Delhi District Court
2 vs Ranbir Singh Khokhar on 24 December, 2022
:: 1 ::
IN THE COURT OF SH. NAROTTAM KAUSHAL,
PRINCIPAL DISTRICT & SESSIONS JUDGE, SOUTH
SAKET, NEW DELHI
CIS RCA No. 8724/16 (Old RCA No. 03/11)
CNR No. DLST01-000018-2011
SHEOJI RAM DAGAR
S/o late Sh. Rang Lal
Through LRs
(1) TARIF SINGH
S/o late Sh. Sheoji Ram Dagar
R/o H. No. 31/3, Jia Sarai
IIT, New Delhi - 110 016
(2) DHARAMPAL
S/o late Sh. Sheoji Ram Dagar
R/o H. No. 31/3, Jia Sarai
IIT, New Delhi - 110 016
(3) ROHTASH SINGH
S/o late Sh. Sheoji Ram Dagar
Through LRs
(a) SMT. BALA DEVI
W/o late Sh. Rohtash Singh
R/o H. No. 31/3, Jia Sarai
IIT, New Delhi - 110 016
(b) HIMANSHU DAGAR
S/o late Sh. Rohtash Singh
R/o H. No. 31/3, Jia Sarai
IIT, New Delhi - 110 016
(c) SMT. ROHINI DAGAR
D/o late Sh. Rohtash Singh
R/o H. No. 31/3, Jia Sarai
IIT, New Delhi - 110 016
4. VIJENDER SINGH
S/o late Sh. Sheoji Ram Dagar
R/o H. No. 31/3, Jia Sarai, IIT, New Delhi - 110 016
RCAs No. 8793/16 and 8724/16
Miscl. DJ No. 8827/16 Page No. 1 of 27
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5. RAJINDER SINGH
S/o late Sh. Sheoji Ram Dagar
R/o H. No. 31/3, Jia Sarai
IIT, New Delhi - 110 016
6. SHRI KISHAN
S/o late Sh. Sheoji Ram Dagar
R/o H. No. 31/3, Jia Sarai
IIT, New Delhi - 110 016
7. JIT SINGH
S/o late Sh. Sheoji Ram Dagar
R/o H. No. 31/3, Jia Sarai
IIT, New Delhi - 110 016
...APPELLANTS
VERSUS
1. RANBIR SINGH KHOKHAR
S/o late Sh. Shiv Lal
R/o 31, Jia Sarai
Near IIT Gate, New Delhi - 110 016
2. MAHANAND KHOKHAR
S/o late Sh. Shiv Lal
R/o 31, Jia Sarai
Near IIT Gate, New Delhi - 110 016
Through LRs
(a) SMT. SHAKUNTALA KHOKHAR
W/o late Sh. Mahanand Khokhar
S/o late Sh. Shiv Lal
R/o 31, Jia Sarai
Near IIT Gate, New Delhi - 110 016
(b) ARTI
D/o late Sh. Mahanand Khokhar
S/o late Sh. Shiv Lal
R/o 31, Jia Sarai
Near IIT Gate, New Delhi - 110 016
RCAs No. 8793/16 and 8724/16
Miscl. DJ No. 8827/16 Page No. 2 of 27
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(c) AMAN KHOKHAR
W/o late Sh. Mahanand Khokhar
S/o late Sh. Shiv Lal
R/o 31, Jia Sarai
Near IIT Gate, New Delhi - 110 016
3. ANOOP KHOKHAR
S/o late Sh. Shiv Lal
R/o C-18, Jia Sarai
Near IIT Gate, New Delhi - 110 016
4. SHAKUNTALA
W/o late Sh. Mahanand Khokhar
R/o C-18, Jia Sarai
Near IIT Gate, New Delhi - 110 016
5. SARJO
W/o Sh. Ranbir Singh Khokhar
R/o C-18, Jia Sarai
Near IIT Gate, New Delhi - 110 016
6. NARENDER
S/o late Sh. Kartar Singh
(Predeceased son of late Sheoji Ram Dagar)
R/o 258, Jharoda Kalan, New Delhi
7. PINTO
S/o late Kartar Singh
(Predeceased son of late Sheoji Ram Dagar)
R/o 258, Jharoda Kalan, New Delhi
8. NIRMALA
W/o Sh. Raj Kumar
R/o Ber Sarai,
New Delhi
9. SANTRA
W/o Ravi Dutt Tokas
R/o H. No. 61, Munirka
New Delhi - 110 067
Through LRs
RCAs No. 8793/16 and 8724/16
Miscl. DJ No. 8827/16 Page No. 3 of 27
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(a) SUSHMA
W/o Sh. Vishwajeetn Shokeen
D/o Ravi Dutt Tokas
R/o Gali No. 7, Ashok Mohalla
Near Bhootonwali Gali
Nangloi, Delhi - 110 041
(b) PRITAM TOKAS
S/o Sh. Ravi Dutt Tokas
R/o H. No. 61, Village Munirka
New Delhi - 110 067
(c) SANJEEV TOKAS
S/o Sh. Ravi Dutt Tokas
R/o H. No. 61, Village Munirka
