Delhi District Court
Shiv Shankar Gaur vs Sh. Krishan Kumar on 3 May, 2018
IN THE COURT OF SHRI MS. RICHA SHARMA, CIVIL JUDGE
01 (WEST), TIS HAZARI COURTS, DELHI
SCJ No. 609976/2016
Date of Institution : 09.06.2008
Date of reservation of judgment : 23.04.2018
Date of pronouncement of Judgment : 03.05.2018
Shiv Shankar Gaur,
S/o Late Sh. S. S. Gaur,
R/o 36, Bhagat Colony,
A2 Block, West Sant Nagar,
Burari, Delhi.
.................Plaintiff
vs
1. Sh. Krishan Kumar,
S/o Sh. Mahesh,
C/o Sh. Nirmal Singh,
R/o 218/9, Bhagat Colony,
A2 Block, West Sant Nagar,
Burari, Delhi - 84.
2. Sh. Naveen Tyagi,
S/o Sh. Devender Tyagi,
R/o House No. 726, Vill. & PO Burari,
Delhi 84.
3. Sh. Sanjay Tyagi,
S/o Sh. Ramanand Tyagi,
R/o H. No. 162, Bhagat Colony,
Burari, Delhi - 84.
4. Station House Officer
P.S. : Timar Pur,
Delhi. ..............Defendants
SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 1/26
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
JUDGMENT
1. In brief the factual matrix of the present case are that the plaintiff is the owner in possession of plot measuring 67 square yards, out of Khasra No. 14/10, situated in the area of village Kamalpur Majra, Burari, Abadi known as Chandan Vihar, West Sant Nagar, A2 Block, Delhi. The said plot is more specifically shown in red colour in the site plan, hereinafter referred to as the "suit property". It is submitted that the plaintiff had purchased the suit property from one Sh. Naveen Tyagi, who is defendant No. 2 and he inturn had purchased the suit property from Sh. Sanjay Tyagi, who is defendant No. 3. It is submitted that defendant No. 1 is claiming himself to be the alleged owner of the suit property.
2. It is submitted that the plaintiff had purchased the suit property from defendant No. 2 on 26th February, 2008 pursuant to General Power of Attorney, Agreement to Sell, Will, Receipt, Affidavit and Possession letter all dated 26.02.2008 and these aforementioned were duly notarized. It is further submitted that after purchase of the suit property in February, 2008 the plaintiff had constructed a room thereupon and raised boundary wall around the suit property. It is further submitted that the plaintiff is in possession of entire chain of documents prior to his purchase from Sh. Naveen Tyagi.
3. It is also stated that the colonizer Sh. Shyam Sunder Tyagi, had purchased the entire khasra from the farmer and had sold the said area in small portions, having different dimensions. It is further stated that at the SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 2/26 time of demarcating the said colony, the main colonizer had left the galis and shown the same in the site plan prepared. An affidavit was also given by Sh. Shyam Sunder Tyagi on 04.05.2006, that he had left the galis as stated by the plaintiff and there is no interruption in the same.
4. It is further stated by the plaintiff that the defendants are local property dealers and are in the habit of grabbing the properties of other persons and on 29.09.2007 the above named defendants along with their accomplices tried to grab the gali measuring about 20 feet and tried to raise boundary wall around the gali. The said illegal act was objected by the plaintiff and other residents of the locality and the same was also reported to the police officials and due to the timely intervention of the police officials, defendants could not succeed in their notorious intentions of grabbing the gali.
5. It is further submitted that at the time of purchase of plot measuring 67 square yards from defendant No. 2 , it was agreed between the plaintiff and defendant No. 2 that the plot in question is a LShape plot, having galis about 20 feet on both sides i.e., in West and South direction. It is further averred that the defendants in collusion with each other are trying to grab the suit property owned by the plaintiff. It is further stated that the suit property which is in possession of the plaintiff had been sold by defendant No. 2 to defendant no. 1, without showing any of the documents and when the plaintiff inquired as to where the plot of the plaintiff exists, which has been purchased by the plaintiff from defendant No. 2, defendant No. 2 stated that he had not sold the plot to the plaintiff which is in possession of the plaintiff, and on the contrary stated that the plot sold to the plaintiff falls in Gali measuring 20 feet and that the SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 3/26 plaintiff shall raise his boundary wall in the gali. It is stated by the plaintiff that he is in peaceful possession of the suit property and has also constructed a room thereupon, the photographs showing the possession of the plaintiff upon the suit property and the gali around the plot owned by the plaintiff are attached with the plaint.
