Junior Judicial Assistant, posted in the Court of Sh. Pankaj Arora, the then Ld. Metropolitan Magistrate, District Shahdara, Karkardooma Courts, Delhi was examined as PW4. PW4 produced the summoned record that is case file of First Information Report bearing number 374/06, Police Station Nand Nagri for the offence under section 448/506/34 of Indian Penal Code title State vs. Gaje Singh & Another. The certified copy of statement of Sh. Madan Lal Arora recorded in the said case is Ex.PW4/1, certified copy of statement of Sanjeev Kumar is Ex.PW4/2 and certified copy of statement of Sh. Gopal is Ex.PW4/3.
After closing of plaintiff's evidence, defendant number 1 has led her piece of evidence. Defendant number 1 had herself stepped into the witness box and deposed as D1W1. D1W1 has reiterated the same facts as are mentioned by her in her written statement. Thereafter, she tendered her evidence by way of affidavit which is Ex.D1W1/1 and relied upon the documents i.e. copy of plaint filed by Sh. Dharamvir vs. Inderjeet & Ors. as Mark A, copy of application for appointment of Local Commissioner as Mark B, the report of Local Commissioner as mark C, copy of order, dated 06.07.2004 alongwith decree as Mark D (colly), copy of General Power of Attorney executed by Dharamvir in favour of Ram Lal Morya as Mark E, copy of report of Kanoongo, dated 18.02.2008 as Mark F. D1W1 was cross examined at length by Ld. Counsel for plaintiff. During the course of her cross examination, D1W1 denied the suggestion put to her by Ld. Counsel for plaintiff that Khasra number 33/24/2 and Khasra number 24/2 are two different Khasras situated at different places and the same is reflected so in Farad Ex.D1W1/X1 and the document Mark F. It is submitted by D1W1 that Inderjeet, Balkishan, Janki and Roshni purchased the suit property from Dharamvir Singh.
CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 12 of 26 Assistant Sub Inspector K.N. Sasi Kumar from Police Station Shahdara was examined as DW2. DW2 deposed that the summoned record that is regarding complaint, dated 15.04.2006 made by Gaje Singh S/o Surjan Singh had been destroyed and the report in that regard is Ex.DW2/1 (colly).
Sh. Trilok Chand, Patwari, Sub Divisional Magistrate, Seemapuri, District Shahdara, Delhi was examined as DW3. DW3 deposed that the summoned record that is regarding Khasra bearing number 33/24/2, Village Mandoli, Nand Nagri, Delhi-110093 and the Khatoni and Khasra Girdawari are Ex.DW3/1 (colly) (OSR). DW3 further deposed that as per records, the said Khasra vests in Gram Sabha from under section 81 of Delhi Land Reforms Act from 15.01.1988. DW3 was cross examined by Ld. Counsel for plaintiff. During the course of his cross examination, it is submitted by DW3 that he has no knowledge that the suit property which stood vested in the Gram Sabha on 15.01.1988 had already been restored to the concerned Bhumidar in the year 1989. DW3 further deposed that as per their record, the suit property still vests in Gram Sabha.
Sh. Sunil Manchanda, Judicial Assistant, Record Room, Civil, Karkardooma Courts, Delhi was examined as DW4. DW4 produced the summoned record of suit number 63/03/01 titled as Dharamvir Vs. Inderjeet & Ors. Decided on 06.07.2004 by the Court of Sh. J.P. Nahar, Ld. Civil Judge, Delhi. Copy of plaint is Ex.DW4/A, the application moved on behalf of defendant Jagroshni on 08.11.2001 under Order I Rule 10 read with section 151 Code of Civil Procedure is Ex.DW4/B, the report of Local Commissioner Sh. S.S. Parasar, Advocate, dated 12.11.2001 is Ex.DW4/C, judgment passed in the said suit on 06.07.2004 is Ex.DW4/D and the decree dated 06.07.2004 is Ex.DW4/E. Original record seen and returned.
