Delhi District Court
Bimla @ Vimla Widow Of Late Mange Ram vs Smt. Chander Kanta on 22 October, 2018
IN THE COURT OF SH. SANJEEV KUMAR-I
ADDITIONAL DISTRICT JUDGE-12, CENTRAL,
TIS HAZARI COURTS, DELHI
Suit No. 43/09 (Old No.)
New CSDJ No.611999/16
Mange Ram (Deceased through LRs)
1. Bimla @ Vimla Widow of Late Mange Ram
2. Shri Parmod Kumar
3. Sh. Parveen Kumar
Both sons of Late Mange Ram
All R/o H.No.722,
Village Bijwasan, New Delhi
4. Smt. Babita
D/o Late Mange Ram
W/o Sh. Anil Kumar Sharma
R/o Vill. Narhera, P.O. Pataudi,
Distt. Gurgaon, Haryana
5. Smt. Rekha D/o Late Mange Ram
W/o Keshav Sharma
R/o Village & P.O. Begum Pur, Delhi-110086
6. Smt. Seema D/o Late Mange Ram
W/o Sh. Rakesh Kumar Sharma
R/o Vill. & P.O. Palra
Distt. Gurgaon, Haryana ...Plaintiffs
Versus
1. Smt. Chander Kanta
W/o Late Shri Banwari (Now dead) and deleted from the
array of defendants by the order of this Hon'ble Court.
CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 1 of 58
2. Shri Rakesh Kumar
3. Shri Gobind Parkash
4. Shri Dinesh Kumar
All sons of late Shri Banwari Lal
All R/o H.No.577,
Village P.O. Bijwasan, Delhi-110061
5. Smt. Ram Rati W/o Shri C.R. Rana
6. Shri C.R. Rana
Both R/o 644, Palam Vihar Road,
Bijwasan, Delhi-110061 ...Defendants
AND
Suit No.44/09 (Old No.)
New CSDJ No.610582/16
Smt. Ram Rati
W/o Shri C.R. Rana,
R/o 644, Palam Vihar Road,
Bijwasan, New Delhi-110061 ...Plaintiff
Versus
1. Shri Mange Ram (since deceased)
Through L.Rs.
a. Shri Pramod Kumar
b. Shri Praveen Kumar
Both sons of Late Shri Mange Ram
c. Ms. Bimla Devi
Widow of Late Shri Mange Ram,
All (a to c) R/o V.& P.O. Bijwasan,
Gali No.12, Mohalla Bhitrala,
New Delhi-110061.
CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 2 of 58
d. Smt. Babita,
D/o Late Shri Mange Ram,
W/o Shri Anil Kumar Sharma,
R/o Village Narhera,
P.O. Pataudi, District Gurgaon,
Haryana
e. Smt. Rekha,
D/o Late Shri Mange Ram,
W/o Shri Keshav Sharma,
R/o Village & Post Office,
Begampur, Delhi-110086.
f. Smt. Seema
D/o Late Shri Mange Ram,
W/o Shri Rakesh Kumar Sharma,
R/o Village & Post Office,
Palra, District Gurgaon, Haryana.
2. Shri Suraj Bhan
S/o Late Shri Risal Singh,
R/o Village & P.O. Bijwasan,
New Delhi-110061.
3. Shri Govind Sharma
4. Shri Rakesh Sharma,
5. Shri Dinesh Sharma,
Defendants no.3 to 5 sons of
Late Shri Banwari Lal Sharma,
residents of Govind Bhawan,
Village & P.O. Bijwasan,
New Delhi-110061. ...Defendants
AND
Misc. No.17/09 (Old No.)
New MISC.DJ No.60622/16
CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 3 of 58
Smt. Ram Rati
W/o Shri C.R. Rana,
R/o 644, Palam Vihar Road,
Bijwasan, New Delhi-110061 ...Petitioner
Versus
1. Shri Suraj Bhan
S/o Late Shri Risal Singh,
R/o Village & P.O. Bijwasan,
New Delhi-110061.
2. Shri Dharampal Singh
Sub-Inspector
Chowki-in-charge
Kapashera
Najafgarh, Delhi.
3. Shri Rajesh Kaushik
Inspector
S.H.O.
Police Stationary
Najafgarh, Delhi.
4. Shri Prakash Singh Rawat
Head Constable,
Delhi Police,
Police Post Kapashera,
Najafgarh, Delhi. ...Contemnors/respondents
Date of institution : 15.04.1996 (CS611999/16)
06.08.1998 (CS610582/16)
21.09.1998 (M.60622/16)
Date of reserving order : 16.10.2018
Date of decision : 22.10.2018
SUITS FOR PERMANENT INJUNCTION
AND
CONTEMPT PETITION
CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 4 of 58
JUDGMENT
1. Vide this common judgment, I shall decide suit no.CSDJ No.611999/16 filed by Sh.Mange Ram whereas suit no.CSDJ No.610582/16 filed by Smt. Ram Rati, both suit for permanent injunction and contempt petition bearing M.No.60622/16 filed by Smt.Ram Rati.
Suit No.43/09 (New No.CSDJ 611999/16)
2. Initially the suit was filed by the plaintiff against only defendant no.1 to 4. Later on by way of amendment he has impleaded defendant no.5 and 6.
3. Brief facts as stated in the plaint by Sh. Mange Ram are that:-
(a) Sh. Giani Ram along with S/Shri Shiv Charan, Murari Lal, Risaal Singh, Jai Narain and Kali Ram all S/O Mansa Ram are alloted half share and Sh. Mam Chand S/o Sh. Paltu Ram alloted another half share in plot no. 636, Hadbast No.487, measuring 0.11 biswas in consolidation proceedings. CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 5 of 58
Thus plaintiff has 1/6 th share in ½ of aforesaid plot being only s/o Sh. Giani Ram.
(b) On 02.02.1988, Smt.Chander Kanta, defendant no.1 in total agreement/ mutual understanding with her sons defendant no.2 to 4 sold her and total share in the above said plot (5 and ½ biswas) to Smt. Omwati W/o Sh. Suraj Bhan (hereinafter called as suit property).
(c) In 1995, defendant no.1 Smt. Chander Kanta got her three sons name transferred in the remaining plot measuring 5/1/2 biswas in the consolidation record through fraud in place of Sh. Mam Chand though she has already sold her share to Smt. Omwati.
(d) Defendant no.1 along with defendant no.2 to 4 are threatening to the co-sharer of 5 and ½ biswa land threatening to involve in false case and has ulterior motive to dispossess the plaintiff of his share in the property
(e) In June, 1998, defendant no.5 and 6 spread a false news that they have purchased the suit property from defendants no. 2 to 4 vide sale deed and in pursuance of the CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 6 of 58 said sale deed, on 08.07.1998 they tried to take forcible possession of the suit property from the plaintiff but plaintiff duly assisted by Sh. Suraj Bhan and his son and other neighbourers throw away them.
(f) That defendant no.5 & 6 again tried to take possession of the suit property from the plaintiff of stay order but could not succeed and the matter was brought to the notice of the local police who challan the defendant no.6 U/s 107/151 Cr.P.C. for breaching of peace.
4. The defendant no.1 and 2 to 4 have contested the suit. While defendant no.1 has filed separate written statement, the defendant no. 2 to 4 filed their joint written statement, however their written statements are almost ditto. In the written statement filed by defendants, the preliminary objection was taken that:-
(a) The plaintiff has no locus standi to file the present suit as he is neither the owner nor in possession of the same.
(b) That Smt. Chandra Kanta has been falsely implicated in the case because of defendants no.2 to 4 being the LRs of late Sh.Banwari Lal had inherited/ mutated the land of Sh. CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 7 of 58
Banwari Lal vide entry dated 31.5.1995 in the record of register maintained by patwari.
(c) The plot no. 636 part of Khasra no.487 measuring 11 biswas situated at Village Bijwasan Delhi is divided into two parts shown in the site plan in which part B is the plot in dispute which is in exclusive possession and ownership of defendants no.2 to 4 and defendant no.1 has no right, title or interest in the same.
