Delhi District Court
Shri Udaibir Singh Chauhan vs . Ms. Guddy Dhillo & Ors. on 2 November, 2022
Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16
IN THE COURT OF MS. SONAM SINGH-II, CIVIL
JUDGE-07, CENTRAL DISTT., TIS HAZARI COURTS,
DELHI
Civil Suit No. : 1198/16
CNR No. : DLCT03-000536-2010
Date of filing: 12.04.2010
Date of reserving the Judgment: 19.09.2022
Date of Decision: 02.11.2022
Shri Udaibir Singh Chauhan
S/o Late Shri Shiv Raj Singh
R/o SK-58, Sindhuara Kalan,
Chowki no. 2, Delhi-110052
...Plaintiff
-versus-
1. Ms. Guddy Dhillo
D/o Major A.S. Dhillo
R/o C-16, 29/31, Provin Road,
Delhi University, Delhi.
2. The SHO
P.S. Burari,
Delhi
...Defendants
SUIT FOR DECLARATION, POSSESSION &
PERMANENT INJUNCTION
Present : None for parties.
JUDGMENT
Page 1 of 33 (Sonam Singh-II)
Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16
1. The present suit has been instituted by plaintiff seeking a decree of Declaration, Possession & Permanent Injunction against defendants:
(a) holding that plaintiff is the rightful & bonafide owner in respect of Plot situated at Khasra No. 5/10 measuring 100 sq. yds. situated in the Revenue Estate of Burari, Delhi-110009, now abadi known as Tomar Colony, Burari, Delhi as shown in the site plan annexed with plaint;
(b) holding that plaintiff is entitled to the possession in respect of the above plot from defendants; and
(c) restraining defendants, their agents, etc. from creating any third party interest in the above plot in any manner.
Averments made in Plaint:
2. It is the case of plaintiff that he is the owner in respect of plot land area measuring 100 sq. yds. bearing Khasra No. 5/10 situated in the area of Village Kamalpur Majra (hereinafter referred as 'the suit property') now known as Tomar Colony, Burari, Delhi and purchased the same on 01.10.1996 from Sh. Narender Kumar s/o Sh. Ragubir Singh through General Power of Attorney, Agreement to Sell, Affidavit, Receipt and Registered Will all dated 01.10.1996 for a consideration amount of Rs. 72,000/- and possession of which was also handed over to Page 2 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 plaintiff on the spot by Sh. Narender Singh. It is averred that Sh. Narender Singh had purchased the said plot from Sh. Abdul Razzak on 25.01.1994 vide General Power of Attorney, Affidavit, Agreement for Sale, Receipt etc. for a consideration of Rs. 25,000/- and said Sh. Abdul Razzak became owner in respect of the said plot by purchasing it from Sh. Bishamber s/o Sh. Khazan and Sh. Vijay Singh s/o Sh. Ram Chander vide Registered Sale Deed of Rs. 750/- on 06.12.1984 and they were the local residents of Village Burari and owners of the said plot and land situated in their own village. It is further averred that plaintiff later on constructed a boundary wall and one room over the said plot with tin shed and started residing therein. It is further averred that plaintiff was working with M/S Birla Textile Ltd. and as per the order of the Hon'ble Supreme Court, the said Mill was closed and alternate of said Mill was allotted at Baddi in Distt. Solan, Himachal Pradesh and plaintiff being its employee shifted to Baddi, H.P. on 31.03.1999. The said house in suit property was lying locked and nobody was there to look after the house but plaintiff used to visit the same as and when he came to Delhi. It is further averred that on 02.05.1999 one of the cousin brothers namely Sh. Narender Singh informed the plaintiff on telephone at about 5:00 p.m. that somebody has removed the tin shed after breaking open the locks of Page 3 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 the house and has also demolished the side wall as well removed the luggage of plaintiff lying therein including cot, one gate, one bed, along with chaddar, gadda and takiya, one stove, three glasses of steel, one karchhi (steel), one bucket of plastic and another of iron six utensils of steel, old clothes etc. After receiving the news, plaintiff visited Delhi on 04.05.1999 and found that nothing was remaining there and the tin shed was removed along with gate after breaking the lock as well the bag and baggage of plaintiff, following which he rushed to the police post Burari, Delhi and informed the In-charge who informed plaintiff that one madam is also claiming her right over the said plot but refused to lodge any report of theft and asked him to get declared his right from the Civil Court. Plaintiff, later on came to know about the particulars of the said madam who was defendant no.
1.and being misled by the In-charge plaintiff sent a complaint on 04.05.1999 to the Commissioner of Police and on 06.05.1999 to the In-charge of Police Post Burari, D.C.P. Civil Lines, A.C.P. Civil Lines, Lt. Governor of Delhi. The ACP concerned summoned the plaintiff on 27.05.1999 when plaintiff along with Sh. Khazan Singh and Sh. Narender Singh reached his office and was asked to meet the SHO concerned. Next day, plaintiff along with Sh. Khazan Singh met the SHO concerned who referred Page 4 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 them to the In-charge of Police Post concerned and defendant was also summoned by him. The indentity of the plot was disputed by defendant no. 1 as her plot falls in Khasra No. 5/9 whereas the suit plot falls in Khasra No. 5/10, however, avoiding the main fact, one FIR was lodged by Timarpur Police Station and later on plaintiff was arrested. The said FIR bearing no. 231/99 dt. 28.05.1999 was lodged under Sections 420/447/120-B/34 of IPC against plaintiff and Sh. Narender Singh from whom plaintiff had purchased the said plot and in which plaintiff was subsequently released on bail after about 45 days. It is thus averred that plaintiff is a bonafide purchaser in respect of the suit property/suit plot and has got the complete chain of documents of transfer, therefore, the question of any doubt does not arise at all. It is averred that the documents of defendant no. 1 clearly shows that she has purchased the plot in Khasra No. 5/9 whereas plaintiff is the owner in respect of the plot falling in Khasra No. 5/10. It is further averred that plaintiff purchased the said plot on 01.10.1996, raised the construction and remained there up to 31.03.1999 and in the meantime nobody ever raised any objection or interfered in his peaceful enjoyment and possession of the same. It thus seems that the said plot was trespassed by the land mafia who subsequently introduced defendant no. 1 Page 5 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 as owner by means of creating doubt in the mind of police officials. It is further averred that the adjoining plot of the suit plot also falls in Khasra No. 5/10 and not in Khasra No. 5/9 and in these circumstances, it is evident that plaintiff is the rightful owner being a bonafide purchaser of the suit plot/suit property and is thus entitled to its possession as the police officials of Burari Police Station have removed plaintiff and defendant no. 1 from the said plot awaiting decision of the Ld. M.M. concerned. It is further averred that defendant no. 1 had previously raised an objection claiming her ownership over the said plot in connivance with the defendant no. 2 and plaintiff apprehends that defendants in collusion with each other may create further confusion with regard to the said plot by creating third party interest. Hence, the present suit.
Version of Defendant No.1:
3. Defendant no.1 in her written statement (hereinafter 'WS') has stated that she is the recorded owner of property being plot of land measuring 100 sq. yds. and falling in Khasra No. 5/9 situated in the area of Village Kamalpur Majra, Burari, Delhi having purchased the same from its erstwhile owner Sh. Mahender Singh vide sale deed registered on 22.02.1985 and the said plot forms part of a big chunk of land under Khasra No. 5/9 that had been sub divided into Page 6 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 smaller plots of 100 sq. yds. each and subsequently assigned different numbers. It is stated that the plot purchased by defendant no.1 has been assigned no. 263 and is bounded on one side by house no. 262 belonging to Sh. Pradeep Kumar and on the other side by house no. 264 belonging to Smt. Ram Bateri and the entire area has been renamed as Tomar Colony. It is further stated that immediately after purchasing the said plot, defendant no.1 constructed a boundary wall on all sides of the said plot and also affixed a gate to secure it from encroachment. On 25.05.19 defendant no.1 was informed about plaintiff trying to encroach the aforesaid plot by sneaking into the same after breaking open the locks on the main gate and immediately, thereafter, defendant no.1 visited the said plot and at the same time informed the local police about the alleged acts of trespass perpetrated by plaintiff herein who had been claiming himself to be the owner of the said plot. On receipt of the complaint, the police, Timarpur registered FIR no. 281/1999 against the plaintiff as well as one Sh. Narender under Sections 420/447/120B/34 of IPC in which they were also arrested. During the enquiry/investigation made by the concerned police, it transpired that the plaintiff had been laying claim over the suit property by forging and fabricating certain documents by allegedly claiming the same as plot no. 5/10 when Page 7 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 admittedly the said plot was being referred to and identified as plot bearing Khasra No. 5/9. During the course of investigation of the aforesaid FIR, statement had been recorded of persons living in the said locality and as per the status report filed by defendant no. 2 herein, one Mr. Bijender Singh had categorically stated that the suit property belongs to defendant no.1 herein, thereby conclusively establishing that the plaintiff herein is a rank outside who had tried to gain possession of the plot by trying to encroach upon the same with malafide intentions of grabbing the said plot under the guise of documents which on the face of it are fabricated & created by the plaintiff just to lay claims over the suit property when evidently he has no right or title over the same. It is further stated that perusal of the plaint as well as documents filed by plaintiff herein would also evidently demonstrate that plaintiff is seeking himself to be declared as owner of property bearing Khasra No. 5/10 and in such endeavor he has mischievously filed the site plan of the property belonging to defendant no.1 and the site plan being relied upon by the plaintiff is farcical in as much as the same pertains to property falling under Khasra No. 5/9. Plaintiff has thus raised the objection that plaintiff has not come to the Court with clean hands & has suppressed material facts and further objected that the suit is also bad for non-
Page 8 of 33 (Sonam Singh-II)Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 joinder of necessary parties namely the Revenue Authorities and other related civic authorities like MCD who can conclusively state as to who is the recorded owner of the plot as mentioned in the site plan. Defendant no. 1 has also stated that she had constructed the boundary wall over the suit land and no construction was ever made by plaintiff. It is further stated that the real issue involved is relating to the location and identity of the plot which in accordance with the site plan attached with plaint doesn't belong to plaintiff and rather it relates to the plot of land owned by defendant no.1 falling under Khasra No. 5/9 and as such plaintiff is not the rightful owner or bonafide purchaser thereof. It is further stated that since defendant no.1 has all throughout remained in possession of the suit land as demarcated in the site plan, there is no question of defendant no.1 having any occasion to raise any sort of objection by claiming ownership over the same as alleged. Apart from this, defendant no.1 has vehemently denied the contents of the plaint.
Replication by Plaintiff:
4. In the Replication filed on record, Plaintiff has mainly denied the contents of WS filed by defendant no.1 as baseless & incorrect and also reaffirmed the contents of corresponding paras of the plaint as true & correct.Page 9 of 33 (Sonam Singh-II)
Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 Settlement of Issues:
5. From the pleadings of parties, following issues were framed v.o.d 05.07.2012:
1. Whether the plaintiff is entitled to decree of declaration, as prayed for? OPP
2. Whether the plaintiff is entitled to decree of possession, as prayed for? OPP
3. Whether the plaintiff is entitled to decree of permanent injunction, as prayed for? OPP
4. Whether the suit property falls in Khasra Nos. 5/9 or 5/10? Onus on both the parties.
5. Relief.
Plaintiff Evidence (PE):
6. On behalf of plaintiff, seven witnesses have been examined as under:
PW-1: Sh. Udaivir Singh Chauhan (Plaintiff) has tendered evidence by way of affidavit which is Ex. PW1/A and has relied upon the following documents:
1. Ex.PW1/1 is site plan.
2. Mark L (colly.) - Copy of letter to Commissioner of Police dated 04.05.1999.
3. Mark M (colly) - Copy of Letter to SHO, dated 06.05.1999.Page 10 of 33 (Sonam Singh-II)
Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16
4. Mark N - copy of India Post Registration Slips.
5. Mark A (colly), Mark B, Mark C (colly) and Mark D - Copy of GPA dated 25.01.1994 executed by Abdul Razzak in favour of Sh. Narender Singh, affidavit, agreement for sale and receipt for Rs.25,000/- dated 25.01.1994 respectively.
6. Mark E (colly), Mark F (colly), Mark G, Mark H, Mark I - Copy of GPA by Narender Singh in favour of Udaivir Singh, agreement for sale, affidavit, receipt and Will, all dated 01.10.1996.
7. Mark K (colly) - Copy of sale deed dated 06.12.1984 executed by Sh. Bishambar and Sh. Vijay Singh in favour of Sh. Abdul Razzak.
8. Mark J - Copy of FIR in PS Timar Pur bearing no.281/99.
9. Ex.PW1/10 and Ex.PW1/11 is registered AD cards.
In his cross-examination on behalf of defendant no.1, PW-1 has stated that he has filed the suit in respect of suit property as it belongs to him but the possession is not with him. It is stated that he has the Power of Attorney in respect of plot and a registered Will. The witness has admitted that there is no sale deed in his favor in respect of suit property or any other plot and the copy of GPA is already Ex.PW7/7, Copy of Agreement to Sale is already Page 11 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 Ex.PW7/8, Copy of Affidavit is Ex.PW7/9, Receipt of consideration is Ex.PW7/10 and copy of Registered WILL is Ex.PW7/11 and that these documents were executed by Narender Singh in his favour. He has further stated that as per documents, plot Khasra no. 5/10 opens towards east and west side. The witness has then vol. stated that he does not know English and that his plot situates at the road leads from eastern side to western side and his plot opens at north side. The witness has admitted that as per documents filed by him in respect of Khasra no. 5/10 there is a plot mentioned in the north and south side and that apart from Will all others documents in his favor are notarized. He has stated that the site plan Ex. PW1/1 was prepared at his instance and the same was filed by him in the court record. The witness has stated that he is not aware that the plot of Guddy Dhillo falls in Khasara no. 5/9 and is lying between Gali no. 5 and 6. He has stated that the affidavit Ex.PW1/A was prepared on his own instructions and that the documents above mentioned are correct. He has further stated that even when he started living in Plot Khasra no.5/10. he has no documentary proof to show that he was in possession or living in the said property, and vol. stated that no such facility like Ration Card, electricity, water connection, ID were available there as proof of his residence. It is further stated that he has no relation with Page 12 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 Sh. Narender as mentioned in para no. 5 of his affidavit. It is further stated that he has filed one complaint against unknown person about the facts committed in his plot prior to the registration of FIR lodged by defendant no.1 and vol. stated that police did not initiate any action on his complaint but demanded a bribe of Rs.10,000/- from him to register the FIR and that his complaint was in respect of plot Khasra no.5/10. He has further stated that he also made complaint to higher authorities and his complaint was referred to ACP who in turn sent him to the Police Station Timarpur and SHO concerned Timarpur directed him to go to the police post Burari (Now police Station) where he was arrested instead of taking any action on his complaint and remained in judicial custody for 45 days. The witness has admitted that after his release from judicial custody, he has not filed any complaint case in court regarding non action of police on his complaint case with reference to plot falling in Khasra no.5/10 and vol. stated that he has filed the present suit in which SHO has been made a party. He has further stated that he was released from judicial custody in the year 1999 and the present suit was filed on 13.04.2010. The witness has admitted that from year 1999 to 2010, he has not filed any criminal complaint case in court of law in respect of non- action on his complaint by police. The witness has Page 13 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 admitted that Sh. Narender Singh who sold the plot Khasra no.5/10 to him was also arrested in the FIR and further admitted that he has not taken any legal action against Sh. Narender Singh who executed the documents in his favour. The witness has further admitted that till date he has not filed any petition before the Hon'ble Court of Delhi for quashing of FIR and dropping of proceedings pending before the Area MM. Apart from this, PW-1 has mainly denied the suggestions put to him on behalf of defendant no.1.
PW-2: Mr. Ram Kishore has tendered evidence by way of affidavit which is Ex. PW 2/A and has not relied upon any document. In his cross-examination on behalf of defendant no.1, PW-2 has stated that he is residing in Tomar Colony, Burari, Delhi and his house bearing no. 117 falls in Khasra no. 5/1,2,3, the entrance whereof is from southern side, the back gali thereof is numbered as gali no. 2, the gali across gali no. 3 towards Southern side is numbered as gali no. 4, there are plots in between gali no. 3 & 4 and the lane across gali no. 4 towards Southern side is gali no. 5. The witness has admitted gali no. 4 is the back lane of houses right across his house towards Southern side. He has stated that the plot of Udaivir is North facing and the back lane of plaintiff's plot is towards Page 14 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 Southern side. The witness has stated that he does not know the name of the person who owns the plot towards the eastern side of plaintiff and vol. stated that they have come recently in the locality and that he does not know the name of the person who owns the plot towards the western side of the plaintiff. He has further stated that the deal of the plot in issue was finalized in his presence and he had performed the Pooja in the room constructed by the plaintiff. He has further stated that he is staying in the locality for 20 years ever since purchase of the plot whereupon he has constructed his house. He has further stated that he cannot say whether Pradeep Kumar owned the adjacent plot towards eastern side of the plot of plaintiff and also cannot say whether Ram Bateri owned the adjacent plot towards western side of the plot of plaintiff. It is further stated that he does not know English language and therefore cannot say what is written in his affidavit Ex. PW2/A (Objected as intended to misguide the witness). The witness has denied to have deposed falsely.
PW 3: Mr. Yogesh Kumar, Patwari, SDM (Civil Lines), Tis Hazari, Delhi in his examination-in-chief has deposed that as per the summoned record i.e. Khatoni (Ex. PW3/1 (OSR)) of the Village Kamalpur Majra, Burari, Delhi for the year 1989-1990, Khasra No. 5/10 is in the name of Page 15 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 Gram Sabha and has no record with regard to the occupants of the plot and that there may be a colony because of gram sabha there in the record. In his cross- examination, PW-3 has stated that the entire colony of Kamalpur Majra is not in the name of Gram Sabha, but majority portion of the colony falls with the Gram Sabha.
PW-4: Mr. Sanjeev Vats, Ahlmad to the Court of Mr. Gagan Deep Singh, LD. MM(Central), THC, Delhi who brought the summoned record i.e. file of FIR no. 281/1999 of PS Timarpur has deposed in his examination-in-chief that the original file was not available, therefore, the order regarding the reconstruction of file was made on 27.11.2003. The witness has admitted that there was a fire at Court Room wherein the said file was burnt and that he cannot say whether the SHO concerned had filed the original documents of sale purchase document of Udaivir Singh on judicial record or not. The copy of Fard Makboojgi & proceeding sheet dt. 27.11.2003 is Ex.PW 4/1 & Ex.PW4/2 (File seen & returned). The witness has admitted that as per the Fard Makboojgi available on record 12 pages of documents were received by the IO from the Advocate of Mr. Udaivir Singh related to the property in question and the documents were Power of Attorney, Agreement to Sell, Affidavit receipt etc. and that Page 16 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 there were two sets of documents one by Sh. Narender in favour of Sh. Udaivir Singh and another set was executed by Mr. Abdul Razzak in favour of Sh. Narender Kumar. In his cross-examination, PW-4 has stated that he has no personal knowledge of the present FIR and cannot say whether the original documents were taken by the IO from the Advocate of Mr. Udaivir Singh or the photocopies.
PW-5: HC Paras Ram, No. 428/N, PISNo. 28940396, PS Timarpur, Delhi who brought the summoned record i.e. FIR No. 281/1999 dated 28.05.1999 in his examination-in- chief has deposed that copy of the same is filed on record and is Ex.PW5/1 (OSR). He has further deposed that he has no knowledge of the documents received by the then IO from Sh. Udaiveer Singh in respect of property in question and that he does not recognize the signature of IO/Sh. Ram Murti. The witness was not cross-examined despite opportunity given.
PW-6: Mr. Ram Phool Meena, LDC, O/o Sub-registrar- I, Kashmiri Gate, Delhi who brought the summoned record i.e. Will dt. 01.10.1996 executed by Sh. Narender Singh in favour Sh. Udayvir Singh vide registration no. 34505 in additional book no. III Vol. 2748 on page 176 and filed the copy of same on record today which is Ex.PW6/1 (OSR).
Page 17 of 33 (Sonam Singh-II)Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 The witness was not cross-examined despite opportunity given.
PW-7: SI Ram Murti, No. D-3904, Special Branch, Asaf Road, Delhi in his examination-in-chief has deposed that he was the investigating officer of case FIR No. 281/1999 u/s 420/468/471/477/120B/34 IPC registered with P.S. Timarpur, Delhi and that as per the Order of Hon'ble High Court of Delhi in the bail matter of Udaivir Singh, he received the original sale relevant documents from the Advocate of Udaivir Singh there at Delhi High Court compound on 07.07.1999 i.e. the documents General Power of Attorney, Agreement to Sell, affidavit, receipt, simple agreement of dated 25.01.1994 executed by Sh. Abdul Razaq son of Abdul Samad in favour of Sh. Narender Singh son of Sh. Raghubir Singh and the documents General Power of Attorney, Agreement to Sell, affidavit, receipt, Will dated 01.10.1996 executed by Sh. Narender Singh son of Sh. Raghubir Singh in favour of Sh. Udaivir Singh son of Sh. Shiv Raj Singh. He has further deposed that he received the said documents with his writing which bearing signatures at point-A on the document executed by Abdul Razaq in favour of Sh. Narender Singh and at point-B in the documents executed by Narender Singh in favour of Sh. Udaivir Singh and that Page 18 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 he put the original documents in the case file of FIR no. 281/99 in the seizure memo dated 08.07.1999 which bears his signature at point-C. The photocopy of seizure memo was submitted by PW-4, the Ahlmad of the Court of Sh. Gagandeep Singh the then Ld. MM, Delhi and the seizure memo is Ex. PW7/1, GPA is Ex.PW7/2, Affidavit is Ex.PW7/3, Agreement is Ex.PW7/4, receipt is Ex.PW7/5, Agreement dated 25.01.1994 is Ex.PW7/6, GPA executed by Narender in favour of Udaivir Singh is Ex.PW7/7, Agreement to sell is Ex.PW7/8, Affidavit is Ex.PW7/9, receipt is Ex.PW7/10 and Will is Ex.PW7/11. In his cross- examination by the Ld. Counsel for defendant no. 1, PW- 7 has stated that the above mentioned documents which were seized by him on behalf of Sh. Udaivir Singh were only notarized and were not registered and only Will dated 01.10.1996 executed by Narender Singh in favour of Udaivir Singh was registered. The witness has admitted that all the above mentioned documents were pertaining to property/Khasra No. 5/10, Village Kamalpur Mazra, Burari, Delhi. He has further admitted that the FIR number 281/99 which was registered by the P.S. Timarpur against Udaivir Singh Chauhan and Narender Singh (since deceased) was registered as Guddi Dhillo was owner of Khasra No. 5/9 Village Kamalpur Mazra, Burari, Delhi and Udaivir Singh Chauhan tried to trespass into the plot of Page 19 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 Smt. Guddi Dhillo. The witness has further admitted that there was a registered sale deed in respect of plot Khasra No. 5/9 in favour of Smt. Guddi Dhillo executed by Sh. Mahender Singh and that the original sale deed was seized by him during the investigation but the same was burnt in the court premises itself. He has further admitted that when the FIR was registered the plot in which Sh. Udaivir Singh Chauhan was claiming ownership was part of Khasra No. 5/9. The witness has stated that he does not know whether the plot in suit falls in Khasra No. 5/9 or 5/10 there was a small boundary wall and that from the general enquiry, the person told that the plot belongs to Guddi Dhillo.
Defendant Evidence:
7. On behalf of defendant no.1, two witnesses have been examined as under:
DW-1: Ms. Goodi Dhillo (Defendant no.1) has tendered her evidence by way of affidavit which is Ex.DW1/A and has relied upon documents Ex. DW1/1, Ex.DW1/2 (OSR) and Ex.DW1/3 (Colly) (7 pages). In her cross-examination, DW-1 has stated that when she purchased the plot in question the complete address of the plot was Khasara No.5/9, Village- Kamalpur, Majra, Burari, Delhi and today it is House no. 263, A Block, Tomar Colony, Village Kamalpur, Majra, Burari, Delhi Page 20 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 which was alloted about 8-9 years ago. The witness has stated that she bought this property from Sh. Mahender Singh S/o Rajpal Singh and was registered on 22.02.1985. She has further stated it may be correct that the land in question falls in revenue estate and that she does not know exactly whether Sh. Mahender Singh was the recorded owner in respect of the property in suit in the revenue record and he didn't provide any document of ownership in respect of the suit property to her at the time of purchasing plot in the year 1985. The witness has stated that she cannot say if any document of ownership was produced by Sh. Mahender Singh to the Sub-Registrar concerned and has admitted that the actual owners of the Khasra number 5/10 were Sh. Bhishmbar Singh and Sh. Vijay Singh. The witness has further stated that she does not have any document to show that Bishambar Singh and Vijay Singh had sold the property to Mahender Singh. She has further stated that Sh. Bhishambar & Vijay Singh did not sell the property in question to Abdul Razak and therefore no question arises of it being sold to Narender Singh or to the present plaintiff. DW-1 has further stated that she started construction of the boundary wall in the year 1987 and does not remember the month or date. She has further stated that the boundary wall was completed within two or three months and she never resided in the Page 21 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 property in question but regularly visited the same and that she visited on various occasions between October 1996 to March 1999. The witness has further stated that she lodged her first complaint to the police against plaintiff and Sh. Narender on 28th April 1999. On 27.04.1999 one Smt. Lata Mittal, resident of Khasra number 5/10 informed regarding the encroachment of the plot in question by Sh. Narender and some other person. Smt. Lata Mittal is the resident of Gali no.3 in Khasra number 5/10. She has further stated that Khasra number 5/10 is north facing and again said Khasra number 5/10 is south facing and Khasra number 5/9 is north facing. She has further stated that Sh. