Delhi District Court
Sh. Ram Sijore vs Sh. Rajesh Jain on 7 February, 2020
THE COURT OF SH. NITISH KUMAR SHARMA
CIVIL JUDGE01 ( WEST), TIS HAZARI COURTS, DELHI
CS SCJ No. 609092/2016/13
Date of Institution : 28.09.2013
Date of reservation of judgment : 06.02.2020
Date of pronouncement of Judgment : 07.02.2020
Sh. Ram Sijore
son of late Shri Khemai Ram,
resident of 244/245, near Water Tank
Nehru Nagar, Gali NO. 6, Anand Parbat
New Delhi08.
......Plaintiff
vs
1. Sh. Rajesh Jain
S/o Sh. J.B. Jain
R/o C51, Shakti Nagar Ext.
Delhi52.
2. Sh. Satish Malik
S/o Not Known
Police Inspector of Delhi Police
presently at Anand Parbat, P.S. Delhi.
................Defendants
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
PLAINTIFF'S VERSION
1. Facts which necessitated the institution of present suit, in brief are : SCJ No.609092/16/13 Ram Sijore vs Rajesh Jain Page no. 1 / 15
(a) That plaintiff claimed that he is sole owner and in possession of property bearing No. 244/45, Gali No. 6, near Water Tank, Nehru Nagar, New Delhi8 measuring 75 sq. yds. length 44 ft and wideth 20 ft West side and 11 feet East side. having the boundary walls I.e House of Durg Viajay (East),: Gali (West),Plot (South) and Gali award barat ghar (North) hereinafter referred to as 'suit property'.
(b) That the defendant No. 1 had filed a suit against the plaintiff, his son and his wife to restrain them and to capture the property by erroneously describing it as plot No. 244/245. The said defendant No. 1 also moved an application for temporary injunction against the plaintiff, his son and his wife which was dismissed in the court on 03.09.2013. After dismissal of the application, the defendant No. 1 alongwith his associates and the defendant No. 2 forcibly entered into the suit property of the plaintiff and threatened them to dispossess them from the suit property. On 23.09.2013, the defendant No. 2, came with his associates on the aid and instigation of defendant No. 1 and forcibly restrained the plaintiff from entering into the said suit property of the plaintiff. In inquiry, the plaintiff came to know that the defendant No. 2 is working as Inspector in Delhi Police and is presently been posted as PS Anand Parbat, New Delhi.
(c) That 24.09.2013, the plaintiff filed an application for grant of anticipatory bail apprehending his arrest by the police of PS Anand Parbat, Delhi. In reply to that application, the police has filed that the plaintiff is not wanted in any case and, therefore, the application was dismissed on 25.09.2013.
(d) That on 26.09.2013, again the defendant No. 2, on instigation SCJ No.609092/16/13 Ram Sijore vs Rajesh Jain Page no. 2 / 15 and abatement of the defendant No. 1 came to the suit property and publicly made caste aspersions against the plaintiff and humiliated him and restrained the plaintiff from entering into his house. The suit property consist of one hall and two rooms one is on the Eastern Side having area 11' X 8' and on the south West corner there is a room of 5 Sq. yards and there are three gates in the suit property for ingress and egress. The defendants have no right, title and interest over the suit property. Hence, the present suit.
2. By virtue of the present suit plaintiff has prayed for :
(a) A decree of permanent injunction be granted to the plaintiff, against the defendant, their agents, servants and whosoever on behalf of the defendants from dispossessing or interfering in the peaceful use and occupation and possession of the suit property in any manner.
(b) Any other or further orders as the court may deem fit.
DEFENDANT'S VERSION
3. Litigation by its very nature has two side to a story. To give his version, written statement has been filed on behalf of defendant no.1 wherein it is stated that
(a) That the present suit is a counter blast to the suit filed by the defendant No. 1 against the plaintiff which is pending before the court of Ld. Civil Judge, Delhi vide suit No. 136/2013 regarding the same property in question and the nature of the case is same, hence, the present suit is liable to be dismissed u/s 10 & 12 of CPC.