6. Again on 20.05.2008, defendants threatened to disposses the plaintiff from the suit property, stating that the suit poperty being in possession of the plaintiff belongs to defendant No. 1 as defendant no. 2 had never sold the suit property to the plaintiff. In fact it is stated by the plaintiff that he is in possession of entire documents which reveals that he is the actual owner and in physical possession of the suit property. The defendant in connivance with each other are trying to grab the gali measuring 20 ft. and thereby depriving the residents of the locality to have an easy ingress and egress.
7. The matter was again reported to the police on 20.05.2008, wherein plaintiff, defendants and other persons of the locality were called to the police station. The IO of the case who on verifying the actual fact and who on seeing the documents stated that the plot on which the plaintiff is having possession belongs to Sh. Krishan Kumar and the plaintiff should raise boundary wall to the adjoining gali measuring 20 feet.
8. It is further submitted that defendant No. 4 and its officials are working in collusion with defendant No 1 to 3, in order to deprive the plaintiff of his plot in question and are further helping defendant No. 1 to 3 in grabbing the gali measuring 20 feet and despite several complaints no action has been taken in this matter.
9. It is further averred that on 04.06.2008, defendant No. 1 to 3 again came SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 4/26 to the suit property and threatened the plaintiff of dire consequences stating that in case the plaintiff failed to vacate the suit property then he shall face dire consequences and defendant No. 1 to 3 shall get the plaintiff forcibly evicted from the suit property.
10. The plaintiff immediately reported the matter to the police, however, the police officials failed to take any action in the matter. On 06.06.2008, the defendant Nos. 1 to 3 again met with plaintiff and threatened him that they shall sell off the suit property to some other person and the said person shall get the suit property vacated from the plaintiff forcibly within 48 hours. It is further averred by plaintiff that he is the owner of the suit property and defendant No. 1 is having no right, title or interest over the suit property.
11. By way of the present suit, plaintiff has prayed for :
(a) A decree of permanent injunction in his favour and against the defendants, thereby restraining the defendants, their relatives, agents,servants, friends, assigns, nominees from forcibly dispossessing the plaintiff from the suit premises i.e., Plot measuring 67 Square Yards out of Khasra No. 14/10 situated in the area of village Kamalpur Majra, Burari, abadi known as Chandan Vihar, West Sant Nagr, A 2, Block, Delhi marked red in colour in the site plan annexed along with the plaint.
(b) Restraining the defendants, their relatives, agents, servants, friends, assigns, nominees from forcibly grabbing the gali/road surrounding the plot of the plaintiff towards West and South direction, marked green in colour in the site plan annexed along with the plaint.
(c) A decree of Mandatory Injunction in his favour and against the defendants, thereby directing the defendants not to create any hindrance SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 5/26 in the smooth functioning of the road measuring 20 feet wide, on both the sides of the plot of the plaintiff, towards South and West direction, more specifically shown in Green colour in the site plan annexed to the plaint.
(d) To direct the defendant No. 4 i.e. SHO PS Timar Pur, Delhi to take action against defendant No. 1 to 3 against their illegal act of grabbing the property of the plaintiff and also to look into the matter so that defendant Nos. 1 to 3 do not succeed in grabbing the gali measuring 20 feet, as shown Green in colour in the site plan.
(e) The costs of this suit may also be allowed in favour of the plaintiff and against the defendants.
(f) Any other and such further relief as the court deems fit and proper.
12. In the written statement defendant no.1 has stated that the present suit is not maintainable as the same has not been filed by an appropriate person and plaintiff has no locus standi to file the present suit and therefore the suit is liable to be dismissed. It is further averred that the present suit is wholly misconceived, groundless and unsustainable. It is also stated that the plaintiff has suppressed material facts in the plaint and the plaint is without any cause of action. It is submitted by defendant No. 1 that he had purchased one side open plot of land admeasuring 65 Sq. Yards situated at Khasra No. 14/10, in the area of village Kamalpur, Majra Burari, adabai known as A 2 Block, West Sant Nagar, Bhagat Colony, Burari, Delhi 84 from defendant No. 3. After purchasing the said plot, he covered his land by raising boundary wall having approximately three feet height. It is also stated by him that he is a petty contractor and on 14.05.2008, he was shocked to see that a room was illegally constructed on his plot, upon SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 6/26 inquiry he came to know that the said room was illegally constructed by the plaintiff and the latter is averting that he is the actual and rightful owner of the said plot. It is stated that when he came to know about the said illegal construction, he contacted the plaintiff and asked about the said illegal construction of the room on his plot and thereafter, plaintiff started giving threats to defendant No. 1 and also abused him. It is also stated that the defendant No 1, immediately lodged a criminal complaint against the plaintiff with the concerned police station and requested the police officials to enquire and investigate the matter at the earliest or else the defendant would be dispossessed from his own property purchased from the defendant No. 3. After inquiring the matter and after taking statements from the seller of the said plot (defendant No. 3) and other concerned persons, an FIR bearing no. 263/08, PS Timarpur, under Section 447/506 IPC on 30.05.2008, was registered. It is also stated that the plaintiff had purchased a piece of land admeasuring 67 square yards in the same khasra from defendant No. 2, who had purchased the same from defendant No. 3 and the said plot is situated in between the plots of plaintiff and defendant No. 1 and the plaintiff instead of taking possession of his purchased plot is illegally proclaiming upon the plot of the defendant with sole intention to grab the property of defendant illegally and unauthorizedly to give L shape to his plots. In rest of the W.S defendant no.1 has denied the averments made in plaint and prayed that the suit of the plaintiff be dismissed with heavy costs and special compensatory costs.