New Delhi - 110 067
... RESPONDENTS
AND
RCA No. 8793/16 (Old RCA No. 04/11)
CNR No. DLST01-000184-2011
SHEOJI RAM DAGAR
S/o late Sh. Rang Lal
Through LRs
(1) TARIF SINGH
S/o late Sh. Sheoji Ram Dagar
R/o H. No. 31/3, Jia Sarai
IIT, New Delhi - 110 016
(2) DHARAMPAL
S/o late Sh. Sheoji Ram Dagar
R/o H. No. 31/3, Jia Sarai
IIT, New Delhi - 110 016
(3) ROHTASH SINGH
S/o late Sh. Sheoji Ram Dagar
Through LRs
(a) SMT. BALA DEVI
W/o late Sh. Rohtash Singh
R/o H. No. 31/3, Jia Sarai, IIT, New Delhi - 110 016
RCAs No. 8793/16 and 8724/16
Miscl. DJ No. 8827/16 Page No. 4 of 27
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(b) HIMANSHU DAGAR
S/o late Sh. Rohtash Singh
R/o H. No. 31/3, Jia Sarai
IIT, New Delhi - 110 016
(c) SMT. ROHINI DAGAR
D/o late Sh. Sh. Rohtash Singh
R/o H. No. 31/3, Jia Sarai
IIT, New Delhi - 110 016
4. VIJENDER SINGH
S/o late Sh. Sheoji Ram Dagar
R/o H. No. 31/3, Jia Sarai
IIT, New Delhi - 110 016
5. RAJINDER SINGH
S/o late Sh. Sheoji Ram Dagar
R/o H. No. 31/3, Jia Sarai
IIT, New Delhi - 110 016
6. SHRI KISHAN
S/o late Sh. Sheoji Ram Dagar
R/o H. No. 31/3, Jia Sarai
IIT, New Delhi - 110 016
7. JIT SINGH
S/o late Sh. Sheoji Ram Dagar
R/o H. No. 31/3, Jia Sarai
IIT, New Delhi - 110 016
...APPELLANTS
VERSUS
1. RANBIR SINGH KHOKHAR
S/o late Sh. Shiv Lal
R/o 31, Jia Sarai
Near IIT Gate, New Delhi - 110 016
2. MAHANAND KHOKHAR
S/o late Sh. Shiv Lal
R/o 31, Jia Sarai
Near IIT Gate, New Delhi - 110 016
RCAs No. 8793/16 and 8724/16
Miscl. DJ No. 8827/16 Page No. 5 of 27
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Through LRs
(a) SMT. SHAKUNTALA KHOKHAR
W/o late Sh. Mahanand Khokhar
S/o late Sh. Shiv Lal
R/o 31, Jia Sarai
Near IIT Gate, New Delhi - 110 016
(b) ARTI
D/o late Sh. Mahanand Khokhar
S/o late Sh. Shiv Lal
R/o 31, Jia Sarai
Near IIT Gate, New Delhi - 110 016
(c) AMAN KHOKHAR
W/o late Sh. Mahanand Khokhar
S/o late Sh. Shiv Lal
R/o 31, Jia Sarai
Near IIT Gate, New Delhi - 110 016
3. ANOOP KHOKHAR
S/o late Sh. Shiv Lal
R/o C-18, Jia Sarai
Near IIT Gate, New Delhi - 110 016
4. SHAKUNTALA
W/o late Sh. Mahanand Khokhar
R/o C-18, Jia Sarai
Near IIT Gate, New Delhi - 110 016
5. SARJO
W/o Sh. Ranbir Singh Khokhar
R/o C-18, Jia Sarai
Near IIT Gate, New Delhi - 110 016
6. NARENDER
S/o late Sh. Kartar Singh
(Predeceased son of late Sheoji Ram Dagar)
R/o 258, Jharoda Kalan, New Delhi
RCAs No. 8793/16 and 8724/16
Miscl. DJ No. 8827/16 Page No. 6 of 27
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7. PINTO
S/o late Kartar Singh
(Predeceased son of late Sheoji Ram Dagar)
R/o 258, Jharoda Kalan, New Delhi
8. NIRMALA
W/o Sh. Raj Kumar
R/o Ber Sarai,
New Delhi
9. SANTRA
W/o Ravi Dutt Tokas
R/o H. No. 61, Munirka
New Delhi - 110 067
Through LRs
(a) SUSHMA
W/o Sh. Vishwajeetn Shokeen
D/o Ravi Dutt Tokas
R/o Gali No. 7, Ashok Mohalla
Near Bhootonwali Gali
Nangloi, Delhi - 110 041
(b) PRITAM TOKAS
S/o Sh. Ravi Dutt Tokas
R/o H. No. 61, Village Munirka
New Delhi - 110 067
(c) SANJEEV TOKAS
S/o Sh. Ravi Dutt Tokas
R/o H. No. 61, Village Munirka,
New Delhi - 110 067
... RESPONDENTS
AND
Miscl. DJ No. 8827/16 (Old M. No. 03/11)
CNR No. DLST01-000247-2011
