Delhi District Court
Raj Rani Gupta And Ors vs Subodh Kumar And Ors on 15 December, 2023
IN THE COURT OF ADDITIONAL DISTRICT JUDGE-02:
NORTH ROHINI COURTS COMPLEX: DELHI
CS DJ 57815/16
IN THE MATTER OF:-
1. Smt. Raj Rani Gupta,
Widow of Late Sh. Ram Niwas Gupta
2. Sh. Surender Gutpa
S/o Late Sh. Ram Niwas Gupta
3. Sh. Nitin Gupta
S/o Late Sh. Ram Nivas Gupta
All R/o 49, Sanjay Nagar, Near Adarsh Nagar, Delhi-110033.
4. Smt. Sangeeta
Married Daughter of Late Sh. Ram Niwas Gupta
W/o Sh. Rajesh Goel
R/o 7944/2, New Market, Karol Bagh, New Delhi-110005
5. Smt. Santosh Aggarwal,
Married daughter of Late Sh. Ram Niwas Gupta
W/o Sh. Ashok Aggarwal,
R/o B-112, Prashant Vihar, Delhi-110085
6. Smt. Suman Goel,
Married daughter of Late Sh. Ram Niwas Gupta
W/o Sh. Arun Goel
R/o 1571/112, Anaj Mandi Chowk, Ganeshpura,
Tri Nagar, Delhi-110035.
.............Plaintiffs
Versus
CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 1 of 27
1. Sh. Subodh Kumar,
S/o Sh. Bachhan Singh,
R/o C-601, Lake View Apartment,
Pachim Vihar, New Delhi-110063.
2. Sh. Yadav Ashok Lala,
S/o Not known,
R/o 39/14, Main Road,
Samaipur, Delhi.
3. Smt. Gayatri Singh,
W/o Sh. Umed Singh
R/o A-231, Nehru Vihar, Timarpur,
Delhi-110054.
(Impleaded vide order dated 05.08.2019)
....Defendants
Date of institution : 02.05.2016
Date on which judgment was reserved : 11.12.2023
Date of pronouncement of the judgment : 15.12.2023
JUDGEMENT
By way of the present suit the plaintiffs are seeking three reliefs qua suit property. One for declaration, second for possession and third for permanent injunction qua the suit property which is 980 sq. yards land falling in Khasra no. 9/9, situated in Revenue Estate of Village Libaspur, Delhi abadi known as Sarup Nagar, Delhi (hereinafter referred to as suit property).
1. PLAINTIFFS' CASE CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 2 of 27 1.1 The pleaded case of plaintiffs' is that late Sh. Ram Nivas Gupta was the original owner of the suit property. He is survived by his widow, two sons and three daughters who are the plaintiffs before this court. It is the case of the plaintiffs' that late Sh. Ram Nivas Gupta had purchased a plot of land measuring 480 sq. Yds. out of Khasra no. 9/9 consisting with one room and boundary wall situated in the area of Village Libaspur known as Sarup Nagar, Delhi, bounded as under:-
East:others property West: Others property North: Road. South: Others Property 1.2 The seller of this 480 sq. yards is Smt. Gayatri Devi W/o Sh.
Balvir Singh. who executed GPA, Special Power of Attorney, affidavit, receipt and deed of agreement and also handed over possession of property to late Sh. Ram Nivas Gupta on 09.09.1996. It is further the case of the plaintiffs that Sh. Ram Nivas Gupta also purchased land measuring 500 sq. yards out of Khasra no. 9/9 situated in area of village Libaspur, Delhi abadi known as Sarup Nagar bounded as under:-
East: Plot of others. West: Property of Sh. Ramesh Kumar North: Kushak Road. South: property of others Same (500 sq. yards) was purchased from Smt. Preet Kaur and Akshat Marwah by general power of attorney, special power of attorney, agreement to sell, receipt and affidavit on 09.08.1996. It is the case of the plaintiffs' that Sh. Ram Nivas Gupta raised a boundary wall after purchasing the said plot. Somebody demolished the boundary wall by bringing two trucks. Police report was lodged by Sh. Ram Nivas Gupta on 08.11.1997. Sh. Ram Nivas Gupta died on 02.05.2023. It is the case CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 3 of 27 of the plaintiffs' that on 13.12.2005 plaintiff no. 2 went to the suit property and found that defendants raising construction. Objection was raised. Defendant no. 1 handed over photocopy of judgment passed by Smt. Neena Bansal Krishna, the then Additional Senior Civil Judge dated 31.01.2002. Plaintiff no. 2 received the said copy. He came to know that defendant no.1 namely Subodh Kumar had filed appeal against one Sh. Atma Ram and Sh. Rakesh Sood fraudulently because it was in knowledge of defendant no.1 that property in question had been purchased by the father of plaintiff no. 2 in 1996 and he was in possession. After the death of father of the plaintiff no. 2 the plaintiffs are in physical and lawful possession of the said property. Sh. Ram Nivas Gupta was never impleaded in the suit or in the appeal. Suit was dismissed by Sh. R.K. Singh, the then Civil Judge, Delhi. It was claimed that the suit against Sh. Atma Ram and Sh. Rakesh Sood that defendant no.1 had purchased one bigha out of land Khasra no. 9/8, Village Libaspur, Delhi vide sale deed dated 25.10.1985. Sh. Atma Ram and Sh. Rakesh Sood stopped appearing in the Court of Sh. Rajesh Kumar Singh, Ld. Civil Judge. Defendant no. 1 failed to prove record of local commissioner Kanungo and did not file Khasra girdawari. No evidence regarding identity of property was filed. 1.3 Regular civil appeal no. 60/2001 was filed by defendant no. 1 against Sh. Atma Ram and Sh. Rakesh Sood. An application under order 41 rule 27 CPC to prove photographs, report of Kanungo, Khasra Girdawari was also filed. This application was dismissed by ld.