Sh. Sanjay, Ahlmad/Junior Judicial Assistant from the Court of Sh. CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 13 of 26 Pankaj Arora, the then Ld. Metropolitan Magistrate, Shahdara District, Karkardooma Courts, Delhi was examined as DW5. DW5 produced the summoned record of case bearing First Information Report number 374/2006 of Police Station Nand Nagri. The certified copy of chargesheet is already exhibited as Ex.PW1/D6 (OSR).
Smt. Sameena W/o Late Islam was examined as DW6. DW6 has reiterated the same facts as are mentioned by her husband in his written statement. Thereafter, DW6 tendered her evidence by way of affidavit which is Ex.DW6/1 and relied upon the documents i.e. copy of General Power of Attorney dated 19.04.1988 as Ex.DW1/A, copy of agreement to sell as Ex.DW1/B, copy of receipt of rupees 85,000/- as Ex.DW1/C, copy of General Power of Attorney executed by Chhatar Singh in favour of Islam, dated 20.07.2000 as Ex.DW1/D, copy of agreement to sell as Ex.DW1/E, copy of Will as Ex.DW1/F, copy of receipt of rupees 3,50,000/- as Ex.DW1/G, copy of agreement to sell dated 20.07.2000 as Ex.DW1/H, copy of General Power of Attorney executed by Sh. Ram Kumar in favour of Islam dated 18.02.2009 as Ex.DW1/I, copy of receipt of rupees 2,25,000/- as Ex.DW1/J, copy of General Power of Attorney in favour of Jagroshani as Ex.DW1/K, copy of agreement to sell as Ex.PW1/L and the copy of receipt as Ex.DW1/M. DW6 had filed the certified copy of the documents i.e. Ex.DW1/A to Ex.DW1/K on record and stated that the same be read in evidence as Ex.DW6/A to Ex.DW6/K. The certified copy of the documents Ex.DW1/L and Ex.DW1/M were not filed on record. DW6 was cross examined by Ld. Counsel for plaintiff. During the course of her cross examination, it is submitted by DW6 that she had not visited the office of the sub- registrar on 20.07.2000 at the time of execution of General Power of Attorney. DW6 has further submitted that she had no personal knowledge about the previous chain of titled documents and the contents of the documents executed on 14.02.2001 and CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 14 of 26 28.03.2001 and 18.02.2009. DW56 has further submitted that she had not seen the suit property and therefore she was not able to disclose the properties adjacent to it, on it's north, south, east or west sides.
7. I have heard the arguments advanced on behalf of parties and perused the case file carefully. Written submissions have also been filed on behalf of both the parties.
Apart from reiterating the facts mentioned in the plaint/replication and the testimony of witnesses. Plaintiff in his written submissions has also discussed the written statement filed on behalf of defendant number 1, 2 and 3 which are not reproduced to avoid repetition. Thereafter, the issues have been reproduced. It is stated that on the application of Sh. Islam under Order I Rule 10 Code of Civil Procedure, he was arrayed as defendant number 4 vide order dated 18.11.2014, the contentions of Mohd. Islam have already been discussed before. It is further stated that plaintiff had led his detailed evidence and nothing material came out in the cross examination conducted by defendant number 1 and 2. It is further stated that the cancellation report was filed in First Information Report bearing number 374/2006 by the Investigating Officer. On the objections raised by the plaintiff, Learned Metropolitan Magistrate had observed that the demarcation was carried out with the help of Revenue Officer which revealed that the plot of the land measuring 300 square yards in Khasra number 33/24/2 is the plot on which the encroachment had been alleged. During the course of investigation, it was revealed that Jagroshni had produced the documents of 50 square yards executed by Islam who had allegedly purchased the same from Sh. Chhatar Singh. It is stated that said Chhatar Singh was not found to be existed in the concerned area.