1. RANBIR SINGH
S/o Sh. Shiv Lal
R/o H. No. 31/2, Jiya Sarai
New Delhi - 110 016
RCAs No. 8793/16 and 8724/16
Miscl. DJ No. 8827/16 Page No. 7 of 27
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2. MAHANAND KHOKAR
Through LRs:
(a) SHAKUNTALA DEVI
W/o Sh. Mahanand Khokar
R/o 18-C, Village Jia Sarai
New Delhi - 110 016
(b) ARTI KHOKAR
D/o late Mahanand Khokar
R/o 18-C, Village Jia Sarai
New Delhi - 110 016
(c) AMAN KHOKAR
S/o late Mahanand Khokar
R/o 316, Dalton Road, Lalor
Vic-3075, Melbourne, Australia
(d) DR. AJAY KHOKAR
S/o late Mahanand Khokar
R/o 18-C, Village Jia Sarai
New Delhi - 110 016
... CROSS-OBJECTORS
VERSUS
SHEOJI RAM DAGAR
Through LRs
1. TARIF SINGH
S/o late Sheoji Ram Dagar
R/o H. No. 31/3, Jiya Sarai
New Delhi - 110 016
2. DHARAMPAL DAGAR
S/o late Sheoji Ram Dagar
R/o H. No. 31/3, Jiya Sarai
New Delhi - 110 016
3. ROHTASH SINGH
S/o late Sheoji Ram Dagar
Through LRs:
RCAs No. 8793/16 and 8724/16
Miscl. DJ No. 8827/16 Page No. 8 of 27
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3(a) BALA DEVI
W/o late Rohtash Singh
R/o H. No. 31/3, Jiya Sarai
New Delhi - 110 016
3(b) HIMANSHU DAGAR
S/o late Rohtash Singh
R/o H. No. 31/3, Jiya Sarai
New Delhi - 110 016
3(c) ROHINI DAGAR
D/o late Rohtash Singh
R/o H. No. 31/3, Jiya Sarai
New Delhi - 110 016
4. VIJENDER SINGH
S/o late Sheoji Ram Dagar
R/o H. No. 31/3, Jiya Sarai
New Delhi - 110 016
5. RAJENDER DAGAR
S/o late Sheoji Ram Dagar
R/o H. No. 31/3, Jiya Sarai
New Delhi - 110 016
6. KISHAN
S/o late Sheoji Ram Dagar
R/o H. No. 31/3, Jiya Sarai
New Delhi - 110 016
7. JIT SINGH
S/o late Sheoji Ram Dagar
R/o H. No. 31/3, Jiya Sarai,
New Delhi - 110 016
8. NARENDER
S/o late Kartar Singh
(Predeceased son of late Sheoji Ram Dagar)
R/o 258, Jharoda Kalan
New Delhi
RCAs No. 8793/16 and 8724/16
Miscl. DJ No. 8827/16 Page No. 9 of 27
:: 10 ::
9. PINTO
S/o late Kartar Singh
(Predeceased son of late Sheoji Ram Dagar)
R/o 258, Jharoda Kalan
New Delhi
10. NIRMALA
W/o Sh. Raj Kumar
D/o late Kartar Singh
R/o Ber Sarai,
New Delhi
11. SANTRA
W/o Ravi Dutt Tokas
D/o late Sheoji Ram Dagar
R/o H. No. 61, Munirka
New Delhi - 110 067
Through LRs
(a) SUSHMA
W/o Sh. Vishwajeet Shokeen
D/o Ravi Dutt Tokas
R/o Gali No. 7, Ashok Mohalla
Near Bhootonwali Gali
Nangloi, Delhi - 110 041
(b) PRITAM TOKAS
S/o Sh. Ravi Dutt Tokas
R/o H. No. 61, Village Munirka
New Delhi - 110 067
(c) SANJEEV TOKAS
S/o Sh. Ravi Dutt Tokas
R/o H. No. 61, Village Munirka,
New Delhi - 110 067
... APPELLANTS
Date of Institution (RCAs) : 04.02.2011
Date of Institution (Cross-Objection) : 08.04.2011
Date of Arguments : 15.12.2022
Date of pronouncement of order : 24.12.2022
RCAs No. 8793/16 and 8724/16
Miscl. DJ No. 8827/16 Page No. 10 of 27
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Argued by : Sh. S.S. Panwar, Counsel for appellant.
Sh. Sanjiv Soni, Counsel for respondents/ cross-objectors.
JUDGMENT
24.12.2022 1.1 By way of present judgment, I shall dispose of RCAs No. 8793/16 & 8724/16 and cross-objection, bearing Miscl. DJ No. 8827/16. All the three arise out of the same judgment and decree and, therefore, can be disposed of by a common judgment.
1.2 This judgment shall also dispose of application under order XLI Rule 27 CPC moved by appellant and application under order XLI Rule 5 Clause 3(C) CPC moved by respondents.
2. Before dealing with the pleadings and the evidence and judgments, it shall be pertinent to place the appeals and cross- objections in correct perspective.
3.1 A suit for permanent and mandatory injunction was filed by plaintiff seeking to restrain the defendants from interference in repair of Eastern wall of his house. While defending the suit, a counter-claim was filed by defendants pleading that plaintiff was in illegal and unauthorised possession of 40 sq. yards land owned by defendants, towards East of plaintiff's plot.
3.2 RCA No. 8793/16 has been filed by the plaintiff challenging dismissal of his suit for permanent injunction. RCA No. 8724/16 has also been filed by the plaintiff challenging the decree of the counter-claim and cross objection Miscl DJ No. 8827/16 has been filed by defendants challenging findings on issues no. 2a RCAs No. 8793/16 and 8724/16 Miscl. DJ No. 8827/16 Page No. 11 of 27 :: 12 ::
and 2b decided against defendants by trial court.
4. It is the pleaded case of plaintiff/ appellant that he is owner in possession of H. No. 31/3, constituted in Khasra No. 74/2. Village Jia Sarai measuring 200 sq. yards and he is in occupation of the same since 1986. Eastern wall of the house of plaintiff developed certain cracks and needed repairs. When plaintiff started repairing the wall, on 29.05.1992 defendants no. 1, 4, 5 and 6 created nuisance, obstructed and threatened the plaintiff from repairing and reconstructing the wall. They claimed to be tenants of the Pandit Ram Singh, owner of house on Eastern side of plaintiff's house.
5.1 Defendants/ respondents contested the suit raising preliminary objections that Khasra No. 74/2 consists of a gair mumkin baoli which is village common land and vests in Union of India/ Delhi Administration. The suit was thus, bad for non- joinder of necessary parties. It was further pleaded that plaintiff was raising construction partly in Khasra No. 74/2 and partly in Khasra No. 75/2 and he had no right over any of the two. House, bearing No. 31/2 in Khasra No. 75/2 belonged to family of answering defendants. Plaintiff is pleaded to have encroached upon area measuring 30 feet x 12 feet beyond the electric pole. Said encroached portion, is pleaded to be in Khasra No. 75/2, whereon plaintiff has no right, title or interest. It is next pleaded that on the South side, house of Shanti Paharia is also not located entirely in Khasra No. 74/2 and she has also encroached upon Khasra No. 75/2 beyond the electric pole. Khasra No. 74/2 is RCAs No. 8793/16 and 8724/16 Miscl. DJ No. 8827/16 Page No. 12 of 27 :: 13 ::
pleaded to be baoli belonging to Union of India. Defendant has also pleaded and relied upon a site plan and identified the encroached portion, bounded in red colour. The suit of plaintiff is thus, pleaded to be mischievous and misconceived, and prayed to be dismissed.
5.2 Defendants also filed a counter-claim claiming to be owners in possession of unacquired portion of Khasra No. 75/2. It is pleaded that in November/ December 1986, plaintiff started construction of pucca structure on an area measuring 250 sq. yards falling partly in Khasra No. 75/2 and partly in Khasra No. 74/2 and illegally encroached upon and took forcible possession of about 40 sq. yards in Khasra No. 75/2 belonging to defendants/ counter-claimants. The said portion is shown bounded in red in the site plan (annexure-A). This document has been exhibited as Ex.DW1/1 in the affidavit of Ranbir Singh Khokhar towards his examination-in-chief. However, inadvertently, on the document, it has been exhibited as Ex.PW4/1, which is actually the site plan of plaintiff's house.
This court shall, therefore, read the defendants' site plan as 'Ex.DW1/1'. Defendants have also pleaded about pendency of another suit between parties, bearing suit no. 145/82 titled as Kanwar Lal & Ors. Vs. Shib Lal & Ors. and the action of plaintiff is stated to be in contempt of an order passed in the aforesaid suit.
6. Plaintiff filed replication to the written statement reiterating the contents of plaint; written statement and counter-claim RCAs No. 8793/16 and 8724/16 Miscl. DJ No. 8827/16 Page No. 13 of 27 :: 14 ::
therein have been denied. However, plaintiff did not file detailed reply to counter-claim and reserved his right to file the same on being supplied copies of all documents/ applications and orders relied therein.