13. Written statement filed on behalf of defendant no.2, wherein it is stated that the present suit is not maintainable as the same has not been SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 7/26 filed by an appropriate person and is liable to be dismissed. The present suit is wholly misconceived, groundless and unsustainable and is liable to be dismissed as such. It is also stated that the plaintiff has not approached this court with clean hands and has suppressed the material and vital facts. It is also stated that the present suit is without any cause of action. It is also stated that he had purchased one side open plot of land area measuring 67 square yards from defendant no.3, on 04.01.2008 vide GPA, Agreement to Sell, Affidavit and Possession letter and on the same date defendant No. 3 gave possession of the said plot to him and the plot purchased by him is the one which was adjacent to the plot alleged by the plaintiff to be his, as all the plots are single side open plots which has a 20 feet gali on north. It is also stated that, thereafter, defendant No. 2 sold the above said plot to the plaintiff upon his request that he is also the owner of the adjacent plot. Thereafter, he sold the said plot to the plaintiff on 26.02.2008, and also gave possession to him. It is also stated that the at the time of purchase, defendant No. 3 clearly stated to defendant No. 2 that the said plot is one side open plot and accordingly documents were prepared and executed. It is also clearly stated to the plaintiff that the plot was single sided and plaintiff agreed for the same and accordingly purchased the said plot and paper were accordingly prepared and executed. It is further stated by defendant No. 2 that on 19.05.2008, when he came to know that the plaintiff had constructed a room on the plot of the defendant No 1 and is claiming that the said plot was sold to him by defendant No. 2. It is further stated by defendant No. 2 that the plot on which plaintiff has done construction is L shape plot and not one sided open plot. It is also stated that a criminal complaint was SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 8/26 also filed by defendant No 1 against plaintiff and at the time of inquiry, defendant No. 2 was called by the police officials and he had given a statement that the plot of the plaintiff is at the place where he is claiming a gali and not at the place where he has constructed the room. In rest of the W.S., the averments made in plaint were denied and prayer is made for dismissal of suit with heavy cost.
14. In Written statement of defendant no.3, it is stated that the present suit is not maintainable as the same has not been filed by an appropriate person and that the plaintiff is suppressing material and vital facts and that the suit is without any cause of action. It is further stated by defendant No. 3 that he had purchased a plot of land area measuring 3630 square yards from landlords/farmers and subsequently plotted it and sold it to different persons including defendant No. 1 and 2 and it was he who had left gallies etc., while plotting the said land. It is further stated by defendant No. 3 that at the time of sale of the said suit property he clearly stated to defendant No. 2, that the suit property was one side open plot and the documents were accordingly prepared and executed. On 19.05.2008, defendant came to know that the plaintiff has illegally constructed a room on the plot of defendant No. 1 and plaintiff is claiming that it his plot and is further averring that the plot sold to him was L shaped and not one sided plot. It is also stated by defendant No. 3 that a criminal complaint was filed by defendant No1, against plaintiff and he being a colonizer was also called up by police officials to give his statement, whereby he stated that the plot of the plaintiff is at the place where he is claiming a gali and not at the place where he has constructed the room and all the plots in the said line is one sided plot and none of them is L Shaped. In SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 9/26 rest of the written statement the averments made in plaint are denied and prayer is made for dismissal of suit.
15. Replication to the written statement of defendants was also filed by the plaintiff wherein the averments made in written statement of defendants were denied and the averments made in the plaint were reiterated.