appellate court on the ground that same is filed to fill lacuna. Ld. first CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 4 of 27 Appellate court allowed the appeal and restrained Sh. Atma Ram and Sh. Rakesh Sood from dispossessing defendant no.1 forcibly or from interfering with possession of defendant no. 1. 1.4 It is the case of the plaintiffs that property claimed by defendant no.1 is property of late Sh. Ram Nivas Gupta inherited by the present plaintiffs and is part of Khasra no. 9/9 and not Khasra no. 9/8. 1.5 It is the case of the plaintiffs that first appellate court relied upon the report of Kanungo dated 10.09.1992 without summoning revenue record or halka patwari to see if the property falls in Khasra no. 9/9 and not Khasra no. 9/8. The appeal was filed to deprive Ram Nivas Gupta from claiming his lawful right.
1.6 The plaintiff prays that judgment dated 31.01.2002 passed by Smt. Neena Bansal Krishna be declared null and void as the same has been obtained fraudulently and in conspiracy with Sh. Atma Ram and Sh. Rakesh Sood knowing fully well that the property belongs to Sh. Ram Nivas Gupta.
1.7 Further decree for possession is prayed for 980 sq. yds in suit property.
1.8 Further, prayer has been made that defendants be restrained by way of permanent injunction from selling constructing or parting with the possession of suit property or creating third party interest. 1.9 Further a decree of mesne profits in favour of the plaintiff @ 10,000/- per month till possession of property from the date of hearing of suit is prayed for.
2. CASE OF THE DEFENDANT NO. 1 AND 2CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 5 of 27 2.1 Various preliminary objections were taken by the defendants. It was stated that present suit is barred under section 185 of Delhi Land Reforms Act. No sale deed has been filed by the plaintiff to show his ownership over Khasra no. 9/9, Village Libaspur, Delhi. There are no documents of the ownership in favour of the plaintiff. Gram Sabha of Village Libaspur has not been impleaded despite being a necessary party. There is misjoinder of defendant no. 2. The suit is without any cause of action. It is stated that in compliance of orders of the court, the revenue department carried on demarcation and submitted a report dated 10.09.1992 confirming that land of the present defendant no. 1 (plaintiff in suit no. 290/91) falls in Khasra 9/8.
2.3 It is further averred that judgment dated 31.01.2002 in RCA no. 60/2001 has become final and finding. No appeal has been filed against the said judgment. It is further averred that the disputed property is part of Khasra no. 9/8 and not part of khasra no. 9/9, Village Libaspur, Delhi. 2.4 It is further averred that defendant no.1 purchased one bigha land from Sh. Raj Kumar vide sale deed dated 25.10.1985. Defendant no. 3 subsequently sold 528 Sq. Yards to Smt. Gayatri Devi on 03.03.2006. Now Defendant no.3 is left with possession of 480 sq. yds of land in Khasra no.9/8.
2.5 It is further the case of defendant no.1 that the challenge has been made to judgment dated 31.01.2002 whereas present suit was instituted on 19.12.2005. All contrary averments of the plaint were denied . It is the case of the defendants that plaintiffs are not having any property in CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 6 of 27 Khasra no. 9/8 and is wrongly trying to grab his property which lies in Khasra no. 9/8.
3. REPLICATION 3.1 Replication was filed by the plaintiffs to the written statement filed by the defendant no.1 and 2. All the facts of the plaint were reiterated and submissions in WS were denied. It was stated that the purchase by the predecessor of plaintiffs is valid as general power of attorney is duly registered with Sub-Registrar Delhi on 09.09.1996. It is clarified that no Bhoomidari rights are being claimed. It is stated that Gram Sabha is not necessary party as no proceedings have been initiated by it against the plaintiff or the defendants. It is stated that the actual owner was not impleaded in case filed by defendant no. 1 in conspiracy with Sh. Atma Ram and Rakesh Sood. It is stated that judgment in RCA no.60/2001 is nullity and a result of fraud. It is reiterated that suit land forms part of Khasra no. 9/9 and not 9/8. Fresh appointment of Halka Patwari is prayed.
3.2 It is stated that suit is not time barred as plaintiffs came to know about illegal possession only on 13.12.2005. It is stated that a report of kanungo is manipulated. The prayers made in the suit are re-iterated.