7.1 On the pleadings of parties, trial court framed following issues:
"1. Whether plaintiff is entitled to decree of permanent injunction as prayed for? OPP
2. Whether plaintiff is entitled to decree of mandatory injunction as prayed for? OPP
3. Relief."
7.2. Thereafter, vide order dated 24.09.2022, on the pleadings of counter-claim and written statement filed by defendants/ respondents, trial court framed further following issues :-
"2(a) Whether the suit of the plaintiff is bad for non- joinder of Govt. of India as necessary party? OPD 2(b) Whether the land in question consists of Baoli, and if so, whether the same is gair mumkin baoli and common land? OPD 2(c) Whether the defendants are entitled for the decree of demolition as well as of possession against plaintiff as mentioned in counter-claim? OPD"
8.1 Parties led evidence in support of their respective cases. Plaintiff examined 7 witnesses in support of his case. Sh. Kailash Kumar, Patwari was examined as PW-1. Sh. Sunil Kumar, RCAs No. 8793/16 and 8724/16 Miscl. DJ No. 8827/16 Page No. 14 of 27 :: 15 ::
Patwari (Halka) was examined PW-2, who proved khasra girdwari (Ex.PW2/1) and copy of Khasra No. 408/75/2 (Ex.PW2/2). Suraj Singh, Head Constable was examined as PW- 3, who proved record pertaining to FIR No. 72/88 (Ex.PW3/A). Plaintiff examined himself as PW-4 and proved site plan of his house (Ex.PW4/1). Ct. Ravinder and Ct. Bhopal Singh were examined as PW-5 and PW-6, respectively, who proved record pertaining to FIR No. 131/89 (Ex.PW5/1 and ExPW6/1). Sh. Tek Chand, LDC from Record Room, Revenue was examined as PW-7, who proved record pertaining to khasra no. 74/02, 75/02, Jia Sarai (Ex.PW7/1).
8.2 In support of their case, defendants examined 6 witnesses.
Defendant no. 1 examined himself as DW-1. Sh. Kailash Kumar, Patwari was examined as DW-2 however, he could not produce the summoned record. Sh. Kailash Kumar, Patwari was examined as DW-3, who proved demarcation record pertaining to Khasra No. 408/75 (Ex.DW1/P3). Ct. Ravinder Singh was examined as DW-3, who proved record pertaining to FIR No. 72/88 (Ex.DW2/1). Sh. Ashwini Malhotra, Asst. Ahlmad was examined as DW-4, who had brought the record pertaining to suit no. 145/82. Sh. Joginder Singh, Kanongo was examined as DW-5, who had brought the award file no. 1095 pertaining to Khasra No. 75, Village Jiyasarai. Sh. Rakesh Kumar. Halka Patwari was examined as DW-6, who had brought the field book in respect of entire village of Jiya Sarai and deposed that land in respect of Khasra No. 74 consists of total 3 bigha 14 biswas land; nature of land is gair mumkin bawri; and nature of land in respect of RCAs No. 8793/16 and 8724/16 Miscl. DJ No. 8827/16 Page No. 15 of 27 :: 16 ::
khasra no. 75 was not mentioned in the field book.
8.3 On the basis of pleadings and evidence that had come up on record, plaintiff's suit has been dismissed holding that plaintiff failed to establish his ownership qua H. No. 31/3 falling in Khasra No. 74/2, as he had not examined his predecessor-in-
interest, Pandit Ram Singh. Thus, he was held not entitled to the injunction prayed. Issues no. 1 and 2 were thus, decided against plaintiff.
9.1 While dealing with issues no. 2a and 2b, trial court took the view that suit land falls in Khasra No. 74/2 whereas, gair mumkin baoli existed in Khasras No. 74 and 74/1. Therefore, Govt. of India was not a necessary party and the land in question did not consist of the baoli. Both the issues were decided against defendants.
9.2 While dealing with issue no. 2(c), trial court held that defendants were the owners of unacquired portion of Khasra No. 75/2 measuring 4 biswas, i.e., 200 sq. yards. Trial court further took the view that plaintiff failed to prove his ownership of house purchased from Pandit Ram Singh, since Pandit Ram Singh had not been examined. Further observing that plaintiff had failed to prove that their existed any house of Ram Singh; question of existence of partition wall between house of plaintiff and alleged Ram Singh, did not arise. Accordingly, the suit was dismissed and counter-claim was allowed.
10. Aggrieved by the aforesaid judgment and decree, two RCAs No. 8793/16 and 8724/16 Miscl. DJ No. 8827/16 Page No. 16 of 27 :: 17 ::
appeals and a cross-objection have been preferred. Plaintiff is aggrieved by his suit having been dismissed and defendants' counter-claim having been allowed. Defendants are aggrieved by issues no. 2a and 2b having been decided against defendants.
11. Plaintiff/ appellant, with his appeals moved application under order XLI Rule 27 CPC seeking to place on record documents, i.e., GPA, Agreement to Sell, Receipt, Will etc. evidencing acquisition of title by Pandit Ram Singh and further transfer of title from Pandit Ram Singh to plaintiff. Respondents/ defendants moved an application under order XLI Rule 5 Clause (3C) CPC seeking directions to LRs of appellant to pay mesne profits/ damages/ use and occupation charges to respondents.