5. On merits, defendants 1 to 4 to have taken following defense:
(i) They admitted the plaint to the extent of allotment of the ½ share in plot no. 636 measuring 11 biswa in chakbandi to Mam chand and remaining ½ share to descendant of Mansa Ram but stated that due to some mistake of consolidation department, the half plot was alloted to the descendants of Mansa Ram that is why sons of Mansa Ram gave/ executed power of attorney, affidavit in favour of defendant no.1 with the assurance that she will mutated the half to the descendants of Sh. Banwari Lal (who is son of Mam Chand) as all the defendants no.2 to 4 were living at Chandigarh CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 8 of 58 and carrying on their business.
(ii) It is denied that plaintiff has become owner of 1/6th share of half of the suit property. But stated that due of fact that Giani Ram and his brothers gave their share to the defendant no.1 hence plaintiff has no share in the said plot.
(iii) It is also denied that after the death of Banwari Lal, defendant no.1 had inherited the plot in dispute and stated that as per Delhi Land Reforms Act only male descendants can inherit hence defendant no. 2 to 4 inherited the same and name of defendant no. 2 to 4 also mutated in the revenue record.
(iv) It is also denied that defendant no.1 has any mutual understanding/agreement with defendant no. 2 to 4 by which they authorized to sold their share to the Omwati.
(v) It is also denied that defendants are giving threat to the plaintiff. Rather it is stated that Govind (defendant no.3) is living at Chandigarh and Rakesh is mentally disturbed about 10 year back and is not in a position to give threat.
(vi) It is alleged that defendant no. 2 to 4 are in possession of the suit property.
CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 9 of 58
6. From the ordersheet dated 07.09.2000, it is reflected that defendant no.1 expired and since defendant no.2 to 4 being her only legal heirs were already party, therefore, name of defendant no.1 was deleted from the array of parties.
7. During the pendency, the plaintiff Mange Ram expired and his LRs were impleaded as party in his place vide order dated 01.09.2007.
8. During the pendency of case defendant no.1 Chanderkanta also expired and since her legal representative i.e. defendants no. 2 to 4 were already party, hence her name was deleted from array of defendants.
9. From the ordersheet dated 22.07.98 it is reflected that an application U/o 1 Rule 10 CPC was filed by the plaintiff to implead defendant no.5 and 6 which was allowed and defendant no.5 and 6 were impleaded as parties.
10. Vide order dated 18.01.2008, defendant no.2 to 4 were proceeded ex parte.
CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 10 of 58
11. From the ordersheet dated 30.04.2003 it is reflected that an advance copy of application U/o 6 Rule 17 CPC r/w Order 1 Rule 10(4) CPC was filed to amend the plaint. Thereafter an application U/o 6 Rule 17 and Order1 rule 10(4) CPC was filed by the plaintiff dated 04.09.2003, however said application was dismissed as withdrawn on 07.04.2005.
12. An application U/o 6 Rule 17 CPC was filed by the plaintiff on 18.01.2008 for amendment of the plaint seeking relief of injunction and declaration against defendant no.5 and 6 but said application was dismissed by my Ld. Predecessor vide order dated 15.04.2008 and also rejected the plaint qua defendant no.5 and 6.
13. A review application was filed by the plaintiff but same was also dismissed vide order dated 07.07.2008.
14. From the order dt 0707.2008 it is also reflected that case was fixed for arguments on valuation of the suit for the relief of declaration and framing of issues but record shows that no application for amendment of relief of declaration was allowed by my Ld. Predecessor whereby plaintiff has added the relief of CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 11 of 58 declaration. Hence my Ld. Predecessor has inadvertently fixed the case for valuation of the suit for the relief of declaration.
15. Vide order dt. 08.12.2007 my Ld. Predecessor has ordered that passed in other suit (411/17 new number CS10582) my Ld. Predecessor has order that both the suit will be tried commonly and also directed to defendant no. 5 and 6 to file the written statement qua existing plaint though vide order dt. 15.04.2008 my Ld. Predecessor has already rejected the plaint qua defendant no. 5 & 6 on the ground that no cause of action arise against them.
16. Further on perusal of the file, I found that no issue has been framed in this case and case was fixed for recording common evidence alongwith other suit bearing no.610582/16(Old No.44/09).
Suit No.44/09 (New No.CSDJ 610582/16)
17. This suit was filed by Smt. Ram Rati (hereinafter called as plaintiff) for the sake of convenience though she is defendant no.5 in the other suit no.CS 611999/16 (Old No.43/09) for permanent injunction.
CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 12 of 58
18. Brief facts as stated in the plaint by Smt. Ram Rati are that:-
(a) The defendant nos. 3 to 5 were the owner of half share of the property bearing no.636, Khatauni no.487 admeasuring 11 Biswas situated in the extended Lal dora of Village Bijwasan, New Delhi as same was alloted to Sh.Mam Chand and remaining half was alloted jointly to Sh.Shivcharan, Shri Murarilal, Shri Risal Singh, Shri Giani Ram, Shri Jai Narain and Shri Kali Ram. Consequently, Sh.Mam Chand become the exclusive owner of half share i.e. 5-1/2 Biswas of the said plot and after death of Sh.Mam Chand, the said half portion devolved upon his only son Sh.Banwari Lal and further upon death of Sh.Banwari Lal, the said half portion devolved upon his three sons i.e. defendant no.3 to 5
(b) The actual physical partition of the plot took place in the year 1995 when Sh. Suraj Bhan S/o Sh.Risal Singh i.e. defendant no.2 and defendants no.3 to 5 built their boundary walls dividing the plot no.636 into two equal half of 5-1/2 Biswas each. The mutation in the revenue records in the CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 13 of 58 name of defendant no.3 to 5 was carried out on 19.05.95 vide entry no.2883-A/ACO/94-95 Min No.978.
(c) Plaintiff Ramrati is the owner in actual physical possession and enjoyment of half portion of bounded land/ plot bearing no.636 admeasuring 5-1/2 Biswas (275 sq. yards) situated in the Extended 'Lal Dora' of Village Bijwasan, New Delhi (herein after referred to as the suit property) which she purchased the suit from defendant no.3 to 5 vide sale deed registered on 24.06.98 duly registered vide No.1800 in additional Book No.1, Volume No.118 on pages 157 to 161.
(d) Plaintiff was put in actual physical possession of the suit property at the time of execution of sale deed on 04.06.1998. The mutation in the revenue records was ordered on 14.07.98 by the Tehsildar and mutation was recorded on 16.07.98.
(e) The defendant no.1 who is son of Late Sh.Gyani Ram and defendant no.2 who is one of the four sons of Late Sh.Risal Singh has 1/6th and 1/24th share respectively in other half of the plot no.636 but they have no concern with the suit plot as the same was owned and possessed by CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 14 of 58 defendants no.3 to 5.
(f) That some time after the purchase of suit property by the plaintiff, defendant no.1 and 2 started staking a claim on the same by claiming 1/6th and 1/24th share respectively and defendant no.1 & 2 on 04.07.98 came to the house of plaintiff and threatened to kill her unless she relinquished her rights in their favour and removed herself from the suit property. She lodged complaint with the local police to this effect and again on 08.07.98 the defendant no.1 and 2 tried to dispossess the plaintiff from the suit property by forcibly breaking/ demolishing a portion of the boundary wall of the suit property which were built by Sh. Suraj Bhan, defendant no.2 and defendant no.3 to 5 in 1995. She again lodged a complaint to the local police.
19. Only defendant no.1 and 2 contested the suit by filing joint written statement, in which they have taken following defense:
(a) That suit is barred U/s 10 CPC as a civil suit in respect of this very property is pending in Civil Court.
(b ) That defendant no.1 is the owner and in possession of the CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 15 of 58 suit property which is part of plot no.636 Khatauni 487 measuring 0-11 Biswas and he is in possession of the same as its owner/ co- owner.