4. CASE OF THE DEFENDANTS NO. 3 (who was impleaded vide order dated 05.08.2019)
i). The pleaded case of defendant no. 3 is that she is bonafide purchaser of land measuring 428 sq. yds out of one bigha land in khasra no. 9/8. She claims to have purchased the same vide register general CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 7 of 27 power of attorney, registered will , agreement to sell, possession letter and receipt dated 03.03.2006 from Sh. Subodh Kumar. She claims to be in possession since the date of purchase. She has taken an objection that the present suit is barred under section 185 of Delhi Land Reforms Act. No ownership documents have been filed by the plaintiffs. Gram Sabha has not been impleaded. Plaintiffs are falsely describing suit property is part of Khasra no. 9/9 and trying to encroach upon the property of the defendant in Khasra no. 9/8. It is stated that Atma Ram and Rakesh Sood tried to encroach upon the suit property. Defendant no. 1 filed a suit for permanent injunction bearing no. 290/91. Vide order dated 29.06.92 court appointed kanungo to demarcate the land in question, who in his report has submitted that the land of defendant no. 1 (plaintiff in suit no. 290/91) falls in Khasra no. 9/8. It is stated that judgment dated 31.01.2002 in RCA no.60/2001 has become final.
ii). It is further stated that the suit of the plaintiff is time barred as judgment dated 31.01.2002 is challenged on 19.12.2005. It is prayed that suit of the plaintiffs be dismissed.
5. REPLICATION TO WRITTEN STATEMENT OF DEFENDANT NO. 3 Replication was filed by the plaintiffs to the written statement of defendant no.3. All the facts of the plaint were reiterated and submissions in written statement were denied. It was stated that the purchase by the defendant no. 3 is hit by section 52 of transfer of property Act. The contents of the plaint were reiterated. CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 8 of 27
6. ISSUES Vide order dated 22.08.2022, following issues were framed by the Ld. predecessor of this court :
1. Whether the defendant no.1 obtained fraudulent decree dated 31.01.2002 from the court of ASCJ? OPP.
2. Whether the plaintiff is entitled to the decree of declaration as prayed for?OPP
3. Whether plaintiff is entitled to decree of possession as prayed for? OPP.
4. Whether suit is bad for misjoinder of defendant no. 2? OPD1.
5. Whether defendant no.3 is bonafide purchaser of suit property? OPD3.
6. Relief.
After that plaintiff led evidence and examined witnesses.
7. PLAINTIFF EVIDENCE.
SR Name of witness Remarks No. of wit nes s 1. PW1 Surender Gupta
S/o Sh. Ram Nivas Affidavit was tendered as Ex.PW-1/A Gupta relying upon the following documents i.e. the site plan is Ex. PWI/1; the documents CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 9 of 27 i.e. the copy of property documents executed by Smt. Gayatri mentioned in the affidavit as Ex PW1/2 is already exhibited a Ex.PW2/1 (three pages) and Ex.PW2/2 (two pages) (total ten pages including five pages of PW1/1); The documents i.e. the copy of property document executed by Smt. Gayatri Devi mentioned in the affidavit as Ex.PW1/3 is no de-exhibited and marked as Mark B (total seven pages, colly); the document i.e. the copy of death certificate of late Sh. Ram Niwas Gupta mentioned in affidavit as Ex.PW1/4 is now de-exhibited and marked as Mark C and copy of the complaint is marked as Mark A; the certified copy of Judgment Ex.PW1/5 (total eight pages, colly); the Aksizra, Form P-4 and Khatoni exhibited as Ex.PW1/6 (colly, three pages) are already exhibited as PW3/2 Ex.PW3/3; the document i.e. copy of Judgment of Smt. Neena Bansal Krisna the then Addl. Senior Civil Judge, Delhi dated 31.01.2005 mentioned in affidavit as Ex.PW1/7 is now CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 10 of 27 de-exhibited and marked as Mark D (total pages, colly)
2. PW 2 Akshay Dabas , record keeper of Sub PW 2 brought the summoned record i.e. Registrar office general power of attorney executed by Pitampura.
Smt. Gayatri Devi in favour of Sh. Ram Nivas measuring 480 sq. yards, Khasra no.9/9, Village Libaspur, Delhi, true copy of which is Ex. PW 2/1(total three pages,colly). The document i.e. SPA executed by Smat. Gayatri Devi in favour of Sh. Ram Nivas measuring 480 sq. yds, Khasra no. 9/9 Village Libaspur, Delhi, true copy of which is Ex. PW 2/2(total two pages,colly)
3. PW3 Subodh Kumar, Patwari He brought the Aksizra and copy of Form P-4. The Ex. PW 3/1 is the true copy of Aksizra . The Khasra Girdawri of the year 2002-2003 is Ex. 3/2 and Khatoni of the year 1990-1991 is Ex PW 3/3.