16. Vide Order dated 09.04.2009, following issues were framed by the Ld. Predecessor of this court :
1. Whether plaintiff is entitled for permanent injunction restraining defendant from forcibly dispossessing the plaintiff from suit premises i.e., plot measuring 67 square yards out of Khasra No. 14/10 situated in village Kamalpur Mazra, Burari abadi known as Chander Vihar West, Sant Nagar, A 2 Block, Delhi as shown in red in the site plan? OPP
2. Whether the plaintiff is entitled for permanent injunction restraining defendant from forcibly grabbing gali/road surrounding the aforesaid plot of plaintiff towards west and sought as marked in green in the site plan? OPP
3. Whether the plaintiff is entitled for mandatory injunction directing the defendant not to create any hindrance in the smooth functioning of the road measuring 24 feet wide on both side of the plot towards south and west as shown in green in the site plan? OPP
4. Whether there is no cause of action in favour of plaintiff and against the defendant? OPD.
SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 10/26
5. Whether plaintiff has suppressed vital and material facts and he is therefore not entitled for relief of injunction? OPD.
6. Relief.
17. In order to prove his case, plaintiff examined himself as PW1, and tendered in evidence his duly sworn affidavit Ex.PW1/A, reiterating the contents of the plaint. In his testimony the following documents were exhibited : The site plan Ex. PW1/1 Photocopy of sale deed dated 07.03.2006 Mark A copy of GPA, agreement to sale and Ex. PW1/2 purchase, affidavit and receipt (colly) (OSR) Copy of GPA dated 26.02.2008, Will, Ex. PW1/3 Agreement to sale, Receipt, affidavit, (colly) (OSR) possession letter Photocopy of affidavit dated 04.05.2006 Mark B executed by Shri Shyam Sunder Tyagi Copy of complaint to SHO PS Timarpur Ex. PW1/5 (OSR) Photographs of the suit property and the gali Ex. PW1/6 around the plot (colly) Complaint to Civil Line police station Ex. PW1/7 (OSR) Ex. PW1/5A is deexhibited being not placed on record.
PW1 was crossexamined and thereafter discharged.
18. Plaintiff had also got examined PW2, Sh. Sanjay Singh Chauhan, SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 11/26 however, he was not crossexamined by the defendants.
19. I have heard the arguments advanced by Ld. counsels for parties as well as perused the evidence on record carefully. My issuewise findings are as under :
ISSUE No. 1, 2 and 3(1) Whether plaintiff is entitled for permanent injunction restraining defendant from forcibly dispossessing the plaintiff from suit premises i.e., plot measuring 67 square yards out of Khasra No. 14/10 situated in village Kamalpur Mazra, Burari abadi known as Chander Vihar West, Sant Nagar, A 2 Block, Delhi as shown in red in the site plan? OPP (2) Whether the plaintiff is entitled for permanent injunction restraining defendant from forcibly grabbing gali / road surrounding the aforesaid plot of plaintiff towards west and sought as marked in green in the site plan?OPP (3) Whether the plaintiff is entitled for mandatory injunction directing the defendant not to create any hindrance in the smooth functioning of the road measuring 24 feet wide on both side of the plot towards south and west as shown in green in the site plan? OPP The onus to prove these issues was upon the plaintiff.
All these issues are taken up together as they have a bearing on each other and further involve common questions of law and fact.
20. Plaintiff in order to prove these issue, examined himself as PW1. In his examination in chief, he categorically stated that he is the owner and in possession of the suit property consisting of a plot ad measuring 67 sq. SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 12/26 yards, out of khasra No. 14/10 situated in area of village Kamalpur Mazra, Burari abadi known as Chandan Vihar West, Sant Nagar, A2 Block, Delhi. The suit property has been described by the plaintiff through a site plan on record and the same is Ex. PW1/1. Perusal of the said site plan shows that the suit property is surrounded by 20 feet Gali in the Eastern and the Northern side, but the site plan does not specify as to what lies in the Southern side of the suit property, however, there is abadi on the Western side of the suit property as per the site plan. Further, as per the site plan the suit property is 'L' shaped plot. Further, plaintiff has asserted that he purchased the suit property from defendant No. 2 i.e. Shri Naveen Tyagi and defendant No. 2 in turn purchased the suit property from defendant No. 3 i.e. Sanjay Tyagi. To prove these averments, plaintiff has placed on record complete chain of suit property documents, which are collectively exhibited as Ex. PW 1/2 and Ex. PW 1/3.
21. Perusal of document Ex. PW 1/2, shows that, Shri Sanjay Tyagi had executed a power of attorney in favour of Shri Naveen Tyagi for a plot of land measuring 67 sq. yards, out of khasra No. 14/10, situated in area of village Kamalpur Mazra, Burari abadi known as Chandan Vihar, West Sand Nagar A2 Block, Delhi. Plaintiff has further placed on record an Agreement to Sell and purchase dated 04.01.2018, executed between Sanjay Tyagi (defendant No. 3) and Naveen Tyagi (defendant No. 2) with respect to the suit property. An affidavit with respect to the suit property has also been placed on record asserting to the effect that the suit property was sold in favour of Naveen Tyagi i.e. defendant No. 2 by one Sanjay Tyagi (defendant No. 3). A receipt pertaining to the suit property for a sum of Rs. 1,00,000/ received by Sanjay Tyagi (defendant No. 3) from SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 13/26 Naveen Tyagi (defendant No. 2) is also placed on record by the plaintiff.