(c) That defendant no.3 to 5 along with their mother Chander Kanta started harassing the plaintiff to handover the peaceful and vacant possession of the suit property on the basis of one forged Power of Attorney alleged to be executed by Sh.Shiv Charan, Murari Lal, Risal Singh, Jai Narain, the plaintiff Mange Ram etc. The defendant no.1 refused to handover the possession of the suit property to defendant no.3 to 5 and their mother, therefore when defendant no.3 to 5 did not stop harassing him, he filed a civil suit. (suit no. 611999/16) between the defendant no.1 and defendants no.3 to 5 and an application for impleading the present plaintiff and her husband U/o 1 Rule 10 CPC has been filed and is fixed for consideration on 06.10.1998.
(d) During pendency of said suit, on 04.06.1998, the defendants no.2 to 4 sold the suit property to Smt. Ram Rati at a throw-away price of Rs.1,00,000/- from defendants no.3 to 5 in violation of stay order dated 19.04.1996 passed by the Civil Court. Defendant no.1 add the plaintiff is not bonafide purchaser.
CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 16 of 58
(e) That as soon as defendant no.1 came to know about the sale of suit property and file an application U/o 1 Rule 10 CPC seeking impleadment of the present plaintiff and her husband as defendant no.5 and 6.
(f) That half portion of defendants no.3 to 5 and their mother was sold by their mother Smt. Chanderkanta to Smt. Omwati W/o Sh. Suraj Bhan, defendant no.2. Smt. Om Wati also filed a civil suit against the mother of defendant no.3 to 5.
(g) That on 08.07.1998 plaintiff, her husband, defendants no.3 to 5 and their mother tried to take forcible possession of the suit property and police came at the spot and after satisfying itself about the possession of the defendant no.1, rebuked the plaintiff, her husband, defendants no.3 to 5 and their mother that if they tried to take forcible possession, they be put behind the bar. Thus they prayed for dismissal of the suit.
20. Defendants no.3 to 5 did not appear and were proceeded ex-parte vide order dated 19.12.2001.
21. Plaintiff filed replication to the WS of defendant no.1 & 2 in CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 17 of 58 which she almost reiterated the same facts as stated by her in the plaint and denied the contents of WS as incorrect.
22. During the pendency of suit, defendant no.1 Sh.Mange Ram, defendant no.1 has expired on 22.07.06 and his LRs were impleaded vide order dated 30.03.2007.
23. After completion of the pleadings, following issues were framed on 05.08.2004:-
1) Whether the plaintiff is entitled to the injunction, as prayed for as against the defendants? OPP
2) Whether the present suit is liable to be stayed u/s.10 CPC, as prayed by the defendants? OPD
3) Whether the present suit is barred by latches?
OPD
4) Reliefs
24. As far as issue no.2 is concerned, vide order dated 08.12.2007, my Ld. Predecessor has ordered that the provisions of section 10 CPC cannot be strictly and legally invoked and the court dealing with other suit bearing no.384/07 had no jurisdiction to entertain this suit, therefore application of plaintiff Sh. Mange Ram (defendant no.1 in this case) was dismissed and order that the CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 18 of 58 facts and circumstances of the two cases deserve and it has so been urged on behalf of the both contesting sides that trial in two cases be conducted commonly and evidence lead in either of the cases be read in both the matters. Hence in these circumstances, in my view, issue no.2 has already been decided by my Ld. Predecessor.
25. As stated above, the common evidence was led in both the cases. While evidence led on behalf of Ramrati was mentioned as plaintiff evidence, evidence led on behalf of defendant no.1 and 2 of suit Ramrati vs Mange Ram was mentioned as defendant evidence.
26. In order to prove her case, Plaintiff Smt. Ram Rati has examined six witnesses. She has examined her husband Sh. Chhotto Ram Rana as PW1, PW2 HC Raj Kuma; PW3 Sh.
Chhatar Pal Singh, Kanoongo, Record Room, Tehsil, Hauz Khas, Mehrauli; PW4 Sh. Lalit Kumar Rana, Halka Patwari, Village Bijwasan ; PW5 HC Dharam Singh; PW6 Ct. Wilson.
27. On the other hand, defendant examined Sh. Suraj Bhan as DW1, Sh. Vishal Singh as DW2, LDC, Record Room (Civil), Room CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 19 of 58 No.312, Tis Hazari; DW3, Sh Chander Kant Sharma LDC from the O/o Sub-Registrar IX, Kapashera.
28. Arguments were heard from Sh. Omparkash Advocate and Sh. A.K.Singh the counsel of parties.
29. I have considered the arguments and gone through the record. As stated above, issues have only framed in CS 610582/16. As no issue has been framed in CS No.611999/16, therefore I will treat the issues framed in suit no.610582/16 as the issues which were framed in both the cases. But only issue no.1 is relevant for suit titled as Mange Ram vs Chander Kanta. My issue- wise findings are as under:-
Issue No.1 Whether the plaintiff is entitled to the injunction, as prayed for as against the defendants? OPP
30. Ld. Counsel for plaintiff Ram Rati has contended that from the testimony of plaintiff and PW2 to PW6 it is proved that suit property is purchased vide sale deed Ex.PW1/2 by the plaintiff from the defendant no. 3 to 5 who were the recorded owner of the CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 20 of 58 same and they had given the possession of the same to the plaintiff at the time of sale but defendant no.1 and 2 tried to dispossess the plaintiff by claiming that same is owned by them being ancestral land whereas there land is adjoining plot no. 636/2. He submits that defendants are falsely claiming that both plot are owned by them i.e. 636/2 sold by Chanderkanta to Omwati w/o Surajbhan the defendant no.2 other being ancestral land. He submits that plot no. 636/2 is the land owned by defendant no. 1 & 2 whereas plot no.636/2 is owned by the plaintiff Ramrati therefore she is entitle to decree of permanent injunction restraining the defendants no. 1 and 2 not to disturb her peaceful possession.
31. On the other hand, Ld. Counsel for the defendants no.1 and 2 has contended that from the testimony of DW1 it is evident that the suit property was allotted to the LRs of defendant no.3 to 5 and who sold the same to Smt. Omwati, wife of defendant no.2 through GPA and Agreement to sell. Later on Smt.Chander Kanta has become dishonest and tried to take forceful possession of the suit property, therefore the mother of DW1 filed the suit no.696/10/96 before the civil Court on 10.05.1996 against Smt. Chander Kanta and the civil Court vide judgment dated 16.11.2010 has granted a CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 21 of 58 decree of permanent injunction in favour of Smt.Omwati and against the defendants who are LRs of deceased Smt. Chander Kanta i.e. Govind Sharma, Rakesh and Dinesh restraining them from dispossessing the plaintiff from the suit property without due process of law. Hence from the said judgment, it is proved that defendant no.3 to 5 were not the owner of the property, therefore they cannot transfer any rights in the suit property to the plaintiff Ram Rati. Hence, the sale deed Ex.PW1/2 do not confirm any rights of ownership in favour of Smt. Ram Rati. Hence defendant no. 1 is entitle to the decree of possession.
32. Since both the parties are claiming the decree for permanent injunction therefore onus is upon both the parties to proved their respective case.
33. In order to prove the same on behalf of plaintiff Ram Rati her husband Chotto Ram who is also her attorney has been examined as PW1. He through his evidence affidavit Ex.PW1/X has deposed that Smt. Ram Rati is the owner of the suit property as she has purchased the same from defendant no.3 to 5 vide registered sale deed dated 04.06.1998 and possession of the suit property was CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 22 of 58 given to her after execution of the sale deed. She has further deposed that defendant no.1 and 2 on 04.07.1998 came to her house and threatened to kill her unless she relinquished her rights in their favour and removed herself from the suit property. She lodged complaint with the local police to this effect and again on 08.07.98 the defendant no.1 and 2 tried to dispossess the plaintiff from the suit property by forcibly breaking/ demolishing a portion of the boundary wall of the suit property which were built by Sh. Suraj Bhan, defendant no.2 and defendant no.3 to 5 in 1995. She again lodged a complaint to the local police. He has also relied upon documents Ex.PW1/1 to Ex.PW1/29.
