Delhi District Court
Taurat Ali vs Sh. Baid Nath on 28 April, 2015
IN THE COURT OF SH. VIKRANT VAID
CIVIL JUDGE04 (CENTRAL)
TIS HAZARI COURTS: DELHI
Suit No. 1052/14
Unique ID No. 02401C0632872007
Taurat Ali
S/o. Zunab Shah
R/o B50, Kewal Park,
Azadpur, Delhi110033 .............Plaintiff
Versus
1. Sh. Baid Nath
S/o Sh. Rajinder Singh
2. Dayanand
Both R/o H. No. 1059,
A Block, Jahangirpuri,
Delhi.
3. Shri R. L. Dixit
S/o Sh. Ram Kumar Dixit
R/o A5, Main Road,
Mukandpur,Delhi .............Defendant
Date of Institution : 04.07.2007
Date of judgment : 28.04.2015
J U D G M E N T:
1. It is a suit for permanent injunction filed by the plaintiff against the defendant.
2. Brief facts of the plaintiff's case are that he purchased a plot CS No. 1052/14 Taurat Ali Vs. Baid Nath & Ors. Page 1 of 9 of land measuring 500 sq. yards forming part of Khasra no. 159, Village Mukand Pur Abadi from R. L. Dixit (defendant no. 3) vide a agreement to sell, GPA, affidavit, receipt etc. on 14.07.2006. Thereafter, he sold 150 sq. yards out of the said plot and is now in possession of land measuring 350 sq. yards as shown in site plan (henceforth referred to as 'suit property'). On 10.05.2007, Baid Nath (defendant no. 1) and Daya Nand (defendant no. 2) visited suit property and claimed its ownership on false and frivolous documents. They also threatened the plaintiff of forcible dispossession. Again on 04.06.2007, defendant no. 1 and 2 entered the suit property with threefour persons and started damaging the boundary wall. However, plaintiff resisted their attempt and they were unsuccessful to obtain possession of the suit property. In this factual background, the present suit has been instituted by the plaintiff praying for a decree of permanent injunction to restrain the defendant no. 1 and 2 from interfering in the peaceful use and occupation of suit property and illegally dispossessing the plaintiff out of it.
3. In their written statements, defendant no. 1 and 2 denied the averment made in the plaint. They averred that plaintiff is neither owner nor in a possession of the suit property. It was also averred that Shanti Devi, mother of the defendant no. 1, was the owner and in possession of the suit property. Further, the suit property falls under Khasra No. 117 and not in Khasra no. 159. They also denied CS No. 1052/14 Taurat Ali Vs. Baid Nath & Ors. Page 2 of 9 the incidents dated 10.05.2007 and 04.06.2007. In a nutshell, defendant no. 1 and 2 denied the entire plaintiff's case.
4. Defendant no. 3 is a proforma defendant and no relief has been claimed against him.
5. After completion of pleadings, the following issues were framed by the Ld. Predecessor of this court:
1. Whether the plaintiff is in possession of the suit property?
OPP.
2. Whether plaintiff is entitled to the permanent injunction as prayed? OPP.
3. Relief.
6. In plaintiff's evidence, five witnesses were examined by plaintiff. Plaintiff himself was examined as 'PW1'. He reiterated the averments made in the plaint and proved the following documents:
(i) Affidavit of plaintiff as Ex. PW1/A.
(ii) Original site plan as Ex.PW1/1.
(iii) Agreement to sell as Ex. PW1/2.
(iv) Affidavit as Ex. PW1/3.
(v) Receipt as Ex. PW1/4.
(vi) Certified copy of the Khasra girdawari pertaining to the said land i.e. Bearing Khasra no. 159 min. as Ex. PW 1/5.
(vii) Conveyance documents in favour of the plaintiff executed by R.K. Dixit as Ex. PW1/6 (colly.).
CS No. 1052/14 Taurat Ali Vs. Baid Nath & Ors. Page 3 of 97. Sh. Ram Dulari Yadav and Jagdish Gupta were examined as 'PW2' and 'PW 3' respectively. They deposed in support of plaintiff's case.
8. Sh. Rakesh Dixit was examined as 'PW 4'. He deposed that he had sold the suit property to the plaintiff vide agreement to sell, GPA, affidavit, etc.
9. Sh. Yogesh Kumar, Patwari from the Office of SDM, Civil Lines, was examined as 'PW 5'. He produced the Jamabandi record and proved the Khasra Girdawari pertaining to suit property for the period 13.10.2008 to 16.02.2013 as Ex. PW 5/1.
10. In defendant's evidence, two witness were examined.
Defendant no. 1 was examined as DW1. He deposed on the lines of written statement and proved the copies of GPA, agreement to sell, affidavit, receipt all dated 15th April 1994 executed by Attar Singh in his favour as DW1/1 (colly.).
11. Defendant no. 2 was examined as DW 2. He also deposed on the lines of written statement and proved the copies of GPA, agreement to sell, affidavit, receipt all dated 15th April 1994 executed by Attar Singh in his favour as DW2/1 (colly.). Further, copy of will, GPA, agreemnt to sell, affidavit, receipt all dated 26.07.2005 executed by him in favour of Shanti Devi (mother of defendant no.1) were proved by him as Ex. DW 2/2 (colly.).
CS No. 1052/14 Taurat Ali Vs. Baid Nath & Ors. Page 4 of 912. I have heard the arguments advanced by rival counsels and perused the record.
13. Section 101 of the Evidence Act reads as:
101. Burden of proof --Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
In Addagada Raghavamma and Anr vs Addagada Chenchamma and Anr 1964 SCR (2) 933, the Hon'ble Apex Court held:
"There is an essential distinction between burden of Proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts."
In Ranchhodbhai Somabhai & Anr. vs. Babubhai Bhailalbhai & Ors. AIR 1992 Guj 308, relying upon the Addagada Raghavamma and Anr vs Addagada Chenchamma (Supra), it was observed (Para 6):
"Burden of proof has to distinct meanings, namely,
(i) the burden proof as the matter of law and pleadings, and (ii) the burden of proof as a matter of adducing evidence. Section 101 of Evidence Act deal with the former and Section 102 of Evidence Act CS No. 1052/14 Taurat Ali Vs. Baid Nath & Ors. Page 5 of 9 deals with the latter. The first remains constant but the second shift"
Thus burden of proving its case rests upon the plaintiff which remains constant and does not shift. It goes without saying that the burden of proving these two issues falls upon the plaintiff.
14. My issue wise findings are given below.
Issue no.1 Whether the plaintiff is in possession of the suit property?
15. Plaintiff has averred that the suit property falls Khasra no.159, Village Mukandpur abadi, Delhi. Disputing the same, defendants claim that suit property falls under Khasra no.117, Village Mukandpur abadi, Delhi. Hence the plaintiff is burdened to establish that the suit property falls under Khasra no. 159 and not
117. Plaintiff has produced GPA, receipt, affidavit, will, agreement to sell and other documents which speak that the suit property falls under Khasra no. 159 in the village Mukandpur. However, these documents do not prove by themselves that the suit property actually falls under Khasra No. 159. There is no other document on record to establish that suit property falls under Khasra no. 159. In these circumstances, it was incumbent upon plaintiff to get the suit property demarcated through the revenue CS No. 1052/14 Taurat Ali Vs. Baid Nath & Ors. Page 6 of 9 authorities to enable the Court to ascertain the identity of suit property. But plaintiff failed to discharge its duty. Be that as it may. In absence of any demarcation report, it remains inconclusive whether the suit property falls under Khasra no. 159 or not. Plaintiff has to suffer the consequences of this fault. When the suit property is itself unidentifiable, the question of its possession by plaintiff becomes indeterminable. Hence this issue is decided against the plaintiff.
Issue no.2 Whether plaintiff is entitled to the permanent injunction as prayed? OPP.
16. As observed while dealing with issue no.1, plaintiff has not been able to establish that the suit property falls under Khasra no.159 of village Mukandpur abadi, Delhi. When the identity of the suit property has not been established, no decree for permanent injunction can be granted for it will be virtually impossible to execute such a decree. In this situation, the discretionary relief of injunction has to be refused as the decree, if passed, shall be inexecutable.
17. Further, it has emanated from plaint as well as testimony of PW1 that defendants have disputed the title of the plaintiff qua the suit property. In fact, not only have they challenged the plaintiff's title but have even set up a rival claim of ownership qua the suit CS No. 1052/14 Taurat Ali Vs. Baid Nath & Ors. Page 7 of 9 property.
Section 41(h) of Specific Relief Act, 1963 bars grant of injunction when an equally efficacious relief is available to the plaintiff. Under these circumstances, a suit for declaration with consequential relief of injunction would have been an equally efficacious remedy for the plaintiff. Hence the relief of injunction simpliciter cannot be granted in view of the provisions of Section 41(h) of the Specific Relief Act, 1963 .
The Hon'ble Apex Court in the celebrated judgment titled Anathula Sudhakar Vs. P. Buchi Reddy (Dead) by LRs and Ors. AIR 2008 SC 2033 has laid down that when plaintiff's title is disputed and defendant sets up a parallel claim with threat of dispossession, a simpliciter suit for injunction is not maintainable. In such a situation, plaintiff must institute a suit for declaration with consequential relief of injunction. Relevant extracts of the said judgment read as:
"Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction."CS No. 1052/14 Taurat Ali Vs. Baid Nath & Ors. Page 8 of 9
In light of the discussions above, I find that the present suit for sipliciter permanent injunction is not maintainable. Accordingly, this issue is decided against the plaintiff.
Relief
18. In light of findings given in the issues, suit of the plaintiff is hereby dismissed.
19. Respective
20. cost of litigation to be borne by the parties.
21. Decree sheet be prepared according.
22. File be consigned to the record room after due compliance.
Announced in the open court (Vikrant Vaid) on 28th April, 2015 Civil Judge04 (Central) Tis Hazari Courts, Delhi CS No. 1052/14 Taurat Ali Vs. Baid Nath & Ors. Page 9 of 9