4. PW4 Sh. Atma Ram Gupta S/o Late Sh. PW 4 deposed that he had sold the land B.L. Gupta measuring 500 Sq yards in Khasra no 9/9 in Village Libaspur, Abadi known as CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 11 of 27 Swaroop Nagar by way of GPA, etc. to Sh.
Ramniwas but he did not remember in whose name the said land was sold. The copy of the GPA. etc is marked as Mark 4(colly X7 pages) which bears his signatures at point A, point B, point C and point D. The agreement to sell bears his signatures at point E, point F and receipt bears his signature at point G. Will bears his signatures at point H. Another General Power of Attorney executed by him in respect of 500 Sq yards land in Khasra no.
9/9 in village Libaspur, Abadi known as Swaroop Nagar is marked as Mark PW4/A(colly X7 pages) which bears his signatures at point A, point B. point C, point D, point E, point F, point G and point H. The copy of the judgment is already exhibited Ex. PW1/5
5. PW 5 Sh. Kailash Singh, Halka Patwari PW5 deposed about the Demarcation report dated 28.02.1990 of Khasra No.9/9 and 9/8 of Village Libaspur, Delhi which is in the centralized record room at Tis CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 12 of 27 Hazari as all the records prior to the year 1997 are available in the Record Room at Tis Hazari Courts, Delhi.
6. PW6 Head Constable Lekh Raj PW 6 deposed that summoned record i.e. complaint addressed to SHO, PS SP Badli dated 08.11.1997 which is marked as mark A had been destroyed as per order dated 22.04.2021.
7. PW 7 Sh Sunil Kumar, Sr. Assistant Central PW 7 brought the Goswara Register which Record Room, Tis was seen and returned which found no Hazari Courts entry regarding the 28.02.1990 of demarcation report.
8. PW 8 Sh. Mahender, Junior Assistant Certified copies of both Wills are Ex. (record keeper) from PW8/1 and Ex. PW 8/2.
the office of Sub-
Registrar, Kashmere Gate, Delhi
9. PW9 Ms. Kanta, reader from the office Summoned record i.e. GPA having of Sub-Registrar registration no. 15814 book no. IV, Vol.
no. 3439, pages 181 dated 14.09.1995.
The copy of which is Ex. PW 9/110. PW 10 Sh. Naveen Gandas, Record keeper He brought the summoned record i.e. sale from the Department CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 13 of 27 of Delhi Archives.
deed having registration 4081, Addl. Book no. 1, Vol. no. 6364 on pages 100 to 104 dated 25.04.1990. The copy of which exhibited as Ex. PW 10/1 (OSR).
Plaintiff evidence was closed by statement of counsel for the plaintiff on 09.10.2023.
8. DEFENDANTS EVIDENCE SR No. Name of witness Remarks of witness
1. DW1 Smt. She tendered her evidence by way of Gayatri Devi affidavit Ex. DW1/A. She proved the documents i.e. documents dated 03.03.2006 Ex. DW1/1(Colly); certified copy of sale deed dated 15.04.1985 Ex.
DW1/2colly; house tax receipts Ex.
DW1/3colly.
Defendant evidence was closed by statement of the counsel on 16.10.2023.
9. ARGUMENTS BY THE LEARNED COUNSEL FOR THE PARTIES AND ISSUE-WISE FINDINGS ARE AS UNDER:-
I had heard rival contentions on 20/11/23 when counsel for plaintiffs appeared through VC and counsel for defendants was present physically, On 04/12/23 written submissions were filed on behalf of CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 14 of 27 plaintiffs and it was stated on behalf of plaintiffs that case be decided on the basis of written submissions filed on behalf of plaintiffs. On 11/12/23 counsel for defendants was heard and case was posted for orders on 15.12.23. Liberty was granted to counsel for the plaintiffs to advance oral submissions till 14/12/23,if any. Court has perused written submissions on behalf of plaintiffs carefully, court has perused material on record and after careful consideration of rival arguments issue wise findings are as under:-
10. ISSUE NO. 1:
"Whether the defendant no.1 obtained fraudulent decree dated 31.01.2002 from the court of ASCJ? OPP."
a). ARGUMENTS BY LD COUNSEL FOR THE PLAINTIFFS:
i). Learned counsel for plaintiffs has argued that father of plaintiffs was not impleaded by the defendants in civil suit in which decree dated 31.01.2002 was passed. Plaintiffs legal rights are infringed and the decree has been obtained at his back.
ii). Ld. counsel for the plaintiffs has argued that the trial court of Sh. Rajesh Kumar Singh Civil Judge, Delhi, had decided suit no. 97 in 2001 and in appeal which was filed, Sh. Ram Nivas Gupta ought to have been impleaded as a party.
iii). Ld. counsel for the plaintiffs has argued that in November 97 police complaint was filed and the defendants were aware of the interest of the plaintiffs. Reliance was placed upon case of Ram Chander Singh Vs. Savitri Devi and second judgment of Madhukar Sdbha CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 15 of 27 Shivarkar Vs. State of Maharashtra & ors. decided by Hon'ble Apex court.
b). ARGUMENTS BY LD. COUNSEL FOR DEFENDANTS:
i). Ld. counsel for the defendants has argued that suit was instituted vide suit no. 97 of 1997/1991. It was marked to the court of Sh. Rajesh Kumar Singh the then Civil Judge, Delhi. Date of institution of suit is 28.05.1991 and as per the pleaded case of the plaintiffs the suit property was purchased by the plaintiffs only on 09.08.1996 and 09.09.1996. It is further argued that right in immovable property was directly and specifically an issue, so lis pendens applies as per section 52 of the Transfer of property Act 1882. Atma Ram and Rakesh Sood have sold the suit property to predecessors in interest of plaintiffs.
ii). It is further argued by the counsel for the defendants that no evidence of collusive decree was lead by the plaintiffs. Sh. Atma Ram was examined as PW4 who also failed to lead any evidence in favour of the plaintiffs.
iii). It is further argued by the counsel for the defendants that the respondents in RCA no. 60/2001 i.e. judgment passed by Ms. Neena Bansal Krishna, the then Additional Senior Civil Judge, Delhi dated 31.01.2002 the respondents therein i.e. Atma Ram and Rakesh Sood had contested the appeal.
iv). It is further argued by the counsel for the defendants that when the appeal was filed before the court of Ms. Neena Bansal Krishna, the defendants were not aware about the right, title and interest of the plaintiffs and even the documents in favour of the plaintiffs are not registered.
v). Ld. counsel for the defendants has argued that cases cited by the plaintiffs i.e. case of Ram Chander Singh Vs. Savitri Devi and second CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 16 of 27 judgment of Madhukar Sdbha Shivarkar Vs. State of Maharashtra & ors.) are distinguishable.
c). FINDINGS ON ISSUE NO 1:
i). Following table depicts the chronology of essential facts:
Date event
25.10.1985 Raj Kumar executed sale deed in favour of
Subodh Kumar defendant no. 1
28.05.1991 Subodh Kumar defendant no. 1 filed suit against
Atma Ram and Rakesh Sood before Court of
Sh. Rajesh Kumar Singh, Civil Judge, Delhi
09.08.96 Sh. Ram Nivas Gupta purchased 500 sq. yards.
Out of Khasra no. 9/9 from Preet Kaur and
Akshat Marwarh
09.09.96 Sh. Ram Nivas Gupta purchased 500 sq. yards.
Out of Khasra no. 9/9 from Gayatri Devi W/o
Balbir Singh
31.07.2001 Suit filed by Subodh Kumar Defendant no. 1
against Atma Ram and Rakesh Sood before
Court of Sh. Rajesh Kumar Singh, Civil Judge, Delhi was dismissed.
31.01.2002 Appeal filed in the court of Ms. Neena Bansal Krishna was allowed.
ii). Onus to prove this issue was upon the plaintiffs. It is plaintiffs' case that a collusive decree was obtained without making Sh. Ram Nivas Gupta(father of plaintiffs) a party. The issue deserves to be decided against plaintiff as suit (filed by Subodh Kumar Defendant no. 1 against Atma Ram and Rakesh Sood) was instituted vide suit no. 97 of 1997/1991. It was marked to the court of Sh. Rajesh Kumar Singh the then Civil Judge, Delhi. Date of institution of suit is 28.05.1991.As per the pleaded case of the plaintiffs' the suit property was purchased by CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 17 of 27 the plaintiffs only on 09.08.1996 and 09.09.1996. Since purchase by plaintiffs was subsequent to institution of suit, no occasion arose for impleading plaintiffs in suit.
iii). Right in immovable property was directly and specifically an issue in the suit aforesaid i.e.suit no. 97 of 1997/1991, so doctrine of lis pendens applies as per section 52 of the Transfer of property Act 1882. Atma Ram and Rakesh Sood have sold the suit property to predecessors in interest of plaintiffs. Plaintiffs would thus be bound by the result of the suit.
iv). Further no evidence or circumstances signaling collusion have been pointed out. Sh. Atma Ram was examined as PW4. He failed to lead any evidence in favour of the plaintiffs qua collusion.
v). Cases cited by the plaintiffs are distinguishable. In case of Ram Chander Singh Vs. Savitri Devi partition suit was fraudulent and collusive by suppressing that Uttam Pandey had died but in the present case no suppression of any material fact has been done. The Second judgment cited i.e. Madhukar Sadbha Shivarkar Vs. State of Maharashtra & ors. is distinguishable as in the facts of that case share holders of the company in collusion with revenue authorities manipulated revenue records and some of the appellants were convicted and the said judgment is clearly distinguishable on facts and does not further case of the plaintiffs.
This issue is accordingly decided against plaintiffs.
11. ISSUE NO. 2:
"Whether the plaintiffs are entitled to the decree of declaration as prayed for?OPP."
Prayer in suit is for declaring decree dated 31.01.2002 as null and void.
Ld. counsel for the parties adopt the arguments of issue no. 1. CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 18 of 27 FINDINGS ON ISSUE NO 2:
Learned counsel for the parties have adopted the arguments of issue no. 1. Hence, the findings on issue no 1 apply to this issue as well.