(i) Site plan of suit property as Ex.PW1/1.
(ii) Sale deed dated 04.06.1998 executed between
plaintiff and defendants no.3 to 5 as Ex.PW1/2.
(iii) Pedigree table of the defendants as Ex.PW1/3.
(iv) Certified copy of Akshajara notifying the suit property as Khasra no.636/1 as Ex.PW1/4.
(v) Application dated 23.11.2002 filed by plaintiff before the Tehsildar, Kapasehra for correction in revenue records as Ex.PW1/5.
CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 23 of 58
(vi) Certified extract from revenue records of the suit property in the name of plaintiff as Ex.PW1/6.
(vii) Certified copy of proceedings sheets of mutation carried out between 18.11.75 to 11.06.75, issued on 14.7.92 as Ex.PW1/7.
(viii) Certified copy of proceedings sheets of mutation carried out by revenue authority of the suit property in favour of plaintiff as PW1/8.
(ix) Demarcation/ Akshajara of the suit property as Ex.PW1/9.
(x) Certified copy of Khasra Girdawari of the year 1986- 87 and for the year 1991-92 as Ex.PW1/10 (Colly).
(xi) Certified copy of Khasra Girdawari of the year 1997- 98 and for the year 1991-92 as Ex.PW1/11.
(xii) Carbon copy of complaints lodged by plaintiff dated 05.07.98 and 08.07.98 are Ex.PW1/12 & Ex.PW1/13 respectively.
(xiii) Certified copy of DD Entry no.18 dated 08.07.98 as Ex.PW1/14.
(xiv) Certified copy of enquiry report of HC Prakash Singh, CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 24 of 58 PP Kapashera as Ex.PW1/15.
(xv) Complaints dated 13.08.98, 14.10.1988 and 14.07.2002 are Ex.PW1/16 to Ex.PW1/18 respectively. (xvi) Five negatives bearing nos.3 to 7 along with photographs are Ex.PW1/19 to Ex.PW1/23 respectively. (xvii) Certified copy of order of the consolidation officer passed in case no.33/CO (UU) dated 10.11.1998 as Ex.PW1/24.
(xviii) Certified extract from the revenue records recording the mutation of suit property in the name of plaintiff as Ex.PW1/25.
(xix) Certified copy of the letter dated 31.12.1998 given before South Special Executive Magistrate, South West District as Ex.PW1/26.
(xx) Certified copy of final order dated 31.12.1998 of D.S. Sandhu SEM/SW District passed in case registered U/s 107/151 Cr.P.C. at PS Najafgarh as Ex.PW1/27.
(xxi) Certified copy of order dated 31.01.2003 by Tehsildar, Basant Vihar, District South West, Kapashera as Ex.PW1/28.
CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 25 of 58 (xxii) Copy of application filed by plaintiff in July, 2004 in suit no.202/96 titled as Smt.Omwati Vs. Smt. Chander Kanta and others in the Court of Sh.G.N. Pandey, Civil Judge, Delhi as Ex.PW1/29.
34. PW1 in his cross-examination, has denied the suggestion that plaintiff has not purchased the suit property or that Sh.Govind Sharma, Sh. Rakesh Sharma and Sh. Dinesh Sharma were neither the owner nor in possession of the suit property. He stated that NOC was obtained and thereafter the process of registration was completed on 24.06.1998. He denied the suggestion that defendant no.1 and 2 never tried to forcibly dispossess the plaintiff from the suit property and all the reports lodged by plaintiff with the police are false. He denied the suggestion that sale deed Ex.PW1/2 is not signed by the vendors and volunteered that same was signed in his presence and was registered in his presence. He stated that sale deed Ex.PW1/2 does not bear his signature but it was executed in his presence. He denied the suggestion that Ex.PW1/1 is not signed by the vendors. He stated that the same was signed by the vendors in his presence. He denied the suggestion that sale deed Ex.PW1/2 was not registered in his CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 26 of 58 presence. He denied the suggestion that neither the plaintiff nor her family members are owner and in possession of the suit property.
35. From the testimony of PW1 it is proved that suit property was purchased by the plaintiff Ram rati from defendant no.3 to 5. Since Defendant no. 3 to 5 who sold the suit property to the plaintiff Ram Rati did not contested the case rather in other case file by Mange Ram they have categorically stated that suit property has been sold to Ram Rati by them and application of the Mange Ram under Order 1 Rule 10 CPC to implead them as party proved that suit property was sold by defendant no. 3 to 5 to plaintiff Ram Rati.
36. PW2 HC Raj Kumar who proved the police complaints Ex.PW1/12, Ex.PW1/13 & Ex.PW1/16 to PW1/18 Thus he is merely a formal witness.
37. PW3 Sh. Chhatar Pal Singh, Kanoongo, Record Room, Tehsil, Hauz Khas, Mehrauli who proved the copy of mutution application Ex.PW3/1, certified copy of statement of Sh.Dinesh Kumar and Sh. Mahavir as Ex.PW3/2 and certified coy of form P1 CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 27 of 58 regarding mutation with order on its back as Ex.PW3/3. Thus he is also formal witness.
38. PW4 Sh. Lalit Kumar Rana, Halka Patwari, Village Bijwasan has proved the aks sizra of the plot no. 636 as EXPW1/9. He proved the certified copy of form O-4/ mutuation register pertaining to serial no.2883A of property bearing khasra no.636 of village Bijwasan as Ex.PW4/1 and certified copy of mutation register pertaining to serial no.3435 on futher transfer of property as Ex.PW4/2, certified copy of form P-1 with sanction order on its back as Ex.PW4/3, application already Ex.PW1/5, certified copy of consolidation register already Ex.PW1/6, certified copy of order passed by the consolidation officer containing the report of the Patwari on correction application of the plaintiff already Ex.PW1/28, aks-shajra Ex.PW1/9, complete set of order dated 10.11.1998 and related proceedings running into 19 pages Ex.PW4/3, the partition (titamma) of the plot reflected in aks-shajra Ex.PW1/9, certified copy of jamabandi Ex.PW4/4, copy of wrong entry at serial no.437 as Ex.PW4/5, report roznamcha dated 01.02.2003 as Ex.PW4/6 and resolution vide serial no.537 as CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 28 of 58 Ex.PW4/7. He also deposed that aks-sizra Ex.PW1/9 is in accordance with the order dated 10.11.1998 passed by consolidation officer vide case no.33/CO/1998-99. He proves orders and related proceedings as Ex.PW4/3. The said order was implemented and the name of Ramrati was mutated in revenue records in respect of plot no.636. Every order of consolidation officer is entered in resolution register and the order dated 10.11.1998 was entered at serial no.537 of the said register. It was wrongly recorded at serial no.437. After recording a report no.330 dated 01.02.2003, the mistake was rectified and the resolution was transferred to correct no.537. Copy of wrong entry at serial no.437 is proved as Ex.PW4/5, report roznamcha dated 01.02.03 is Ex.PW4/6 and resolution vide serial no.537 is Ex.PW4/7.
39. In his cross-examination, he admitted that site plan at page no.3 of Ex.PW4/3 is of entire plot and is shown to be one side open. He has never visited the plot in question. He denied the suggestion that consolidation officer does not have the power to affect partition of the property situated in extended lal dora of the village.
CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 29 of 58
40. From his testimony and documents proved by him, it is proved that property no.636 was divided into two parts i.e. 636/1 & 636/2 and suit property i.e. 636/1 village Biswasan was mutated in the name of Ram Rati.
41. PW5 HC Dharam Singh who proved complaint dated 22.05.08 from Smt. Ramrati and intimation to the police as Ex.PW5/1 and Ex.PW5/2 respectively, the reply given by SHO PS Kapashera Ex.PW5/3, list containing the particulars of weeding out record is Ex.PW5/4, copy of complaint Ex.PW1/12, Ex.PW1/13 and DD entry Ex.PW1/14, action taken report Ex.PW1/15 and complaint Ex.PW1/16 to Ex.PW1/18. He deposed that copy bear the original round stamp of Police Post Kapashera pertaining to PS Najafgarh. Thus this witness is also a formal witness.