(b) That the plaintiff has no locusstandi to file the present suit as he is neither the owner nor in possession of the suit property. Actually, the suit property stands vested in DDA and the defendant is in the peaceful SCJ No.609092/16/13 Ram Sijore vs Rajesh Jain Page no. 3 / 15 possession thereof, as he has been using the suit property as his godown since the date of handing over the possession by the erstwhile person to the defendant No. 1 since the year 1990.
(c) That defendant No. 1 is the owner and in possession of a tin shed godown built upon a plot measuring 75 Sq. Yards, comprised in the Revenue Estate of village Chowkri Mubarikabad, Anand Parbat, Delhi now commonly known as property bearing No. 244/245, Gali No. 6, Near Water Tank, Nehru Nagar, Anand Parbat, New Delhi having been purchased in the year 1990.
(d) That defendant No. 1 had allowed the plaintiff to run a small tea stall over the suit property in view of his services to look after the godown of the defendant and the plaintiff through a verbal settlement, handed over the stall to the defendant No. 1 on 20.05.2012 after the receipt of the consideration from the defendant No. 1 and the plaintiff went to his village at Bharatpur permanently.
(e) That on 06th June, 2012, the son of the plaintiff Hari visited the suit property and took the forcibly entry and threatened the defendant No. 1 to hand over the possession of tea stall as plaintiff had given the possession wrongly. Prior to 06.06.2012, the son of the plaintiff and his wife Smt. Gyanmati have been raising threats to the defendant No. 1.
(f) That on 06.12.2012, a case FIR No. 271/2013, under Section 448/380/454/34 IPC in PS Anand Parbat was registered against the plaintiff and the goods/articles belongings to the defendant No. 1 have been recovered from the plaintiff as the plaintiff and his wife family members have trespassed the suit godown by breaking down the lock and has stolen the articles/goods belongings to the defendant No. 1. The SCJ No.609092/16/13 Ram Sijore vs Rajesh Jain Page no. 4 / 15 plaintiff has trespassed forcibly, illegally and without due process of law during the pendency of the above civil suit. A kalandra u/s 145/146 Cr.P.C. has been prepared in this regard.
4. Written statement was filed by the defendant No. 2, wherein it is stated
(a) That the plaintiff has wrongly impleaded the defendant No. 2 in the present suit and defendant No. 2 has nothing to do with the disputes which is of purely civil in nature.
(b) That plaintiff has not sought any relief against defendant no.2 nor any cause for preferring the presuit has ever arisen against defendant no.2. Defendant no.2 is respondent for the maintaining the law and order in the area and in pursuant to said, defendant no.2 acted in accordance with law and referred the matter before Ld. Subdivisional Magistrate U/s 145/146 for the adjudication of claim of possession of parties.
(c) That on 24.09.2013, complaint being DD No. 11A qua forcibly occupation of the godown was received and subsequently the information qua dispute of forcible possession of the godown was received from the PCR in the PS Anand Parbat. The said information was duly registered as DD Entry and subsequently it was marked to ASI Ajeet Singh for the investigation in accordance with law. In pursuant to the assignment of the investigation of the supra DD entry, the said official reached at the place of occurrence and met the person one Shri Ram Prasad S/o Barsati Prajapati, R/o Motia Khan, Paharganj, who had made the complaint qua forcible possession of the godown to the PS by making the phone call and stated that he is working with one Shri Rajesh Jain i.e. defendant No. 1 and who is in the possession of his godown situated at SCJ No.609092/16/13 Ram Sijore vs Rajesh Jain Page no. 5 / 15 suit property. When he came to the godown was opened and new floor was being laid and he further stated that construction of the wall in back side of the portion of godown was freshly done and he had leveled the allegations upon the plaintiff that godown of his employer i.e. plaintiff was trespassed by the plaintiff. During the course of investigation, it was revealed that in a portion of the godown, a small shop with a separated opening was occupied and operated by the plaintiff. Apart from the above construction, the fresh construction was going on at the site in question and wall had been constructed to divide the godown into the two parts. The rear part of the godown had bee provided a new opening from the back side. The fresh construction and alternations in the structure / layout plan of the godown were easily discernible. In the year portion, large number of sacks filed with the chemical were stacked up. The said Ram Prasad has claimed that the sacks to be of his employer i.e. defendant No.