The issue is accordingly decided against the plaintiffs.
12. ISSUE NO. 3:
"Whether plaintiffs are entitled to decree of possession as prayed for? OPP.."
a). Learned counsel for plaintiffs has argued:
i). Ld. counsel for the plaintiffs has argued that site plan Ex. PW 1/1 has not been challenged by the defendants.
ii). Ld. counsel for the plaintiffs has argued that the Aks Sizra at page no. 47 of the paper book of documents shows that Khasra no. 9/9 is adjacent to Khasra no. 9/8 and the documents in favour of the defendants pertains to Khasra no. 9/8 and the defendants have unlawfully encroached the suit property of the plaintiffs in Khasra no. 9/9.
iii). Ld. counsel for the plaintiffs has argued that the documents on which the plaintiff relies i.e. GPA, receipt, agreement to sell, possession letter are not hit by the judgment of Hon'ble Supreme Court in Suraj Lamp case as judgment is of year 2011 and documents of the plaintiffs are of the year 1996.
b). Arguments of Learned counsel for defendants :
i). Ld. counsel for the defendants had argued that there are no ownership documents in favour of the plaintiffs so the plaintiffs are not entitled to relief of possession. The previous chain of ownership qua Khasra no. 9/9 is not shown. It is further argued that defendant is registered owner vide sale deed dated 15.04.1985 and registered power of attorney dated 03.03.2006 Ex. DW1(colly) CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 19 of 27
ii). Ld. counsel for the defendants has further argued that suit property falls in Khasra no. 9/8 which belongs to the defendants. It is argued that Smt. Rajeshwari Chaudhary was Bhumidar. Sh. Raj Kumar is shown as subsequent bhoomidar. Rajeshwari Chaudhary executed sale deed dated 15.04.85(Ex. DW1/2 (colly at internal page no. 13) in favour of Sh. Raj Kumar. Raj Kumar in turn executed sale deed dated 25.10.85(Ex.
DW1/2 colly at internal page no. 2) in favour of Subodh Kumar.
iii). It is argued that these sale deeds are pertaining to khasra no. 9/8. Subodh Kumar in turn executed an irrevocable Genreal Power of Attorney registered and stamped in favour of Gayatri Devi W/o Umed Singh which is Ex. DW1/2 (colly). Further, the electricity bills and house tax receipt in favour of Gayatri Devi W/o Umed Singh is Ex. DW1/3 (colly).
iv). It is further argued that in case of vacant land the possession follows title (reliance is placed upon Anathula Sudhakar Vs. Buchi Reddy AIR 2008 SC2023). Defendants have title by way of registered sale deed. House tax receipt and electricity bill shows possession of the defendants whereas the plaintiff is relying upon unregistered, unstamped notarized agreement to sell, affidavit and receipt. The same are not admissible in law and confer no title upon the plaintiffs.
v). It is further argued that it was upon the plaintiffs to prove demarcation report which was not done.
vi). It is further argued that PW 3 Subodh Kumar Patwari was unable to tell which portion falls in khasra no. 9/9 and Khasra no. 9/8. It was stated by the witness that the same can be revealed only after demarcation. It is argued that it was upon the plaintiffs to get the land demarcated and prove the report as per law which was not done. Vii). It is further argued that PW 5 Sh. Kailash Singh, Halka Patwari from SDM Alipur office failed to prove alleged demarcation report dated 28.02.1990 of Khasra no. 9/9 and 9/8 of Village Libaspur, Delhi. CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 20 of 27 Viii). Learned counsel for defendants has argued that site plan is not a title document and thus the plaintiffs merely on basis of Ex. PW 1/1 cannot prove his title or that his land is situated in Khasra no. 9/9.
ix). Learned counsel for defendants has argued that sale deed dated 25.04.1990 Ex. PW10 in favour of Atma Ram has been executed by Sh.Vipin Kumar S/o Sh. Bhagwan Dass. It is not shown how Sh. Vipin Kumar had title over the suit property and in any case plaintiff is not claiming title through Sh. Atma Ram but through Gayatri Devi W/o Balbir Singh, Preet Kaur and Akshat Marwah.
x). Learned counsel for defendants has argued that Gayatri Devi W/o Balbir Singh, Preet Kaur and Akshat Marwah have not proved their previous chain of documents and plaintiff cannot derive title by unstamped GPA.
xi). It is further argued by ld counsel for defendants that even pleadings qua date of dispossession and in the manner in which defendants came in possession is totally absent.
12.1 FINDINGS ON ISSUE NO 3:
i). Onus to prove this issue as upon the plaintiffs. Plaintiffs in order to succeed ought to show title or previous possession as a basis to claim possession.