It is further stated that Dharam Bir Singh was the owner of Khasra number 33/24/2 and he had executed the documents qua the suit property CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 15 of 26 including the General Power of Attorney, etc. on 19.08.2003 in favour of Sh. Madan Lal Arora. He had detailed out the boundary wall of the plot of 300 square yards area and handed over the vacant possession to the plaintiff. It is stated that the judgment/orders relied upon by the defendants was in respect of Khasra number 24/2. After coming to know that Islam was not the owner of the 50 square yards out of property bearing number 24/2, defendants returned back the General Power of Attorney, received back the bayana amount and claimed to have purchased the same from Inderjeet etc. It is further stated that PW1 had additionally got himself examined, cross examined on 25.08.2022 and 03.11.2022. PW1 led evidence which proves his case, while the defendant number 2 had never appeared in the witness box and the evidence led by the defendant number 1 is irrelevant. It is further stated that the issue that Khasra number 24/2 is a part of Khasra number 33/24/2 is contrary to the written statement of defendant number 3. It is further stated that the suit property basically falls in Khasra number 33/24/2 and plaintiff has proved his ownership by producing the relevant documents, while the defendants have not placed any documents on record. It is further stated that admittedly, the possession of property in question was never taken by the Gram Sabha. Thereafter, it is stated by the plaintiff that Government of NCT of Delhi, vide order dated 12.12.2007 notified therein define the private land. The National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Act, 2019 No. 45 of 2019 given assent by Hon'ble President of India on 11.12.2019 and published in Gazette no. 12.12.2019, provides rights in property on the basis of General Power of Attorney and other documents located in unauthorised colonies. It is further stated that the Village declared as Urban Village: Mandoli Fazilpur North-East No. F.9(2)/66/Law/Corpn.dt.28.5.1966 133021/3/70-LI dt. 20.8.1974 and Mandoli Kachi North-East TCO/82/47 dt. 23.04.82 No. 9(4)/89-L&B dt. CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 16 of 26 5.10.89. Thereafter, Ld. Counsel for plaintiff has relied upon the judgments of Hon'ble High Court of Delhi titled as Vaneeta Khanna vs. Rajeev Gupta, reported 2015 X AD (Delhi) 469 and Ramesh Chand vs. Suresh Chand, reported 2012 III AD Delhi 493 and stated that in light of preponderance of probabilities, he has proved his case. It is also stated that the defendants have no right to defend the suit as the land vested in Gram Sabha.
Written submissions on behalf of defendant number 1 and 2 have also been filed in which apart from reiterating the contents of written statement filed by them, it is stated that during the pendency of the present suit, defendant number 3 and 4 were impleaded as parties. It is stated that the plaintiff has basically relied upon the documents viz. General Power of Attorney, registered deed of Will, both dated 19.08.2003 exhibited as Ex.PW1/A and Ex.PW1/B alongwith possession letter, dated 19.09.2003 and affidavit exhibited as Ex.PW1/C and Ex.PW1/D respectively. It is stated that it is not understandable neither explained that the plaintiff has not relied upon the agreement to sell, dated 19.08.2003 allegedly executed by Sh. Dharamvir Singh in favour of plaintiff. It is also stated that these documents do not make anybody owner of the property especially in the light of Registration Act and Stamp Act. It is further stated that the said Dharam Vir Singh had also filed a Civil Suit for permanent injunction against Inderjeet & Ors. vide CS number 377/2001 in which Local Commissioner had already opined that defendant number 1 and Smt. Rajni Tyagi were in possession of the suit property. Therefore, the aforementioned suit was dismissed by the concerned Court on 06.04.2007 which is Ex.DW4/D. It is stated that in that suit, Dharam Vir was never stated to be in the possession of the suit property. It is further stated that in the First Information Report bearing number 374/2006 registered by the plaintiff, defendant number 1 was discharged by the concerned Court as no CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 17 of 26 offence was committed by her as per the Court. It is further stated that the concerned Investigating Officer has specified that the property bearing number 33/24/2 and 24/2 situated in the revenue estate of Village Mandoli in First Information Report bearing number 374/2006 is the same property. It is further stated that plaintiff had filed two site plans of the property in the question for the reasons best known to him. It is further stated that as per the report of the Patwari, the property in question is vested in the Gram Sabha since 1988 and therefore, as according to them, also the property does not belong to the plaintiff.