1. During the course of inquiry, the statement of said Ram Prasad as well as plaintiff were recorded. However, both controverted the statement of each other in regard to the possession of the godown. Thereafter, statement of the neighboring persons were also recorded during the course of the inquiry by the said official. During the course of investigation, plaintiff has submitted a copy of the order passed by the court of Shri Pranjal Aneja, CJ, Delhi in respect to the property in question. However, in the order, it was transpired that the application u/o 39 Rule 1 and 2 CPC was dismissed by the court and disputes qua the possession of the property in question was not determined. The circumstances were such that it reflected a dispute over the possession and the presence of fresh construction coupled with the sacks containing some chemical in the rear SCJ No.609092/16/13 Ram Sijore vs Rajesh Jain Page no. 6 / 15 portion of the godown casted a doubt on the conduct of the defendant No.
1. The whole area was got photographed and it was decided to refer the matter to Ld. SDM under Section 145/146 of Cr.P.C. for adjudication qua the disputes of the possessions of the party. Accordingly, the kalandra u/s 145/146 Cr.P.C. was prepared vide DD No. 62B dated 24.09.2013 and subsequently it was filed before the Ld. SMD, Patel Nagar on 27.09.2013.
(d) That defendant No. 2 has acted under the provisions of the law and got the case investigated in professional manner. Due to the dispute regarding possession of the suit property. There was a likelihood of breach of peace of tranquility in the area. Therefore, in order to establish the peace and tranquility, the kalandra under the provisions contained in 145/146 Cr.P.C. was processed to the Ld. SDM, Patel Nagar for adjudication. In this way, defendant No. 2 has discharged his official duty as per the mandate of the law. Therefore, the impleading of the defendant No. 2 in his personal capacity is untenable and is liable to be dismissed.
(e) That in pursuant to the incident reported to the police on 24.09.2013, the defendant No. 1 had filed a complaint under Section 156(3) Cr.P.C. before the Ld. Court of MM and Ld. court pleased to direct the police to file status report for 12.12.2013. Since the allegation leveled in the complaint constituted a cognizable office, police has registered FIR being No. 271/2013 u/s 448/380/454/34 IPC. During the course of investigation, plaintiff was arrested in the supra case on 23.12.2013 and was produced before the Ld. Concerned court on 24.12.2013. Ld. court pleased to remand the plaintiff in judicial custody. Plaintiff was released on bail on 28.12.2013 vide the order of Ld. court.
SCJ No.609092/16/13 Ram Sijore vs Rajesh Jain Page no. 7 / 15 Prayer is made for dismissal of suit.
5. Replication has been filed by the plaintiff wherein the averments made in the plaint are reiterated and contentions raised in the W.S are denied.
ISSUES
6. Thereafter, vide order dated 07.07.2014, following issues were framed :
(i) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP.
(ii) Whether the suit is liable to be stayed under Section 10 r/w Section 12 CPC? OPD.
(iii) Relief PLAINTIFF'S EVIDENCE
7. In order to prove his case, plaintiff examined himself as PW1 and tendered in evidence his duly sworn in affidavit which is exhibited as Ex.PW1/A, reiterating the contents of the plaint. In his testimony the following documents are exhibited :
1. Site plan PW1/1
2. Copy of Order dated 03.09.2013 Mark A
3. Copy of Order dated 25.09.2013 Mark B
4. Registered GPA, agreement to sell Ex. PW 1/ 4 affidavit
5. receipt dated 05.6.2002 Mark C
6. Ration card Ex. PW 1/5 (OSR)
7. Water connection document Ex. PW 1/6
8. Voter I card Ex. PW 1/7 ( OSR) SCJ No.609092/16/13 Ram Sijore vs Rajesh Jain Page no. 8 / 15
9. Copy of adhar card Ex. PW 1/8 (OSR)
10. Electricity demand note Ex. PW 1/9 ( OSR)
8. Besides himself plaintiff has also examined two more witnesses
1. Sh. Shiv Nath As PW2
2. Sh. Uday Raj as PW3 The said witnesses were crossexamined and plaintiff's evidence was thereafter closed, vide order dated 04.03.2017.