There are no ownership/title documents in favour of the plaintiffs. The previous chain of ownership qua Khasra no 9/9 is not proved on record by the plaintiffs.
ii). In case of vacant land the possession follows title (reliance is placed upon case titled as Anathula Sudhakar Vs. Buchi Reddy reported in AIR 2008 SC2033) Plaintiffs have not proved any title documents in their favour. The plaintiffs are relying upon unregistered, unstamped notarized agreement to sell, affidavit and receipt. The same are not CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 21 of 27 admissible in law as title documents. They confer no title upon the plaintiffs. Thus plaintiffs are not entitled to relief of possession.
iii). Further no demarcation report has been proved by plaintiffs to show suit property lies in Khasra no 9/9. Plaintiffs suit cannot be decreed on basis of mere conjecture.
vi). In recent case titled as SHAKEEL AHMED versus SYED AKHLAQ HUSSAIN decided by Hon'ble Apex Court on November 01, 2023 reported in 2023 SCC OnLine SC 1526 it has been held that Law is well settled that no right, title or interest in immovable property can be conferred without a registered document. Argument on behalf of plaintiffs that Suraj Lamp case is prospective is liable to be rejected as Hon'ble Supreme Court in Shakeel Ahmed Case Supra has held:
"The argument advanced on behalf of the respondent that the judgment in Suraj Lamps & Industries (supra) would be prospective is also misplaced. The requirement of compulsory registration and effect on non-registration emanates from the statutes, in particular the Registration Act and the Transfer of Property Act. The ratio in Suraj Lamps & Industries (supra) only approves the provisions in the two enactments. Earlier judgments of this Court have taken the same view. "
v). Further PW 3 Subodh Kumar Patwari was unable to tell which portion falls in khasra no. 9/9 and Khasra no. 9/8. It was stated by the witness that the same can be revealed only after demarcation. It was upon the plaintiffs to get the land demarcated and prove the report as per law which was not done.
vi). Further PW 5 Sh. Kailash Singh, Halka Patwari from SDM Alipur office failed to prove alleged demarcation report dated 28.02.1990 of Khasra no. 9/9 and 9/8 of Village Libaspur, Delhi.
CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 22 of 27 Vii). Further site plan is not a title document. The plaintiff merely on basis of Ex. PW 1/1 cannot prove his title or that his land of plaintiff is situated in Khasra no. 9/9.
viii). Sale deed dated 25.04.1990 Ex. PW10 in favour of Atma Ram has been executed by Sh.Vipin Kumar S/o Sh. Bhagwan Dass. It is not shown how Sh. Vipin Kumar had title over the suit property. In any case plaintiffs are claiming title through Gayatri Devi W/o Balbir Singh, Preet Kaur and Akshat Marwah by way of GPA, Agreement to sell. In absence of registered sale deed in favour of plaintiffs no relief of possession can be granted. Further PW4 Atma Ram has admitted in his cross examination as under:
"Whatever the document is in my name, all are notarized documents and not a single document is registered in my name"
ix). Gayatri Devi W/o Balbir Singh, Preet Kaur and Akshat Marwah have not proved their previous chain of documents. Thus plaintiffs cannot derive title merely relying on unstamped GPA. GPA merely gives authority to get executed another document. No sale deed has been shown to have been got executed by plaintiffs on basis of GPA. On basis of agreement to sell, specific performance could be filed. Same has not been shown to have been filed by plaintiffs.
x) PW-8 got Certified copies of both Wills exhibited as Ex. PW8/1 and Ex. PW 8/2. Ex. PW8/1 is will by Akshat Marwah in favour of Sh Ram Niwas Gupta.and Ex. PW 8/2 is will by Preet Kaur in favour of Sh Ram Niwas Gupta. It has not been shown that testators have died. Mahesh Kumar attesting witness to will has not been examined by plaintiffs. In considered opinion of the court plaintiffs cannot derive title on basis of these wills.
xi). Admittedly plaintiffs are not in possession. it was incumbent upon plaintiffs to prove identification of land by demarcation. The same was CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 23 of 27 not done. In his cross examination PW1 Sh. Surender Gupta admitted as under:
".................. It is correct that neither my father nor me have ever approached any Revenue Authority regarding demarcation of the suit property to find out whether the property falls in Khasra No.9/9 or 9/8.............."
xi). Aks Sizra merely shows that Khasra no. 9/9 is adjacent to Khasra no. 9/8. It has not been proved that the defendant have unlawfully encroached the suit property of the plaintiff in Khasra no. 9/9.
xii). Now examining evidence of defendants. Defendants claim themselves to be registered owner vide sale deed dated 15.04.1985(Ex.DW1/3 colly). Defendants claim that Smt. Rajeshwari Chaudhary was the original Bhumidar Ex. DW1/3 (colly) internal page no. 22 i.e. Khatoni is relied upon). Sh. Raj Kumar is shown as subsequent bhoomidar therein in the same document i.e.Ex. DW1/3 (colly) internal page no. 22 i.e. Khatoni).
xiii) It is further the case of defendants that Rajeshwari Chaudhary executed sale deed dated 15.04.85(Ex. DW1/2 (colly at internal page no.