8. After recording the gist of evidence led by both the parties, let me record the findings on each issue.
Issue number 1, that is, whether the plaintiff is the owner of suit property? issue number 2, that is, whether the defendants have taken the illegal and unauthorized physical possession of the suit property on 11.04.2006? issue number 3, that is, whether defendant number 1 and Smt. Rajni Tyagi are co-owners of the suit property? issue number 3A, that is, whether the suit of plaintiff suffers from non joinder of necessary party i.e. Smt Rajni Tyagi? and issue number 4, that is, whether the plaintiff is entitled to recovery of the possession of the suit property? The onus to prove issue number 1, 2 and 4 was on the plaintiff and the onus to prove issue number 3 and 3A was on the defendants.
It is to be noted that plaintiff has to establish his case and he will not automatically succeed merely because of the failure of the defendant to establish his/her defence. A party has to plead the case and produce/adduce sufficient evidence to substantiate his/her submissions made in the plaint. Further, burden of proof in cases of recovery of possession as mentioned in Section 101 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act) specifies that whoever desires any Court to give judgment as to any CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 18 of 26 legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Section 102 provides upon whom burden of proof lies. It has been provided that the burden of proof in a suit or proceeding lies on that person who would fail, if no evidence at all where given on either side. Section 103 of the Act provides that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person, and lastly Section 104 of the Act provides that the burden of proving any fact necessary to be proved in order to enable any person to give evidence of other fact is on the person who wishes to give such evidence.
Further, there is an essential distinction between burden of proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. Also, whether a civil or a criminal case, the anvil for testing of "proved", "disproved" and "not proved", as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the evaluation of the result drawn by the applicability of the rule, which makes the difference. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. In such a suit, plaintiff has to create a high degree of probability so as shift the onus on the defendants. Thereafter, the result of the suit depends upon the evaluation of the result drawn by the applicability of the rule. Reliance is placed upon A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136 and R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple & Anr, (2003) 8 SCC 752.
Basically, the legal burden is the burden of proof which remains CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 19 of 26 constant throughout a trial. The incidence of the burden on different issues may lie in different places, and issues may rise or fall according to the facts proved, but on analysis of issue the legal burden will not change it is the burden of establishing the facts and contentions which will support a party's case. If at the conclusion of the trial one has failed to establish these to the appropriate standard, one will lose. The incidence of this burden is usually clear from the pleadings, it usually being incumbent upon the plaintiff to prove what he contends. The evidential burden, however, may shift from one party to another as the trial progresses according to the balance of evidence given at any particular stage; this burden rests upon the party who would fail if no evidence at all, or no further evidence, as the case may be, was adduced by either side.
Indian Evidence Act also works in consonance with this universally acceptable scheme. Until, such burden is discharged the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. The burden of proof is of importance where by reason of not discharging the burden which was put upon it, a party must eventually fail. The initial burden of proving a prima facie case in his favour is cast on the plaintiff, when he gives such evidence as will support a prima facie case, onus shifts on the defendants. A party has to plead the case and produce / adduce sufficient evidence to substantiate his submissions made in the plaint and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. Reliance is placed upon Life Insurance Corporation of India v Ram Pal Singh Bisen, (2010) 4 SCC 491, Ram Bhajan v Abdul Rahman, AIR 1997 AII 17, Rajasthan State Road Transport Corporation v Bajrang Lal, (2014) 4 SCC 693. Also, it has been observed in judgment titled as Maria Margarida Sequeria Fernandes & Ors. vs. Erasmo Jack de Sequeria(Dead) through L.Rs., Civil Appeal No. CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 20 of 26 2968/2012 by Hon'ble Supreme Court that in suit for recovery of possession only when the title is prima facie established ,the person who is resisting the title holder's claim will come into the picture to lead his part of evidence justifying his possession or otherwise.