DEFENDANT'S EVIDENCE
9. On the other hand, in order to prove her case defendant got himself examined as DW1 (Rajesh Jain) and tendered in evidence his duly sworn in affidavit, which is exhibited as Ex.DW1/1. In his testimony, following documents were exhibited :
1. Receipt dated 26.3.1990 Ex. DW 1/1
2. Copies of house tax receipts Ex. DW 1/ 2 ( OSR)
3. Copies of property tax form Ex. DW 1/3 (OSR)
4. Copy of ITR Mark A
5. Copy of sale tax registration Ex. DW 1/5 ( OSR) 6. Copy of TIN NO. Ex. DW 1/6
7. Copy of membership receipt Ex. DW 1/7 (OSR)
8. Statement of account Mark B
9. Copy of FIR No. 271/13, copy of Order Mark A to D of the court, kalandara and translation of (colly.) receipt The said witness was also cross examined by the Ld. counsel SCJ No.609092/16/13 Ram Sijore vs Rajesh Jain Page no. 9 / 15 for the plaintiff and defendant's evidence was thereafter DE was closed.
10. I have heard the arguments adduced by the Ld. counsels for both the parties and have carefully perused the evidence on record carefully. My issue wise findings are as under : FINDINGS
11. Vide Order dated 11.08.2014 issue no.2 was decided in favour of plaintiff. Thus the only issue that remains to be adjudicated is Issue no.1 ISSUE No.1.
(i) Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP.
Onus to prove this issue was upon the plaintiff.
12. The plaintiff is seeking injunction to the effect of restraining defendants from dispossessing the plaintiff from the suit property in any manner whatsoever.
The plaintiff has contended himself to be the sole owner of the suit property and has further contended that he has been in exclusive possession of the same. Before adverting further, it is pertinent to mention the address of the suit property is 244/45, Gali No. 6, Near Water Tank, Anand Parbat, Nehru Nagar Delhi. The plaintiff has relied upon Ex. PW 1/ 4 (colly) I.e GPA, agreement to sell and affidavit and document Mark C to show that he is the sole owner of the suit property. It is no longer res integra that ownership can't be conferred by way of GPA, Agreement to Sell etc. SCJ No.609092/16/13 Ram Sijore vs Rajesh Jain Page no. 10 / 15 In Judgement titled as Suraj Lamp & Industries Pvt. Ltd. State of Haryana & Anr. SPECIAL LEAVE PETITION (C) NO.13917 OF 2009 it was observed :
15. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to SCJ No.609092/16/13 Ram Sijore vs Rajesh Jain Page no. 11 / 15 freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.
13 Also it is pertinent to note that PW1 in his deposition has stated that he had purchased the suit property from one Shiv Nath who happens to be his nephew. PW1 has further deposed " It is correct that land belongs to Ramjas foundation. Shiv Nath had given same to me. "
" I do not have any document to prove that Shiv Nath had become owner of the land sold to me. Vol Only Shiv Nath can produce any such document. I have not checked documents in the name of Shiv Nath before purchase of suit property."
14. It is nowhere explained as to when the land belongs to Ramjas Foundation, how Shiv Nath gave it to plaintiff. Further, perusal of Ex. PW 1/4 shows that document records that Shiv nath was the absolute owner of the suit property. The fact as to how he was absolute owner of the suit property has not been explained. PW1 has stated in his deposition that land belongs to Ramjas Foundation. Thereafter, PW2 I.e Shiv Nath, who was summoned as a witness, deposed that he has no sale deed in his favour qua the suit property but had power of attorney. Again the Power of Attorney could not have created title in favour of Shiv Nath. Also, Power of Attorney in favour of Shiv Nath has not been filed on record. It is also not disclosed as to who executed Power of Attorney in favour of Shiv Nath.