22. Thus, plaintiff has duly substantiated and proved through the documents Ex. PW 1/2, that the suit property purchased by plaintiff was actually purchased initially by defendant No. 2 from defendant No. 3 (Shri Naveen Tyagi).
23. It is further submitted by the plaintiff in his examination in chief that the suit property in question was purchased by the plaintiff from defendant No. 2 i.e. Naveen Tyagi on 26.02.2008, and to substantiate this averment, plaintiff has placed on record documents collectively exhibited as Ex. PW 1/3. Perusal of the document Ex. PW1/3 shows that, a GPA dated 26.02.2008, was executed between Shri Naveen Tyagi (defendant No. 2) in favour of plaintiff for the suit property. Further, the said document also shows that an Agreement to Sell dated 26.02.2008, was duly entered between defendant No. 2 and the plaintiff for the suit property in question by virtue of which defendant No. 2 agreed to sell the aforesaid property for a sum of Rs. 1,50,000/ to the plaintiff and a receipt pertaining to the said transaction is also placed on record as a part of document collectively exhibited as Ex. PW 1/3. An affidavit has also been placed on record of Shri Naveen Tyagi (defendant No. 2) specifying the transaction that took place between defendant No. 2 and the plaintiff with respect to the suit property. In lieu of the said transaction that took place between defendant No. 2 and plaintiff, a possession letter was also issued and the same is duly placed on record. Perusal of the said possession letter clearly shows that the vacant possession of the property measuring 67 sq. yards was duly handed over by defendant No. 2 to the plaintiff.
24. Before moving ahead, it is pertinent to mention that certain facts of the SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 14/26 case are not disputed by any of the parties.
Firstly, that a property measuring 67 Sq. Yards out of khasra No. 14/10, situated in the area of village Kamalpur Majra, Burari, abadi known as Chandan Vihar, West Sant Nagar, A2 Block, Delhi was sold by the defendant No. 2 to the plaintiff and the said fact is averred by the plaintiff in his plaint and admitted to by defendant No. 2 in his WS. The real bone of contention which needs to be looked into in the present case is that, whether the suit property in question was actually the property sold by the defendant No. 3 to defendant No. 2, who in turn sold the same to the plaintiff and the said property is actually the property with respect to which the relief in question is sought for by the plaintiff?
25. In order to adjudicate on this point, it is pertinent to note that in the present suit plaintiff has sought a relief of injunction with respect to the suit property measuring 67 Sq. Yards out of khasra No. 14/10, situated in the area of village Kamalpur Majra, Burari, abadi known as Chandan Vihar, West Sant Nagar, A2 Block, Delhi against the defendant. Further, by virtue of the averments of the plaint as well as the averments of the plaintiff made in his affidavit, he has asserted himself to be the owner in possession of the suit property and further claims to have purchased the suit property from defendant No. 2, who in turn had purchased it from defendant No. 3.
26. In order to prove this fact, plaintiff relied upon documents Ex. PW 1/1 to Ex. PW 1/3 alongwith copy of sale deed dated 07.03.2006, which is marked as mark A. Perusal of the document Ex. PW 1/2 shows that it comprises of a General Power of Attorney, Agreement to Sell, Affidavit, Receipt executed by Sanjay Tyagi (defendant No. 3) in favour of Naveen SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 15/26 Tyagi (defendant No. 2) with respect to plot of land measuring 67 sq. yards out of khasra No. 14/10 situated in the area of village Kamalpur Majra, Burari, abadi known as Chandan Vihar, West Sant Nagar, A2 Block, Delhi. It is relevant to mention that all the documents which are collectively exhibited as Ex. PW 1/2 are notarized documents and none of these documents are registered documents. In addition to document exhibited as Ex. PW1/2, plaintiff has placed reliance on documents Ex. PW 1/3, which comprises of a GPA, Agreement to Sell, Receipt, Affidavit, Possession Letter. Perusal of documents Ex.PW1/3 show that, all these documents were executed between Shri Naveen Tyagi (defendant No. 2) and Shiv Shankar Gaur (plaintiff). It is relevant to mention that all the documents exhibited as Ex. PW 1/3 are merely notarized documents and none of the above document are registered document.