42. PW6 Ct. Wilson who proved the copy of order regarding destroying of the complaint dated 17.08.1998 as Ex.PW6/1. Thus he is also a formal witness.
43. On the other hand defendant examined Defendant no.2 Suraj Bhan as DW1. He in his evidence led through affidavit which is not exhibited but for the sake of convenience I am giving it Ex.DW1/A, has deposed that his predecessor and predecessor of defendant no.3 to 5 were alloted a plot of 11 Biswas bearing CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 30 of 58 no.636 out of Khasra No.487 jointly in Village Bijwasan by consolidation department, way back in 1975-76. In the year 1984- 85, the said plot was partitioned mutually. The north side of the plot went to his family and southern part of the plot vested in Chanderkanta and defendants no.3 to 5 as shown in red colour in the site plan Ex.PW1/1 (in suit no.43/9). The said plot fell within the area of extended Lal Dora, thus keeping the entire plot out of the purview of Delhi Land Reforms Act and all provision of Hindu Succession Act are applicable. Smt. Chander Kanta on behalf of her sons, defendant no.3 to 5 sold the southern side of said plot to Smt. Omwati on 02.03.1988 for Rs.30,000/- through sale agreement, power of attorney, money receipt etc. and possession was handed over to Smt. Omwati. Smt. Omwati constructed the plot and started living in the said plot. At the time of purchase of southern part of the plot in the year 1988, there was no taker of the land and the land in dispute was considered to be jungle land, however with the development of Palam Vihar colony, in the vicinity of the plot in dispute, land prices started soaring in 1993-94 and sharp rise in the prices of land caused dishonesty in the mind of Smt.Chander Kanta and defendant no.3 to 5 in the present suit CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 31 of 58 and they tried to dispossess Smt. Omwati from the southern part of the plot and tried to alienate the suit property in clandestine manner. Knowing the illegal motive of Smt. Chander Kanta and her sons, his cousin Sh.Mange Ram has filed a civil suit for declaration and permanent injunction which is pending in this court. The order dated 19.04.1996 passed by the said Court reflected that Sh.Mange Ram was in possession of the suit property. When the suit was going on he got a notice from the Hon'ble High Court in respect of present matter. The plot in question in both suit is vacant plot of 5½ biswas. Smt. Ram Rati purchased constructed house having electricity and water connections. DW1 has also relied upon photographs of site Ex.DW1/2 to Ex.DW1/7. Site plan Ex.DW1/8. Copy of order dated 05.04.04 is Ex.DW1/9, Copy of application U/o 1 Rule 10(2) filed on 26.07.04 filed by Ram Rati is Ex.DW1/10. Certified copy of order dated 28.05.05 is Ex.DW1/11.
44. DW1 in his cross-examination admitted that Smt. Om Wati had filed a suit in respect of the southern portion of the suit plot which is now earmarked as plot no.636/2. He stated that Sh.Rishal Singh has four sons, myself, chanderbhan, Sudhirbhan and Devender Kumar. He admitted that pedigree table of his family CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 32 of 58 Ex.PW1/3 is correct. He admitted that there is a rasta of about 16½ ft. on the eastern side of suit plot and there is a rasta of about 8 ft. wide on the northern side and on the western side, there is a plot of Jai Lal. He denied the suggestion that plot adjoining on the southern side is of Sh.Shiv Charan etc. He volunteered that same is in the name of Smt. Om Wati. He denied the suggestion that total plot of 11 Biswa was mutually partitioned amongst all the co- sharers in 1995 and volunteered that same was partitioned in 1984. He admitted that on sale of the portion of plot by the sons of Sh.Banwari Lal, the specifications/ boundaries were recorded in the sale deed and revenue records. He stated that in the plot of 11 Biswa a partition of 1 ½ ft. height was constructed in 1988 to separate the southern and northern portion. He admitted the suggestion that construction is in the portion A of the plot and there is no construction in the suit plot, except boundary wall. He admitted the suggestion that both plots no.636/1 and 636/2 have separate partition walls adjoining each other and they fall on the southern side of suit plot. He denied the suggestion that they had tried to demolish the partition wall of plot no.636/1 due to which plaintiff had call the police. He stated that in 1998 part of his family CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 33 of 58 was living in plot no.636/2 and part in property no.577, village Bijwasan. He admitted the suggestion that he has not challenged the order dated 10.11.1998 Ex.PW1/24 passed by the consolidation officer. He denied the suggestion that he along with Sh.Mansa Ram tried to take possession of the suit property which was successfully restricted by the plaintiff. He admitted that plot no.636/2 was never mutated either in the name of Smt. Chanderkanta or in the name of Smt.Om Wati. He admitted the suggestion that he has not filed any objection in May 1999 when the suit plot was mutated in the name of Defendant no.3 to 5 and volunteered that he had came to know about the same only in 1998. He admitted the suggestion that there is no electricity and water connection in the suit plot. He admitted the suggestion that he do not show his affidavit to the legal heirs of Sh.Shiv Charan and other co-sharers including the legal heirs of Sh.Mange Ram.
45. From his testimony it is evident that he has admitted that plot no. 636 was allotted in consolidation proceedings and later on partitioned. Suit property is plot no. 636/1 and other portion of the plot is 636/2. According to him plot no. 636/2 which came into the share of Mam Chand was sold by his heir Chanderkanta on her CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 34 of 58 behalf and on behalf of her children i.e. defendant no. 3 to 5 and later on she become dishonest and denied the execution of sale documents, therefore defendant no. 3 to 5 have left no ownership right hence they could not sold the suit property to the plaintiff Ramrati. According to him suit property is in possession of Mange Ram who being LR of Shiv Charan and others is in possession.
46. To substantiate said averment the DW1 has not produced any documents. He has not even produced the sale documents of the portion sold by Chander Kanta to his wife from which it could be inferred that in what capacity Chander Kanta sold property to his wife. He admits that suit property is not mutated in the name of his wife and same is mutated in the name of defendant no. 3 to 5. He admits that he did not challenge the order of consolidation officer partitioning the plot and giving the plot no.636/1 to the plaintiff Ramrati and mutating her name in revenue record. Hence from his testimony he failed to prove that suit property i.e. 636/1 came into the share of Shiv Charan etc.
47. Sh. Vishal Singh as DW2, LDC, Record Room (Civil), Room No.312, Tis Hazari who produced the record/ file of present suit CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 35 of 58 no.696/10/96 titled as Ram Rati Vs. Chander Kanta and proved its certified copy of plaint as Ex.DW2/1, written statement as Ex.DW2/2, certified copy of application U/o 1 Rule 10(2) CPC filed by Smt. Ram Rati already Ex.D2/1, rejoinder dated 10.08.1999 Ex.D2/3, certified copy of order dated 05.04.2004 on application dated 03.09.1998 Ex.DW1/9, certified copy of application U/o 1 Rule 10(2) CPC dated 17.07.04 as Ex.DW2/4, order dated 26.04.05 already Ex.PW1/7 and certified copy of judgment dated 17.09.2011 Ex.DW1/P1. Hence he is a formal witness only.
48. DW3 Sh Chander Kant Sharma LDC from the O/o Sub- Registrar IX, Kapashera. He has brought record of sale deed EXPW1/2 i.e. the sale deed executed by defendant no. 3 to 5 in favour of plaintiff Ramrati. He has deposed that NOC is annexed in their record however he deposed that number of NOC is specified on back side of page no.2. He deposed that said sale deed was presented on 04.06.2008 in their office but was registered on 24.06.2008 after filing of NOC. He stated that he cannot say that fictitious number of NOC was given on back of NOC. In his cross examination he admitted that NOC is not annexed in the register in which register documents are kept. Thus his testimony is not CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 36 of 58 helpful to the defendant no. 1 &2 rather it goes against them and proved that sale deed EXPW1/2 on the basis of which plaintiff Ramrati is claiming ownership is duly registered with the office of Sub Registrar. Defendants have failed to proved from his testimony that sale deed was registered without NOC and thus was not registered according to law.