12.1 Sh. S.S. Panwar, Counsel for plaintiff/ appellant has strongly contested the impugned judgment. It is argued that trial court erred in ignoring the fact that plaintiff's possession is not disputed and stands established. There was no occasion to have dismissed the suit seeking to repair the wall. Trial court was greatly influenced by the fact that Pandit Ram Singh was not examined, whereas, no onus had been placed upon plaintiff to prove his title. Nonetheless, the documents of title in original have been sought to be placed on record along with application under order XLI Rule 27 CPC. It is also argued that Khasra No. 74/2 is far away from Khasra No. 75/2. There was no occasion for the plaintiff to have possessed any part of Khasra No. 75/2. It is argued that trial court has erred in holding the defendants to be owner of suit land on the basis of reports Ex.DW1/P4 and sizra RCAs No. 8793/16 and 8724/16 Miscl. DJ No. 8827/16 Page No. 17 of 27 :: 18 ::
Ex.DW1/P3. It is argued that these documents only prove that defendants were owners of 200 sq. yards land in Khasra No. 75/2 and in possession thereof. This does not in any manner fix the identity of suit land and further prove that plaintiff has encroached upon any part of Khasra No. 75/2.
12.2 Referring to testimony of DW-1, it is pointed out that he has claimed defendants to be owners in possession of 400 sq. yards land in Khasra No. 75/2; whereas, khasra girdawri (Ex.DW1/P5) records Ranbir Singh to be possession of 200 sq. yards, i.e., 4 biswas land in Khasra No. 75. On the other hand, khasra girdawri (Ex.PW1/D2) records Ranbir Singh to be in possession of 3 biswas land as gairmarusi tenant and Shakuntla Devi, wife of Mahanand Khokkar to be in possession of 1 biswa land, i.e, 50 sq. yards. Further the land in possession of Ranbir Singh is a 'well' as per the aforesaid documents. Pointing out different stands having been pleaded and documented w.r.t. area in ownership of defendants; it is argued that defendants have failed to establish themselves to be in possession of 200 sq. yards of land. Referring to khasra girdawri (Ex.PW2/1). it is argued that land is shown as private land of Smt. Revati etc. and plaintiff Sheoji Ram is shown in possession of 4 biswas, i.e., 200 sq. yards, which is contrary to case of defendants that Khasra No. 74/2 is a baoli and plaintiff is an encroacher on baoli land. It is also pointed out by Sh. Panwar, Counsel for appellant that site plan (Ex.DW1/1) relied upon by defendants, shows the allegedly encroached portion in red boundary. A study of the site plan reveals that red bounded portion is not just on the land owned by RCAs No. 8793/16 and 8724/16 Miscl. DJ No. 8827/16 Page No. 18 of 27 :: 19 ::
plaintiff. It covers the land owned by Shanti Paharia and part of land owned by Ranbir Singh and partly over a gali/ passage. It is thus, argued that trial court has greatly erred in holding that plaintiff has encroached upon 40 sq. yards of defendants' land. It is argued that there was no occasion for trial court to have decreed the counter-claim without defendants leading cogent and convincing evidence and without other alleged encroachers having been impleaded as parties. Both the appeals are therefore, sought to be allowed.
13.1 Contesting the appeals, Sh. Sanjiv Soni, Counsel for defendants/ respondents argued that there is no error in findings recorded by trial court as regards the counter-claim. Plaintiff failed to prove his right, title or interest in the suit property especially, 40 sq. yards portion, which has been encroached upon and belongs to defendants. It is argued that plaintiff's suit was for a discretionary relief of injunction, which has been rightly denied to him, as he has not come with clean hands and had concealed vital information. Ownership and purchase from Pandit Ram Singh, has not been established. Moreover, the land owned by plaintiff falls in a old baoli of village, which is a common land. Being an encroacher, plaintiff has been rightly denied the relief of injunction.
13.2 On the point of counter-claim, it is argued that since the plaintiff did not file a detailed reply to counter-claim, he is deemed to have admitted the same. It is also argued that issues no. 2a and 2b have been wrongly decided against defendants.
RCAs No. 8793/16 and 8724/16 Miscl. DJ No. 8827/16 Page No. 19 of 27:: 20 ::
Plaintiff himself having pleaded that his house falls in baoli land in Khasra No. 74/2, trial court should have held that Government was a necessary party, as baoli was a public land. Reference has been made to demarcation report (Ex.PW7/1) wherein, it has been recorded that baoli existed in Khasra No. 74 and the remaining portion which was not baoli, had been acquired. Relying upon law laid down by Hon'ble Supreme Court of India in Jitendra Singh Vs. Ministry of Environment & Ors. Civil Appeal No. 5109/19 decided on 25.11.2019, it is argued that encroachment upon baoli, which is a source of natural water, cannot be condoned. Appeals by the plaintiff are sought to be dismissed and judgment and decree have been prayed to be upheld.
14. Defendants/ respondents have also moved an application under order XLI Rule 5 Clause (3C) read with Section 151 CPC seeking directions for LRs of appellant to pay mesne profits/ damages/ user occupation charges for illegal, unauthorised possession of 40 sq. yards of suit land possessed by the plaintiff and his LRs. Relying upon law laid down in M/s Atma Ram Properties Vs. M/s Federal Motors, it is argued that defendants have been deprived of use and occupation of their property, ought to be compensated by illegal occupiers.