27. Collective perusal of the documents exhibited as Ex. PW1/2 and Ex. PW 1/3, clearly establishes that none of these documents amount to absolute title documents and thus the averments of the plaintiff made in the present plaint that he is the owner of the suit property by virtue of these documents stands negated as these documents are not the absolute title documents and they do not confer absolute title upon the plaintiff, so on the basis of these documents, plaintiff cannot be said to be the absolute owner of the property pertaining to which document Ex. PW 1/2 and Ex. PW 1/3 are placed on record.
28. Plaintiff has further placed on record a copy of sale deed which is marked as 'mark A' and the same is dated 07.03.2006. Perusal of the document mark A shows that the sale deed pertains to the 1/3 share of land measuring 4 bigha 16 biswas out of khasra No. 14/10 (416), situated in SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 16/26 revenue estate of village Kamalpur Majra, Burari, abadi known as Chandan Vihar, West Sant Nagar, A2 Block, Delhi, and was executed by one Shri Rahul in favour of one Shri Sanjay Kumar, but what is pertinent to mention qua the said sale deed which is marked as Mark A is that it has remained unproved, as no evidence has been led by the plaintiff to prove the same. No official was called upon by the plaintiff from the Sub registrar office to prove the sale deed marked as Mark A.
29. Now, the important point which needs to be dwelled into is that the plaintiff in the present suit is asserting himself to be the owner and in possession of the suit property and as per plaintiff's own version in the plaint as well as in his affidavit, he is asserting that the property which was sold to him by defendant No. 2 was an L shape plot having galies about 20 ft on both the sides i.e. in the West and the South directions. It is further averred by the plaintiff in para 10 of his affidavit that it was agreed between the plaintiff and the defendant No. 2 that the plot which was sold to the plaintiff (suit property in question) is an L shape plot having galies about 20 ft on both the sides. So being the case, the factum that the plot sold by defendant No. 2 to the plaintiff was an L shape plot as agreed between the plaintiff and the defendant No. 2 must stand proved from the document placed on record, but said fact is not evident from the documents placed on record by the plaintiff and relied upon by him. Perusal of the said documents i.e. Ex. PW 1/2 and Ex. PW 1/3 explicitly show that the plot for which Agreement to Sell, GPA, Affidavit and Possession letter was executed between defendant No. 2 and plaintiff, though was for a plot of land measuring 67 sq. yards out of khasra No. 14/10 situated in the area of village Kamalpur Majra, Burari, abadi known SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 17/26 as Chandan Vihar, West Sant Nagar, Burari but the said property as mentioned in these document does not describe the property as an L Shape plot of land and furthermore the boundary specifications of the property as per document Ex. PW 1/2 and Ex. PW 1/3 is that the said plot of land is sorrounded by other plots on the Eastern, Western and Southern side and it is only on the Northern side that there is a 20 ft. road. Thus, the contentions of the plaintiff as made in his plaint and the examination in chief, stating that the plot sold to him by the defendant No. 2 was an L shaped plot totally stand negated and dismantled by the specification of the property shown in documents exhibited as Ex. PW 1/2 and Ex. PW1/3. The fact that the property with respect to which the documents were executed, between defendant No. 2 and the plaintiff does not have galies of 20 ft. on two sides is a fact established through the documents placed on record by the plaintiff and relied by him. The said fact that the property with respect to which the documents were executed, between defendant No. 2 and the plaintiff does not have galies of 20 ft. on two sides is also admitted by the plaintiff in his crossexamination dated 09.05.2015, whereby it has been categorically stated by the plaintiff that "the personal document in my favour does not mention that the suit property is an L shape or it is two side open having 20 ft. galies". Thus, it is an admitted fact by the plaintiff that the property documents placed on record and relied upon by him (Ex. PW1/2 and Ex. PW 1/3) does not mention that the suit property which was sold to him is open on 2 sides, having a gali of 20 ft on two sides. Moreover, it is averred by the plaintiff in his own affidavit that it was agreed between the defendant No. 2 and the plaintiff that the property which is sold to the plaintiff by defendant SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 18/26 No. 2 is an L shape plot. So being the case, it was imperative upon the plaintiff to prove this fact that the property which was specifically sold to him was an L shape plot and not the one which is open only from one side. Thus the onus was completely upon the plaintiff to show that the property for which he is seeking mandatory injunction is actually the property for which the document relied upon by the plaintiff were executed. The averments made by the plaintiff in his plaint, Affidavit and crossexamination are contrary and not in sync with the document exhibited as Ex. PW 1/2 and Ex. PW1/3. Thus, the identification of the property qua which the present relief is prayed for stands unestablished as the specification of the property as per the averment of the plaintiff is contrary to the documents placed on record.