13) in favour of Sh. Raj Kumar. Raj Kumar in turn executed sale deed dated 25.10.85(Ex. DW1/2 colly at internal page no. 2) in favour of Subodh Kumar. These sale deeds are pertaining to khasra no. 9/8.
xiv). It is case of defendants that Subodh Kumar in turn executed an irrevocable General Power of Attorney duly registered and stamped in favour of Gayatri Devi W/o Umed Singh which is Ex. DW1/2 (colly). Further, the electricity bills and house tax receipt in favour of Gayatri Devi W/o Umed Singh are Ex. DW1/3 (colly). In considered opinion of the court the documents in favour of defendant have not been proved as per law. As no clerk or concerned official from registration office has been examined by defendants. Only one defendants' witness(DW1) has been examined who exhibited above documents. They were objected to CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 24 of 27 on the mode of proof by plaintiffs' counsel. Be that as it may, plaintiffs have not discharged onus placed upon them. Plaintiffs cannot take benefit of weakness of defendants case. Plaintiffs were required to stand on their own legs.
xv). The issue is decided against the plaintiffs as plaintiffs case cannot be decreed only on basis of conjecture.
13. ISSUE NO. 4:
"Whether suit is bad for misjoinder of defendant no. 2? OPD1."
Learned counsel for defendants has argued defendant no. 2 has been wrongly joined and no allegation in the plaint qua him are made.
i). Learned counsel for plaintiffs has argued that defendant no. 2 is a property broker who helped defendant no. 1 to take over possession of plaintiffs' property and thus he has been rightly impleaded in the present suit. Specific allegations have been levelled against defendant no. 2 in para 15 of the plaint and he is alleged to be in possession of the suit property.
13.1 FINDINGS ON ISSUE NO 4:
i). Defendant no. 2 is alleged to be a property broker who helped defendant no. 1 to take over possession of plaintiffs' property. Thus he has been rightly impleaded in the present suit. Specific allegations have been levelled against defendant no. 2 in para 15 of the plaint and he is alleged to be in possession of the suit property. He is thus a necessary party in considered opinion of the court.
ii). The issue is decided in favour of plaintiff and against the defendants.
14. ISSUE NO. 5:
"Whether defendant no.3 is bonafide purchaser of suit property? OPD3".
a). Arguments by ld counsel for the plaintiffs:
CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 25 of 27
i). Learned counsel for plaintiffs has argued that Gayatri Devi W/o Umed Singh purchased the property during the pendency of the present suit and therefore she cannot be said to be bonafide purchaser.
ii). Ld. counsel for the plaintiffs has argued that the documents in favour of Gayatri Devi have not been proved as per section 67 of Indian Evidence Act. Further no one from the registration office was summoned to prove the documents in favour of Gayatri Devi.
b). Arguments by Learned counsel for defendants:
i). Ld. counsel for the defendants has argued that as per chain of the documents the title and possession of defendant no. 3 is proved. ld.
counsel for the defendants argues that the documents in favour of defendant no. 3 are for consideration and proper stamp duty has been paid as is required for sale deed.
ii). Learned counsel for defendants has argued that even if rule of lis pendens applies then Gayatri will be entitled to property purchased by her if defendants succeed in the present case as the lis pendens purchaser is bound by the result of the litigation.
14.1 FINDINGS ON ISSUE NO 5:
i). In considered opinion of the court no one from the registration office was summoned to prove the documents in favour of Gayatri Devi. Thus documents in favour of Gayatri are not proved as per law.
ii). Further Gayatri Devi W/o Umed Singh herself has stated in her examination in chief affidavit that vide documents dated 3.3.06 (will, agreement to sell, possession letter, affidavit) she purchased the property.
These documents are during the pendency of the present suit(present suit was registered vide order dated 19-01-2006), so she cannot be said to be bonafide purchaser. In humble opinion of this Court Section 52 of transfer of property Act, 1882 is based upon public policy, no question of good faith or bonafide arises.
CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 26 of 27 Further in Civil Appeal No. 380 Of 2022 [ Special Leave Petition [C] No. 6857/2017] Titled As G.T. Girish Versus Y. Subba Raju (D) By Lrs And Another decided on 18-01-22 in para 93 it was held that:
".........In other words, the transferee or the beneficiary of the property, which is disposed of by a party, cannot set up the case that he acted bonafide or in good faith....."
iii). The lis pendens purchaser is bound by the result of the litigation. defendant no. 3 is not a bonafide purchaser of suit property.
This issue is decided against defendant and in favour of plaintiffs.
15. RELIEF
i). On the basis of the issue-wise findings of this Court on issue no. 1 to 3 , the suit of the plaintiffs is hereby dismissed. Parties to bear their own costs.
ii). Decree sheet be drawn accordingly.
Iii). File be consigned to record room only after due completion and necessary action, as per rule. Digitally signed VIKRAM by VIKRAM BALI BALI Date: 2023.12.15 15:42:45 +0530 (Vikram Bali) Addl. District Judge-02, North Announced in the open Court. Rohini Court Complex, Rohini (Order contains 27 pages) Delhi/15.12.2023 CS DJ 57815/16 Raj Rani & ors. Vs. Subodh Kumar and Ors. Page no. 27 of 27