15. I have heard Sh. S.S. Panwar, Counsel for appellants and Sh. Sanjiv Soni, Counsel for respondents/ cross-objectors. With their assistance, I have gone through the voluminous record and impugned judgment.
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16.1 A study of impugned judgment reveals that trial court was greatly influenced by defendants' counter-claim asserting ownership on 40 sq. yards land. In the face of allegations of encroachment by plaintiff and assertion that defendants have been deprived use and occupation of 40 sq. yards of land, trial court glossed over the plaintiff's suit. Court also ignored that in issues framed for plaintiff's suit, he was no required to prove his ownership. Plaintiff's claim in the suit as reflected in issues no. 1 and 2 was limited to repairing the existing wall in the house already constructed by him. Trial court even failed to notice the pleadings of the defendants wherein, there was a clear admission regarding plaintiff being in possession of the land claimed by the defendants to be encroached upon by him. In fact, the counter- claim is an admission to the plaintiff's case that he is in long possession of allegedly encroached portion and has raised construction of a house thereon. Court also ignored the fact that the defendants instituted the counter-claim as a counterblast to the plaintiff's suit. It is not that the defendants had instituted a suit claiming their possession, shortly after the alleged encroachment.
16.2 As per defendants' own claim, construction was raised in the alleged encroached portion way back in November/ December, 1986 and the counter-claim was filed in the year 1992. Thus, for almost six years as per the admission so of defendants itself, they had not raised any dispute about the encroachment. Though, it has been pleaded that in suit no. 145/82, a contempt petition had been filed. However, no such RCAs No. 8793/16 and 8724/16 Miscl. DJ No. 8827/16 Page No. 21 of 27 :: 22 ::
application or pleadings of said suit have seen the light of the day. Trial court also ignored the fact that the so called 40 sq. yards deficit in the land owned by defendants, is not attributed to the plaintiff alone. Site Plan (Ex.PW4/1) relied upon by defendants depicting the allegedly encroached portion spreads over to a common passage/ rasta, house of another neighbour in the South, namely, Shanti Paharia and house of appellant/ plaintiff.
16.3 The alleged other encroachers have not been impleaded as parties. The users of the rasta have also not been made a party. In the absence of persons who are also encroachers as per the case of defendants themselves, having been made party and put to trial, the counter-claim was not sustainable. Secondly, the entire deficit area cannot be recovered from the plaintiff alone. Trial court has also ignored that defendants' counter-claim does not plead the exact demarcations or measurements of boundaries of portion allegedly encroached upon by plaintiff and also the size/ demarcation/ boundaries of their own plot. Counter-claim is thus, a half baked petition without necessary parties having been impleaded and without necessary specification and details having been pleaded or proved. Decreeing such a claim shall not be possible to be executed. Order XX Rule 9 CPC enjoins upon a decree to contain a description of the immovable property subject matter of the suit, so as to identify the same either by boundaries or numbers. For ready reference, order XX Rule 9 CPC is reproduced herein below:-RCAs No. 8793/16 and 8724/16 Miscl. DJ No. 8827/16 Page No. 22 of 27
:: 23 ::
"Order XX JUDGMENT AND DECREE ...
9. Decree for recovery of immovable property. - Where the subject matter of the suit is immovable property, the decree shall contain a description of such property sufficient to identify the same, and where such property can be identified by boundaries or by numbers in a record of settlement or survey, the decree shall specify such boundaries or numbers."
16.4 Even if the counter-claimants/ defendants' case is presumed to be correct that they owned 200 sq. yards land and at site, they are in deficit of about 40 sq. yards land, the deficit cannot be decreed from plaintiff's land in the absence of any demarcation report about the exact boundaries of land of defendants;
especially, in face of their own site plan, which shows part of their land to have been possessed by persons other than plaintiff as well. This court is therefore, of the view that defendants/ counter-claimants' case suffers from non-joinder of necessary parties.
17. I also find merits in the submissions of Sh. Panwar, Counsel for appellant that trial court has erred in recording findings and observations that plaintiff has failed to prove his ownership, by placing on record his title documents. There admittedly was no issue requiring plaintiff to establish his ownership. As noticed in para - 16.1 (above), his suit is limited to that of injunction from interfering in his possession and he of course, has proved his possession which has been admitted in counter-claim itself.
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18. In the absence of any issue or onus having been placed upon plaintiff to prove his title, there was no requirement of plaintiff to prove his title. Therefore, trial court has committed an error in returning a finding that plaintiff failed to establish his ownership. Plaintiff to assert his possession has relied upon khasra girdwari (Ex.PW2/D1), which records him to be in possession of 4 biswa land in Khasra No. 74/2. Therefore, the onus placed upon him to prove his possession stands discharged. With these observations, I also dispose of the application under order XLI Rule 27 CPC filed by plaintiff seeking to place on record title documents. Since, there was no issue framed and no onus placed upon him, it was not incumbent upon him to prove title and, therefore, this court does not require appellant at the appellate stage to prove his title. The application is thus, dismissed. The original documents placed on record along with the application be returned to the appellant/ plaintiff or his LRs.