49. From the pleadings of parties and documents undisputed facts emerge that Mansa Ram and Mamchand were brother. Initially plot no. 636 which was a 11 biswa plot was allotted jointly to the LR of Mansa Ram and Mamchand during consolidation proceedings. There pedigree table is as under: CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 37 of 58
50. As far as suit no.611999/16 file by Mange Ram is concerned, said suit was initially file against Chanderkanta and her sons mentioned as defendant no.1 to 4. Later on in the said suit, defendant no.5 and 6 were impleaded as party. However, vide order dated 16.04.2008 the plaint qua defendant no.5 and 6 has been rejected, therefore only suit remain qua defendant no.1 to 4 who are proceeded ex parte.
51. The onus was upon the LR of Mange Ram to prove that they are entitled to the decree of permanent injunction for this they have to proved that defendant no.1 to 4 have tried to take forcible possession of the suit property as alleged by him in the plaint.
52. From the entire testimony of the DW1 and documents relied upon by him, it is evident that he has not deposed in his evidence affidavit about taking forcible possession by the defendant no.1 to 4 on 11.04.1996 or defendant no. 5 and 6 ( plaintiff Ramrati and her husband) after purchasing the same. Hence, plaintiff has fail to prove said fact, therefore no ground is made out for grant of any CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 38 of 58 relief of permanent injunction in favour of the Plaintiff Mange Ram and against the defendant no.1 to 4.
53. Even otherwise, as mention above the defendant no.1 to 4 (in suit Mange Ram vs. Chander Kanta) have sold the suit property to defendant no.5 and 6 hence they have left no right, title or interest in the suit property as whatever interest they have in the suit property same stand transferred in favour of defendant no.5 and 6, hence granting any relief against defendant no.2 to 4 would be futile. The plaint qua defendant no.5 and 6 has already been rejected, hence no relief against them can be granted.
54. As far as suit no. 610852/16 file by Smt. Ram Rati is concerned she has also claimed the decree of permanent injunction mainly against defendant no.1 Mange Ram and defendant no.2 Suraj Bhan because no allegation has been level against defendant no. 3 to 5 in the plaint that they also tried to dispossess the Ram Rati from the suit property therefore they are only performa parties.
55. The onus to proved that defendant no 1 and defendant no.2 CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 39 of 58 tried to dispossess the plaintiff and therefore they are entitled to decree of permanent injunction was upon the plaintiff Ram Rati.
56. Defendant no.1 and 2 in the written statement has admitted that the said suit property along with other portion of Khasra no.636, Khata no. 487 ad-measuring 0.11 biswas was allotted through consolidation proceedings in half share each to S/Sh.Shivcharan, Murarilal, Risal Singh, Giani Ram, Jai Narain and Kali Ram, all sons of Sh. Mansa Ram and the other half share in the said Khasra was allotted to Sh. Mam Chand S/o Sh. Paltu Ram. After the death of Sh.Mam Chand, his son Sh.Banwari Lal and after the death of Sh.Banwari Lal, his legal heirs have acquired the said property.
57. As evident from the sale deed Ex.PW1/2 it is proved that Smt. Ram Rati has purchased the suit property i.e 5 and half biswa out of total 11 biswa of plot no. 636 situated in village Bijwasan bounded as from defendant no.3 to 5 on 04.06.1998. From the PW1/7, PW1/8,PW1/9 , PW1/10, PW4/1, PW3/1 to PW3/3, PW4/2 and PW4/3 which is revenue land record it is proved that ½ portion of plot has been first entered into the name of defendant CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 40 of 58 no. 3 to 5 and then in the name of plaintiff Ram Rati. This also proved that suit property was duly mutated in the name of plaintiff Ram Rati. Hence from the aforesaid documents it is proved that on the date of filing of the suit plaintiff Ram Rati was the owner of the suit property and in the revenue record also land was mutated in her name.
58. As far as contention of the Ld. Counsel for defendants that Chander Kanta the mother of defendant no. 3 to 5 has sold the share which they have inherited from Late Mamchand to Smt. Omwati w/o defendant no.2 therefore defendant no. 3 to 5 have no right to sold the same to the plaintiff. The DW1 has not produced the sale documents which was executed by Smt. Chanderhanta in favour of DW1 wife. Defendant no.1 and 2 has not proved any Power of Attorney or authority letter was executed by defendant no.3 to 5 in favour of their Smt. Chander Kanta authorizing her to sell the suit property to Smt. Omwati. Mere self serving oral testimony of DW1 that Chanderkanta has mutual agreement/ understanding with defendant no. 3 to 5 to sold the suit property to Omwati is not sufficient to proved that Smt. Chanderkanta was authorized by defendant no.3 to 5 to sold the suit property to Smt. CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 41 of 58 Omwati. Hence, even if I presume that the contention of defendant is correct that deceased Smt. Chander Kanta has sold the property to the wife of defendant no.2, in my view this is not a valid sale transfer because she has no right, title or interest in the suit property which she could transfer/sold suit property to Smt. Omwati.
59. Further according to testimony of defendant no.2/DW1, Smt. Chander Kanta has sold the property to Smt. Omwati from the mutation order dated 19.05.1995 vide entry no.2883-A/ACO/94-95 Min No.978 it is evident that the land in question was never mutated in the name of Smt. Chander Kanta but it was mutated in the name of his three sons i.e. defendant no.3 to 5. Further, since the land in question was situated in the village which has not been urbanized, I do not find force in the contention of Ld. Counsel for defendant that since suit is situated in Lal Dora therefore Delhi Land Reform Act will not apply and Hindu Succession Act will apply. The Hindu Succession Act will apply when the village in which land is situated has been declared urbanized village u/s 507 of the Delhi Municipal Act,1957. Rather I am fully agree with the contention of Ld. Counsel for the plaintiff that the property in CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 42 of 58 question will be inherited not by way of Hindu Succession Act but by way of succession as provided in the section 50 of Delhi Land Reforms Act 1954, as per which the property will go not to the wife of the deceased land owner but to his male descendants.
60. Section 1(1) of the Delhi Land Reform Act provides that it extend to entire Union territory of Delhi but shall not apply to (2) which are or may before the first day of November 1956 included in any municipality or a Notified area under the provision of Punjab municipal Act 1911, or a Cantonment Board under the provision of Cantonments Acts 1974. Admittedly the land in question does not fall in any of the above category. This land is part of revenues estate of village Bizwasan. Merely because it is Lal Dora land does not take it out from operation of Delhi Land Reform Act as same can be taken only by a notification under section 507 of Delhi Municipal Act, 1957 which provides that Corporation with the approval of Government may by notification in the official Gazette declare any area rural areas shall cease to be included in rural areas. It is not pleaded by defendant that notification under Section 507 of Delhi Municipal Act 1954 has been issues by which the areas in which suit property falls has ceased to be rural area. CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 43 of 58 Hence in my view suit land still falls in rural areas. Hence, succession of the same shall be govern by section 50 of DLR Act. it appears that that is why the land in question has been mutated in the name of sons of deceased Banwari Lal i.e. defendant no.3 to 5 and not in the name of Smt. Chander Kanta.
61. Further DW1 has only relied upon the certified copy of the judgment titled as Omwati vs Chanderkanta passed in suit no.696/10/96 decided by Ld. Civil judge 06 Central on 17.09.2011. In his cross examination he has admitted that said portion which was sold to Omwati is other portion of plot no. 636 which is not suit property hence said judgment is not qua suit property. Further from the reply Ex.D-2/2 file by the Omwati to the application u/o 1 rule 10 CPC file by the plaintiff in the above said case it is evident that Omwati has taken the objection that land which was purchased by the applicant Ramrati is different land then the land involve in the suit file by her hence now her husband i.e. defendant no. 2 estopped from taking any benefit of said judgment in present case.