Therefore, in view of abovementioned discussion, firstly and foremostly it is the plaintiff who has to prove his right/title/interest /ownership over the suit property in light of preponderance of probabilities/degrees of probabilities and thus it can be safely said that plaintiff is under an obligation to discharge aforesaid burden of proof. Only then the onus shifts on the defendant to save/justify/legally proved his possession with respect to the suit property. With respect to plaintiff here, he has basically relied upon documents viz. General Power of Attorney Ex.PW1/A, registered deed of Will Ex.PW1/B, possession letter Ex.PW1/C and affidavit Ex.PW1/D to prove his ownership over the suit property. On the basis of these documents, plaintiff is claiming ownership over the suit property. There is no other document apart from these four documents relied upon by the plaintiff to establish/prove his alleged ownership over the suit property. Plaintiff has miserably failed to produce the attesting witness of these documents and no reasonable explanation offered for his absence. No previous chain of the documents pertaining to the suit property or any document pertaining to the ownership of Dharamvir Singh has ever been filed by the plaintiff. Qua, the Will, it needs to be clarified here itself that the Will executed by Sh. Dharamvir Singh in favour of plaintiff cannot be said to be at par with the Will which is usually executed by the executant containing the declaration of the devolution of the interest/shares in the property to their own legal heirs.
Moving further, that too in light of the fact that admittedly, suit property belongs to Gram Sabha. It is worthwhile to mention that Section 154 of the Delhi Land Reforms Act, 1954 has clarified the aspect of the CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 21 of 26 Gram Sabha land. It is specifically made clear in that section that except the type of the properties provided in that section, all other properties would vest in Gram Sabha after the commencement of the Act. Though a declaration of the right of a person qua these properties can be sought without any period of limitation. Reliance is placed upon Gaon Sabha & Anr. vs. Nathi & Ors, Appeal (Civil) No. 3105/1997 decided on 23.03.2004. Plaintiff has never agitated the fact/brought the fact before the Court that he or his predecessor-interest had ever claimed/stressed their right before the concerned revenue authority for including/mutating/challenging the status of the land. Though, plaintiff is claiming that in respect of suit property, The National Capital Territory of Delhi (Recognition of Property Rights of Residents in Unauthorised Colonies) Act, 2019 No. 45 of 2019 and in Delhi, the Govt, DDA including DSIDC, MCD, etc. notified Policy decisions, permitted the conversion of Lease hold rights in Plots allotted by it and that the suit property has now been accordingly urbanized, but, the link of alleged urbanization and proof of ownership/ownership of plaintiff has never been explained either during the course of oral arguments or even in written submissions. Most importantly, plaintiff has miserably failed to file any proof of the payment/movement of claimed/alleged consideration. There is absolutely no evidence on record that consideration amount was ever available with the plaintiff during the relevant period. No receipt or any other document ever filed by the plaintiff in which acknowledgement qua the handing over/receiving of alleged amount ever mentioned.
Even otherwise, time and again, Hon'ble Supreme Court in wide array of cases reiterated that The Registration Act, 1908 clearly provides that a document which requires compulsory registration under the Act, would not confer any legally enforceable right to be pressed before the Court of the law. Thus, law is well settled that no right, title or interest in CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 22 of 26 immovable property can be conferred without a registered document. Embargo, put on the registration of the documents would not override the statutory provision so as to confer the title on the basis of unregistered documents. Reference may be made on Suraj Lamp & Industries Pvt. Ltd. vs. State of Haryana & Anr, 183 (2011) DLT 1 (SC), Ameer Minhaj vs. Deirdre Elizabeth (Wright) Issar & Ors., (2018) 7 SCC 639, Balram Singh vs. Kela Devi, Civil Appeal No. 6733/2022 and M/s. Paul Rubber Industries Private Limited vs. Amit Chand Mitra & Anr., SLP (C ) No. 15774/2022. Further, recently, Hon'ble Supreme Court of India has held in judgment title as Shakeel Ahmed Vs. Syed Akhlaq Hussain, Civil Appeal No. 1598/2023, decided on 01.11.2023 "....that the argument advanced on behalf of the respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on non-registration emanates from the statues, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments...." It needs to be emphasized that the relevant provisions qua the Transfer of Property Act/Stamp Act/Registration Act viz. Section 53A and Section 54 of The Transfer of Property Act, 1882, Section 27 of the Stamp Act, 1899, Section 17 and Section 49 of The Registration Act, 1908 have not been followed and no documents in confirmation of these sections have been produced by the plaintiff. The judgment titled Ramesh Chand vs. Suresh Chand, 188 (2012) DLT 538 and Vaneeta Khanna vs. Rajeev Gupta, reported 2015 X AD (Delhi) 469 relied upon by the plaintiff qua the aspect that even unregistered documents may be used for establishing the ownership over the property necessarily required the complete set of documents including the General Power of Attorney as well as receipt alongwith the chain of documents pertaining to the property. Plaintiff here has not filed any chain CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 23 of 26 of documents or not led any evidence with respect to the movement of consideration between the parties. The requirement as per these judgments is the presence of agreement to sell, General Power of Attorney, receipt, affidavit and Will which all have to be executed contemporaneously. Only on the presence of these documents, the true nature of transaction between parties would be culled out, which is not case here. Plaintiff has also claimed that he had raised the construction over the suit property and his tenants used to be in the possession of the same. It is to be noted that neither any tenant/employee has ever appeared before the Court nor any evidence led with respect to the raising of the construction as alleged by the plaintiff.