19.1 Before decreeing the defendants' counter-claim and making up the deficit of his 40 sq. yards land, trial court was also required to record a finding whether plaintiff was in possession of excess of his share of 200 sq. yards land. Khasra Girdawri (Ex.PW2/D1) records plaintiff to be in possession of 4 biswa land, i.e., 200 sq. yards. Therefore, before directing the plaintiff to vacate 40 sq. yards land, the court was also required to record a finding that plaintiff was in possession of excess of 200 sq. yards land. From the facts on record that have come up and from the study of site plans, it is noticed that there is a 'mazaar' on the land and also rastas. The hypothesis that comes to the mind of RCAs No. 8793/16 and 8724/16 Miscl. DJ No. 8827/16 Page No. 24 of 27 :: 25 ::
this court is that some portions of the lands claimed by plaintiff and defendants, have probably been accounted for in the rastas and 'mazaar' etc. Thus, none of the parties can probably get actual physical possession of their respective 200 sq. yards. There of course, is no clear demarcation report of the respective portions of the plaintiff and defendants 19.1.1Judicial notice can also be taken of the fact that plot size as entered in revenue records when converted to urbanised use, i.e., for residential use always looses some land for common purposes, i.e., rastas etc. In the present case as well, rasta is shown towards IIT wall and there of course is a rasta on the South side which is indicated in the site plan (Ex.PW4/1) relied upon by defendants themselves. These rastas or area of land covered under them has not been accounted for in the pleadings and evidence. Therefore, trial court's findings that counter-
claimant is entitled to recovery of deficit 40 sq. yards from plaintiff alone, is an absolutely erroneous finding. It has not come on record that rasta towards IIT wall side is a part of Khasras No. 74/2, 75/2 or independent thereof.
19.2 The argument of Sh. Soni, Counsel for defendants/ respondents/ cross-objectors that the entire piece of land claimed by plaintiff is illegal and unauthorised being a baoli land, does not stand established. It is Khasra No. 74, which constituted the baoli as has been mentioned in demarcation report (Ex.PW7/1). This report bears the date of April, 1982. To distinguish, Khasra No. 74 from 74/2, plaintiff has placed on record khasra girdwari RCAs No. 8793/16 and 8724/16 Miscl. DJ No. 8827/16 Page No. 25 of 27 :: 26 ::
of the year 1995-96 (Ex.PW2/1), which records Khasra No. 74/2 to be owned by Revati etc. Plaintiff is recorded to be in possession of 4 biswa land. Thus, the argument that plaintiff was in possession of a natural water body, i.e., baoli, is not established and is contrary to records. Thus, reliance upon law laid down in Jitender Kumar's case (supra) is misplaced. Finding recorded by trial court on issues no. 2a and 2b cannot be faulted and the same is upheld. Cross-objections by defendants challenging the findings on issues no. 2a and 2b is dismissed.
20. In view of findings recorded in para-16 (above), this court is of the opinion that since the plaintiff/ appellant has been in established possession of the suit land, his right to repair the walls of house under his occupation has been wrongly denied by trial court. Plaintiff's appeal to that extent is allowed and defendants/ respondents are restrained from interfering in the repairs being carried out by plaintiff in the wall on the Eastern side of his house.
21. This court is further of the opinion that the counter-claim of the defendants seeking decree of demolition and possession cannot be sustained in the absence of clearly demarcated and described area allegedly encroached upon by plaintiff and also in the absence of other alleged illegal possessors having been made parties, as discussed. Plaintiff's appeal as regards findings on the counter-claim is also allowed and the counter-claim is dismissed.
22. Since this court has reversed the finding of trial court as RCAs No. 8793/16 and 8724/16 Miscl. DJ No. 8827/16 Page No. 26 of 27 :: 27 ::
regards defendants' right to seek possession of alleged encroachment, application moved by defendants under order XLI Rule 5 clause (3C) is dismissed.
23. Trial court record be sent back along with copy of the judgment.
24. No order as to the costs. Decree sheet be prepared.
25. Files be consigned to Record Room.
Original signed copy of the judgment be placed in file of RCA No. 8724/16 and attested copy thereof, be placed in files of Digitally RCA No. 8793/16 and Miscl. DJ No. 8827/16. signed by NAROTTAM NAROTTAM KAUSHAL KAUSHAL Date:
Announced in the open Court 2022.12.24
on this 24th day of December, 2022 16:56:11
+0530
(NAROTTAM KAUSHAL)
Principal District & Sessions Judge
South District: Saket Courts
24.12.2022 (v)
RCAs No. 8793/16 and 8724/16
Miscl. DJ No. 8827/16 Page No. 27 of 27