62. Even otherwise from perusal of said judgment dated 17.09.2011 EXDW1/P2 it is evident that Smt.Omwati file the CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 44 of 58 aforesaid suit seeking relief of declaration and permanent injunction qua the ½ portion of plot no. 636 in khata no. 487 situated in Lal Dora of village Bijvasan on the ground that said half portion was sold to Smt. Omwati by Chanderkanta vide GPA, Agreement to sell etc., dt. 02.03.1988. The Ld. Civil Judge decided the said suit while holding that plaintiff (Omwati) is only entitle to protecting the possession of only with respect to ¼ share which Chanderkanta inherited and further restrain the defendant to create third party interest in respect to share of Chanderkanta only. Hence only relief was granted to Smt.Omwati about ¼ th share whereas defendant no. 1 &2 despite said judgment claiming ownership of entire ½ plot which comes into the share of LR of Banwari Lal. The said judgment was passed on the ground that Smt. Chandrakanta inherited ¼ share in suit property.
63. From the above said judgment it is evident defendant no.3 to 5 who have sold the suit property to plaintiff Ram Rati were not party of the said case till the suit land was sold to the plaintiff Ram Rati, they become party only after the death of Smt. Chander Kanta being her LR. Hence judgment is not applicable upon the defendant no.3 to 5 and plaintiff. Even doctrine of Lis Pendense CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 45 of 58 as alleged by the Ld. Counsel for defendant will not be applicable in such circumstances. Therefore in my view defendant no. 3 to 5 being owner of the suit land have right to sell the same to plaintiff. Hence plaintiff by virtue of sale deed EXPW1/2 has acquired ownership in the suit land.
64. As far as contention of the Ld. Counsel for defendant no.1 and 2 that plaintiff has purchased the land which is built up as also mentioned in High Court order whereby interim stay was granted whereas the suit property is vacant land is concerned, undoubtedly in the sale deed of plaintiff EXPW1/2, it is mentioned that suit land is a built up property but from the details of plot mentioned in the said sale deed it is evident that it was northern side plot of khasra no.636 whereas southern site plot has been shown belonging to Shiv Charan etc. Admittedly northern side plot is vacant land. Hence merely because in the sale deed it is mentioned that property is built up it cannot said that it is sale deed of other portion of plot no.636 which is built up and in possession of defendant no.1 and 2. Moreover, as stated above plaintiff has prove that he got the mutation of plot which is of northern side given number as 636/1. From the site plan file by the plaintiff CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 46 of 58 alongwith plaint also it is evident that suit property is northern side plot further in the entire plaint nowhere it is mentioned that suit land is built up property. It appears that Hon'ble High Court also on the basis of sale deed has mentioned in the interim order dt.06.08.1998 that suit property is constructed portion. But in my view this does not give any benefits to the defendant no. 1 &2 being interim order even if plaintiff has not file any application for correction of the said fact.
65. In the site plan mentioned as schedule A file with the plaint suit land has been shown. From the document EXPW1/24 it is evident that Consolidation Officer vide its order dt. 10.11.1998 passed in case no. 33/CO(VV) titled as Ramrati vs Shiv Charan & others has on the application of plaintiff for carving out a tatima in respect of her half share in Khasra no. 636 Village Bijwasan has ordered to carved out the tatima from the aforesaid plot no. 636 despite objection of the Mange Ram and Suraj Bhan the defendant no.1 &2 in present case. The relevant portion of the same is reproduced as below:
"This order will dispose off the appl. filed by Smt. Ram Rati W/o Sh.Chhotu Ram for carving out a Titama in r/o CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 47 of 58 her half share comprised in khasra no.636(0-11) Village Bijwasan, New Delhi which is in her possession.
The Report from P. Halka has been sought which is vailable on file. As per the R/Records the other ½ share of Khasra No.636 measuring 0-11 Biswas belongs to S/Shri Shiv Charan etc. Sons of Sh.Mansa Ram. Notices were issued to S/Sh.Shiv Charan etc. and Sh.Shiv Charan, Muarai Lal, Mange etc. put in appearance and recorded their statements wherein they stated to have No Objection to the carving out of Titama as contended by the applicant. However Sh.Mange Ram S/o Sh.Giani Ram and Sh.Suraj Bhan S/o Sh.Risal Singh who are the decendant of Sh.Mansa Ram, have objected to the present application. I have heard both the parties and also examined the instrument of registration, on the basis of which the applicant had purchased the 1/2 share and I find that the share of the applicant is clearly separate from the other 1/2 share belonging to Sh.Shiv Charan etc. The F.Kanungo was directed to carve out a Titama. F.K. has put up his Report which is available on file. The Report is accepted and it is ordered accordingly. The Titama be implemented in Records."
66. Further from revenue record Ex.PW1/8 it is evident that tatima was entered in the revenue record as per which plot no. 636 was partitioned and Ramrati was given 636/1 and Shiv Charan etc.,636/2. As per site plan Ex. PW1/9 is evident portion 636/1 is CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 48 of 58 the same land which shown in the site plan file by plaintiff as schedule A. Said site plan has been admitted by defendant no.2. Hence from the aforesaid revenue record it is evident that though in the sale deed specific description has been given regarding the portion of plot no. 636 purchased by plaintiff from defendant no. 3 to 5 but partition was not entered in the revenue record though they may have partitioned mutually by constructing the dividing wall and plot no.636 was partitioned only after application file by the plaintiff Ramrati same was divided and plaintiff was given plot Khasra no.636/1 about which present suit has been filed. Whereas Shiv Charan and others were given plot no.636/2. This order by consolidation officer as mention above was passed with the consent of all the co-sharer of plot of the branch of Mansa Ram whose LR are Mange Ram and Suraj Bhan except Mange Ram defendant no.1 and Suraj Bhan defendant no.2 as stated above Mange Ram just has 1/6 share in half of plot no.636 and defendant no.2 has 1/24 in that plot hence major share is owned by remaining co-sharer. Their no objection prove that plaintiff purchased plot which was given number as 636/1. Further undisputedly said order of consolidation officer dividing the plot CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 49 of 58 and giving plot which is suit property to the plaintiff Ram Rati has not been challenged even by defendant no.1&2 hence that event that order has become final therefore defendant no.1&2 cannot challenge the same now, hence I do not find force in the contention of Ld.Counsel for defendants no.1&2 the portion which is constructed and in possession of Mange Ram defendant no.1 and Omwati wife of defendant no.2 is property purchased by the plaintiff and plaintiff Ram Rati has file suit of other portion which is vacant land owned and in possession of Mange Ram.
67. Even otherwise for the sake of arguments I presume same to be true I fail to understand how the Mange Ram and Suraj Bhan the defendant no. 1 &2 could be in possession of the 1/2 portion of plot no. 636 as Mange Ram is admittedly owner of just 1/6th share in 1/2 of Khasra no.636 and since total plot is 11 biswa which comes to 550 sq. yard approx his 1/6th of half of 550 Sq. yard would be merely 45 Sq. yard approx. Defendant no.1 Mange Ram neither in the suit filed by him nor in the joint written statement filed by him alongwith defendant no.2 stated that other co-sharers have relinquished their share. It looks very unlikely that if plaintiff or defendant no.3 to 5 have tried to take possession of the plot which CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 50 of 58 falls in the share of other LR of Mange Ram they would not have objected to the same. Rather as stated above other co-sharer i.e. Shiv Charan etc., have given no objection for mutation of the suit property in the name of plaintiff Ram Rati. This creates serious doubt that suit property is the portion which in partition of plot no. 636 came into the share of defendant no.1 and 2.