SCJ No.609092/16/13 Ram Sijore vs Rajesh Jain Page no. 12 / 15
15. Thus, title of Shiv Nath qua the suit property is not established by the plaintiff. It is settled that no one can transfer something which he himself never had. Thus, the claim that a GPA was executed by Shiv Nath in favour of plaintiff, has no consequences as Shiv Nath himself, had no title of the suit property.
16. From the aforesaid discussion, it can be safely culled out that the plaintiff does not have title over the suit property as admittedly the land belongs to Ramjas foundation and no chain of documents have been filed to show as to how the title reached to the plaintiff.
17. The plaintiff has contended that a suit was filed by the defendant against him for restraining him and in which the interim application of the defendant herein was also dismissed. It is no gainsay that the plaintiff has to stand on its own legs and he can not rely upon the deficiency of the defence taken by the defendants.
18. The other aspect is qua the nature of possession of the suit property I.e whether the plaintiff is in lawful possession of the suit property.
19. The plaintiff was required to establish that he is in lawful possession of the suit property sans Ex. PW 1/ 4(colly) which do not confer any right upon him.
20. The plaintiff has contended that the defendants have no right, title or interest in the suit property and that the plaintiff is in possession of the suit property. However, it was incumbent upon plaintiff to assert and to prove as to how he came in possession of the suit property and also that nature of his possession is lawful. The averment that one Shiv Nath put him in possession of the suit property would not help the plaintiff in so far SCJ No.609092/16/13 Ram Sijore vs Rajesh Jain Page no. 13 / 15 as possession of Shiv Nath has also not been established to be lawful. Interestingly, the plaintiff has admitted that land belongs to Ramjas Foundation and defendant no.1 has stated in his written statement that suit property vested in DDA. That is to say both the parties have submitted that none of them was the original owner of the suit property and both of them, without placing on record the chain of documents, have asserted themselves respectively to be owner and in possession of suit property. However, as it is the suit of the plaintiff therefore, it has to be seen as to whether the plaintiff has been able to prove his possession to be lawful or not. The plaintiff has relied upon documents Ex. PW 1/5 to Ex. PW 1/9 which are ration card, water connection document, voter I D, copy of adhar card and electricity demand notice. To counter the said stance, the defendant no.1 has relied upon Ex. DW 1/1 to Ex. DW 1/7 which shows that address of suit property is mentioned as address of defendant. The perusal of these documents record the address of the suit property as address of plaintiff and defendant no.1. However, none of the said documents are sufficient in themselves to prove that the possession was lawful or that the possession of either of the party was exclusive.
21. Admittedly, it is the case of the plaintiff that the suit property is a property of Ramjas Foundation and as has been specifically stated in his crossexamination by PW1 that he had not seen the title documents in favour of Shiv Nath and that he is not aware as to whether any documents have been in existence in favour of Shiv Nath. Further, Shiv Nath himself has stated that no sale deed is there in his favour but a GPA is there. Despite the said statement of Shiv Nath, no effort was made by the plaintiff to place on record the GPA in favour of Shiv Nath. Thus, no sale SCJ No.609092/16/13 Ram Sijore vs Rajesh Jain Page no. 14 / 15 deed, lease deed, license deed etc. have been filed on behalf of plaintiff to show that his possession of the property is lawful. In the absence of any sale deed, letter of allotment, license deed etc. in favour of Shiv Nath, the possession of the suit property earlier by Shiv Nath, can also not be presumed as lawful and as a natural corollary, possession of plaintiff can also not be termed as lawful.
22. In view of the aforesaid, I am of the considered opinion that the plaintiff has miserably failed in discharging his onus on the balance of preponderance of probabilities.
The issue is thus, decided against the plaintiff.
23. RELIEF In view of the findings on Issue No.1, the suit of the plaintiff stands dismissed. No order as to costs.
Decree Sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
NITISH Digitally signed
by NITISH
KUMAR KUMAR SHARMA
Date: 2020.02.07
SHARMA 16:41:18 +0530
Pronounced in the open court (Nitish Kumar Sharma)
today i.e on 07.2.2020 Civil Judge01(West)/Delhi
SCJ No.609092/16/13 Ram Sijore vs Rajesh Jain Page no. 15 / 15