Again, it has been observed by the Hon'ble Supreme Court of India in judgment titled as P. Kishore Kumar vs. Vittal K. Patkar, Civil Appeal No. 7210/2011, decided on 20.11.2023 that "....Contention advanced on behalf of the plaintiff that through the record of rights the plaintiff has established his title by a preponderance of probabilities is not sustainable. As noted above, the plaintiff failed to produce a single document of title in respect of the suit property. In a dispute with respect to determination of title, merely pointing out the lacunae in the defendant's title would not suffice. Having instituted the suit for recovery of possession, the burden of proof rested on the shoulders of the plaintiff to reasonably establish the probability of better title, which the plaintiff in the present case, has manifestly failed to do...." Further, it has been observed in Union of India and Ors. vs. Vasavi Co-operative Housing Society Limited and Ors, (2014) 2 SCC 269 that "....in a suit for declaration of title, the burden always lies on the plaintiff to make out and establish a clear case for granting such a declaration and the weakness, if any, of the case set up by the defendants would not be a ground to grant relief to the plaintiff...." In Jagdish Prasad Patel (Dead) CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 24 of 26 thr. LRs. and Ors. vs. Shivnath and Ors, (2019) 6 SCC 82, it was observed that "....In the suit for declaration for title and possession, the plaintiffs- respondents could succeed only on the strength of their own title and not on the weakness of the case of the defendants-appellants. The burden is on the plaintiffs-respondents to establish their title to the suit properties to show that they are entitled for a decree for declaration...." In Somnath Burman vs. S.P. Raju and Ors, (1969) 3 SCC 129, it was observed that "....possession can be regarded as a better title against all, except the true and lawful owner...." Therefore, in the totality of circumstances and in view of above discussion, it can be safely said that in the absence of relevant title documents/attesting witness/previous chain of documents/and aboveall receipt of consideration, plaintiff has not been able to discharge the burden of proof lying upon him. The title of suit property as is required by law to be proved has not been proved by plaintiff and thus, the burden of proof lying upon plaintiff in light of preponderance of probabilities/degree of probabilities has not been discharged. Thus, there is no question of shifting of onus on the defendant. Accordingly, in view of totality of above discussion, all these issues are decided against the plaintiff.
Issue number 5, that is, if issue number 1, 2 and 4 are decided in favour of plaintiff, whether the plaintiff is entitled to recovery of mesne profits and damages as prayed in the plaint? Issue number 6, that is, relief and issue number 7, that is, Cost. The onus to prove all these issues is upon the plaintiff. As, issues bearing numbers 1, 2 and 4 have already been decided against the plaintiff, these issues are also decided against the plaintiff.
9. In the view overall circumstances and also in light of foregoing discussion, the suit of the plaintiff is dismissed. Parties to bear their own CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 25 of 26 costs. Decree sheet be prepared accordingly.
10. File be consigned to Record Room after necessary compliance.
(Manu Vedwan) Addl. District Judge-02 (North East District) Karkardooma Courts, Delhi.
Announced in the open court today i.e. 05th February, 2024 CS No. 476587/2015 Madan Lal Arora Vs. Jagroshni & Ors. Page No. 26 of 26