68. As far as possession of the suit property is concerned, both the parties have claimed that they are in possession of the suit property. From the testimony of PW1 and DW1 it is evident that it was just a vacant plot having boundaries wall only and one gate. The said gate as evident from the testimonies of PW1 and even DW1 was locked from inside and outside, while inside it has lock of defendant outside it has lock of plaintiff Ram Rati. In a vacant plot only having boundary wall of 4 feet height anybody could enter in the property and put its lock hence from the position of locks on the door it cannot be said that who was in possession of suit property. Hence I do not find force in the contention of Ld. Counsel for defendant that since from inside the door was locked with the lock put by defendant, therefore defendant no.1 and 2 are in possession. In a vacant plot position of ownership can be altered CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 51 of 58 anytime as in vacant plot it would not be possible to determine who is in possession that is why in vacant plot possession follow the ownership and the persons who is owner is considered to be in possession. Hence on the basis of plaintiff being owner I held that plaintiff was in possession of the suit property.
69. The plaintiff through the testimony of PW1 and police complaint Ex.PW1/12 dt. 05.07.1998, Ex.PW1/13 dt. 08.07.1998 complaint dt. 13.08.1998 Ex.PW1/16, 14.10.98 dt. EXPW1/17 14.07.98 Ex.PW1/18 has proved that there was quarrel with defendants no.1 & 2 over the possession of the suit property. The plaintiff Ram Rati being owner of suit property is entitle to protection of possession of the suit property whereas defendant Mange Ram (plaintiff in suit titled as Mange ram vs Chanderkanta) not being owner of the suit property cannot be considered to be in possession of the suit property.
70. In view of above, I held that plaintiff Ram Rati is entitle to decree for permanent injunction restraining the defendants their servants, agents, or any other persons claiming through them from in any manner to demolishing/ damaging the boundary wall of the CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 52 of 58 suit property or from disturbing the peaceful use, occupation and enjoyment of the suit property as shown in site plan file with the plaint as schedule A. Whereas I held that defendant Mange Ram (plaintiff in suit titled as Mange ram vs Chanderkanta) is not entitle to the decree of permanent injunction.
Issue No.3 Whether the present suit is barred by latches? OPD"
71. This ground has been taken by the defendant no. 1 &2 in their written statement as preliminary objection no.5 in suit titled as Ram Rati vs Mange Ram. It is stated in the preliminary objection that cause of action lastly arose on 08.07.1998 whereas present suit is filed on 04.08.1998 hence same is hit by latches. From the testimony of PW1 it is evident that plaintiff has file the complaints before police against the act of defendant no. 1 &2 which has been proved 05.07.1998, 08.07.1998 and 14.07.98 hence in these circumstances it cannot be said that he did not take any action at all. She might be waiting for police action that is why immediately did not approach to the court. Hence in these circumstances in my view delay of less than one month is not such delay that the suit file by plaintiff Ramrati could be said to be hit by Latches. Hence I CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 53 of 58 decide this issue in favour of plaintiff Ramrati and against the defendants.
Contempt Petition No.17/09 (Old No.)/ M. No.60622/16
72. As far as contempt petition is concerned which was later on considered as an application U/o 39 Rule 2A CPC by Hon'ble High Court and registered as I.A., petitioner Ram Rati has filed the contempt petition U/s 11 & 12 of the Contempt of Court Act for initiating contempt against respondent no.1 Sh.Suraj Bhan and respondent no.2 Sh.Mange Ram and Sh.Dharampal Singh, Sub- Inspector and Inspector Rajesh Kaushik, SHO PS Najafgarh and Sh.Prakash Singh Rawat, Head Constable Police Post Kapashera. However, after the death of Sh.Mange Ram, his name was deleted from the contempt petition.
73. It was stated in the contempt petition that the Hon'ble High Court in this case passed an interim injunction order against the respondent no.1 and 2 in IA No.6673 of 1998 directing the respondent no.1 and 2 not to interfere in the use, occupation and enjoyment of the plaintiff in the suit property and directing the local police of the area concerned to ensure compliance of the said CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 54 of 58 order. The petitioner/ plaintiff has complied the requirements of the order 39 Rule 3 CPC and served the copy of the same to the Chowki Incharge, respondent no.3, police post Kapashera as well as to the SHO PS Najafgarh on 11.08.1998 and on the respondent no.1 and 2 on 12.08.1998 and despite service of the notice, respondent no.1 and 2 in connivance with respondent no.3 and 4 prevented the petitioner from enjoying the suit property and thus violated the interim order of the Hon'ble High Court and thus committed contempt.
74. Joint reply of the said application was filed by respondent no.1 and deceased Mange Ram in which they have stated that petitioner wants to take forcible possession and thus she in a planner manner filed the suit on 04.08.1998 though she purchased the court fees on 29.07.1998 and get stay order on 06.08.1998 but did not informed the respondents till 12.08.1998 as she filed defective process fee knowingly and filed correct process fee on 10.08.1998 in order to get time so that date of 15 th and 16th August may come near being holidays. Further it is stated that a vigilance inquiry was conducted by the police at high levels and after enquiry, it was found that possession of the suit property is with the CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 55 of 58 respondents and petitioner under the garb of Hon'ble High Court order is trying to take forcible possession and after enquiry, senior police officials directed the petitioner not to create law and order problems and not to enter the suit premises after breaking the wall or the iron gate and thus he prayed for dismissal of the petition.
75. No reply was filed by respondent no.3 and 4.
76. Ld. Counsel for both the parties have argued on the application/petition in the same line as taken by them in their respective pleadings.
77. As per Order 39 Rule 3 CPC, in case of ex parte injunction, the party in whose favour ex parte injunction granted has to sent to other party by registered post a copy of the application for injunction together with the affidavit in support of the application copy of plaint and copy of documents relied upon and has also to file affidavit in this regard that the copies have been so delivered or sent but the respondent no.1 and 2 have been served on 12.08.1998 whereas the interim stay was granted on 06.08.1998. In the contempt petition, it is not mentioned that on the same day when injunction was granted the compliance of order 39 Rule 3 CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 56 of 58 CPC was made. Therefore, if the compliance has not been made by the petitioner, the ex parte interim order shall deemed to be not if the compliance is not made by a party in whomsoever the interim order was granted then it would amount that no interim order has been passed in favour of that party. Hence, in these circumstances no contempt would be made.
78. Even otherwise, as mentioned above in the main suit, the suit land is vacant land and as evident from the photographs nothing could be inferred who is in possession of said vacant land. Even Local Commissioner appointed by the Hon'ble High Court to ascertain the possession, in its report as specifically stated that it is very difficult to ascertained who is in possession of vacant land. As far as damage to boundary wall is concerned the defendants have denied that they have broken the same. PW1 in his testimony has not stated anything about the incident of 13.08.2008 as alleged by him in the contempt petition. He has not deposed that he has seen anybody breaking the same hence I held that plaintiff/ petitioner failed to proved that same was broken by defendants. Hence in these circumstances I held that plaintiff have failed to proved that respondent no.1 (defendant no.1) and deceased CS Nos.611999/16, CS 610582/16 & M.No.60622/16 Page 57 of 58 Mange Ram in connivance with respondent no.2 to 4 have not allowed the petitioner/ plaintiff for peaceful enjoyment of the suit property. Hence, the contempt petition is dismissed being without ant merit.
RELIEFS
79. (i) In view of my finding of issue no.1, I decree the suit no.610582/16 (Old No.44/09) filed by Ramrati and hereby restrained the defendants their servants, agents, or any other persons claiming through them from in any manner to demolishing/ damaging the boundary wall of the suit property or from disturbing the peaceful use, occupation and enjoyment of the suit property as shown in site plan file with the plaint as schedule A. Plaintiff is also entitled to the costs.
(ii) Further I held that defendant Mange Ram is not entitled to the decree of permanent injunction, hence suit no.611999/16 filed by Sh.Mange Ram is hereby dismissed with cost.
(iii) The contempt petition filed by Smt. Ram Rati is dismissed.
Decree sheet be prepared accordingly. File be consigned to Digitally signed by record room. SANJEEV SANJEEV KUMAR KUMAR Date: 2018.10.22 16:30:53 +0530 Announced in the open (SANJEEV KUMAR-I) Court on 22.10.2018 Addl. District Judge-12 (Central) Tis Hazari Courts, Delhi.
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