30. Thus, the contentions of the plaintiff that the property in his possession is an L shape plot is totally contrary to the documents relied upon by the plaintiff himself. It was imperative upon the plaintiff to, firstly have sought for a relief of declaration to the effect that property sold by defendant No. 2 to the plaintiff was actually an L Shaped plot and plaintiff must have also prayed for a consequential relief seeking a rectification of the property document executed in his favour as the document placed on record nowhere state that the propety sold to the plaintiff was an L Shaped plot.
Even the site plan placed on record by the plaintiff and exhibited as Ex. PW 1/1 is contrary to the specifications of the property described in the document exhibited as Ex. PW 1/2 and Ex. PW 1/3. The site plan placed on record by the plaintiff is also not proved. It is noteworthy to mention that the documents relied upon by the plaintiff are SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 19/26 also not inconformity with each other as the description of the suit property as per the site plan is different from the description of the suit property as mentioned in Ex. PW1/2 and Ex. PW 1/3. Further, the site plan Ex. PW 1/1 is devoid of complete specifications as it does not depict the details of the property lying on the two sides of the suit property and moreover the site plan in the absence of it being proved cannot be relied upon by this court, specifically in circumstances where the site plan i.e. Ex. PW 1/1 is contrary to specification of the property as per the property documents placed on record i.e. Ex. PW 1/2 and Ex. PW 1/3.
31. Moreover, the defendants in their WS have raised a valid defence to the contentions of the plaintiff and it has been averred by the defendants that the property sold by defendant No. 2 to the plaintiff was not the suit property but the property adjacent to the suit property and thus the factum that the property sold to the plaintiff was actually the suit property and not the property adjacent to the suit property was to be proved by the plaintiff, but the same remains unproved. Further plaintiff has miserably failed to prove this facts that the documents relied upon by him are true and correct and in sync with the averments of the plaint as from the observations and finding made above, the documents are on the face of it contrary to the pleadings of the plaintiff as far as the description of the property is concerned. The property document does not describe the suit property as an L Shaped plot and nor is this fact established through the boundary specifications of the property stated in the property document (Ex. PW 1/2 and Ex. PW 1/3).
32. Plaintiff has actually filed the present suit seeking equitable relief from the court but equity can be granted in favour of the person who himself SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 20/26 shows equity. The plaintiff is unable to satisfy the court on the basis of the evidences and the documents placed on record that the suit property is actually the property which was sold by defendant No. 2 to the plaintiff and in absence of the proper identification of the property, issues with respect to the property pertaining to which the suit has been filed cannot be adjudicated. The very identification of the suit property is under scanner and plaintiff has miserably failed to prove that the property sold to him by defendant No. 2 was actually the property with respect to which the documents are placed on record and has further failed to prove that the property sold by defendant No. 2 to plaintiff was an L shaped plot.
33. It is further noteworthy to mention that it is not only with respect to the documents relied upon by the plaintiff showing his purchase of property, but even with respect to the chain of documents placed on record with respect to the suit property i.e. GPA, Affidavit and Letter of possession by virtue of which the said property was sold by defendant No. 3 to defendant no. 2, it is not clear that the suit property is an L shaped property and moreover when the subsequent documents were executed by defendant No. 2 in favour of the plaintiff, in those documents also the factum of the suit property being L shaped is not specified or mentioned. Thus, the main bone of contention which was to be addressed and the onus to adduce evidence on that aspect was upon the plaintiff, that the property with respect to which the present relief is sought is actually the property for which the sale purchase transactions took place as the identity of the property as stated in the present suit is not in consonance with the identity of the property as exhibited in the documents placed on record i.e. Ex. PW 1/2 and Ex. PW 1/3 as it is the case of the plaintiff that SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 21/26 the document placed on record (Ex. PW 1/2 and Ex. PW 1/3) pertains to the suit property, but these documents nowhere mentioned that the suit property is an L shaped plot. Further plaintiff has examined witness PW 2, and in his examination in chief has submitted that the plaintiff had purchased 2 plots in Chandan Vihar, whereby one of the said plot so purchased by the plaintiff is measuring 67 sq. yards and is an L shape plot. Though, there is a witness produced by the plaintiff who states that the property purchased by plaintiff was an L shape property but court cannot be unmindful of the codified provisions of law, whereby it is explicitly clear that in light of the documentary evidence, the oral evidence cannot be relied upon unless a case is specifically made out in this regard.
34. As per section 91 of the Indian Evidence Act "when terms of contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to be a form of document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions here in before contained. Thus, by virtue of section 91 of the Indian Evidence Act, it is explicitly clear that no oral evidence can be given with respect to the contents of the documents pertaining to the disposition of the property, unless secondary evidence of the same is permissible and admittedly, it is not prayed by the plaintiff that the circumstances of the present case call for adducing of secondary evidence and as per the documentary evidence placed on record in form of SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 22/26 documents pertaining to the suit property i.e. Ex. PW 1/2 and Ex. PW 1/3, the suit property sold by defendant No. 2 to the plaintiff is not an L shaped plot.
35. Thus, in the light of the observations and findings made as above, issue Nos. 1, 2 and 3 are decided against the plaintiff and in favour of the defendant.
ISSUE No. 4(4). Whether there is no cause of action in favour of plaintiff and against the defendant? OPD.
Onus to prove this issue was upon the defendant.
36. In order to dwell upon this issue, at the outset it is pertinent to discuss the emote of the term "cause of action".
In the case titled as Somi Atamananda vs. Sri Ram Kumar Tapobana 2005 10 SCC 51, the expression "cause of action" has been defined to mean every fact, which, if traversed it would be necessary for plaintiff to prove in order to support his right to the judgment of the court, though it does not comprise every piece of evidence which is necessary to be proved. Everything which if it is not proved, would give the defendant the right to an immediate judgment, must be the part of cause of action. In other words it means a bundle of material facts which is necessary for the plaintiff to prove in order to succeed. The cause of action has no relation to the defence which may be taken up by the defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the ground set forth in the plaint as cause of action, or in other words to the media upon which the plaintiff asks the court to arrive at a conclusion SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 23/26 in his favour.
In Navin Chandra N. Majithia vs State of Maharashtra AIR 2000, SC 2966, the Hon'ble Supreme Court has pointed out :
"In legal parlance the expression "cause of action" is generally understood to mean a situation or state of facts that entitles a party to maintain an action in a court or tribunal, a group of operative facts giving rise to one or more basis for sueing, a factual situation that entitles one person to obtain a remedy in court from another person.
37. Thus, admittedly, in the light of the law discussed as above, it cannot be said that the plaintiff does not have any cause of action qua the defendant as it is an admitted case of defendant No. 2 and 3 that property admeasuring 67 square yards out of khasra No. 14/10, situtated in area of village Kamalpur Majra, Burari, abadi known as Chandan Vihar, West Sant Nagar, A2 Block, Delhi was sold by defendant No. 3 to defendant no. 2 and the same was in turn sold by defendant no. 2 to the plaintiff but the entire issue in the present suit hovers around the identification of the suit property qua which the present suit is filed by the plaintiff. Thus, in light of the categorical admission made by the defendant's with respect to they having sold the suit property to the plaintiff, it cannot be held that the plaintiff does not have any cause of action against the defendants and more over the onus to prove this issue was upon the defendants and the said burden is not discharged as despite opportunity defendants did not lead any DE. Thus, the present issue is decided in favour of the plaintiff and against the defendant.
ISSUE No. 5(5). Whether plaintiff has suppressed vital and material facts and he is SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 24/26 therefore not entitled for relief of injunction? OPD. The onus to prove this issue was upon the defendants.
38. The defendants have miserably failed to prove this issue as no evidence has been lead by the defendants to substantiate and prove this issue. Thus, the issue stands accordingly, disposed off.
Relief.
39. Thus, on the basis of the observations and findings made in the above issues, this court is of the considered opinion that the plaintiff has miserably failed to prove the identification of the suit property in the first place. No evidence has been led by the plaintiff to show that the property sold to him by defendant No. 2 was actually an L shaped plot as the said fact does not stand established by the property documents placed on record by the plaintiff. There is no denials to the fact that a transaction qua a property measuring 67 square yards, out of Khasra No. 14/10, situated in the area of village Kamalpur Majra, Burari, Abadi known as Chandan Vihar, West Sant Nagar, A2 Block, Delhi did take place between defendant No. 2 and plaintiff but the fact that the said transaction pertains to an LShaped plot stands unproved. Further, no evidence is led by the plaintiff to prove that the property in which he is in possession is actually the one which was sold by defendant No. 2 to the plaintiff. Thus, in the absence of any proof qua the actual identification of the property, the present suit of the plaintiff stands dismissed.
It is pertinent to mention that the findings and observations made as above do not tantamount to any declaration to the effect that, the defendants are the owners of the suit property in question or that the defendants are the owners of the property which is in possession of the SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 25/26 plaintiff. However, parties are at liberty to avail proper legal recourse with respect to their respective declaratory rights qua the suit property.
Digitally signed RICHA by RICHA
SHARMA
SHARMA Date: 2018.05.04
15:02:06 +0530
Pronounced in the open court (Richa Sharma)
today on 03.05.2018 Civil Judge 01 (West)/Delhi
SCJ No. 609976/2016 Shiv Shankar Gaur Vs. Krishan Kumar & others Pages 26/26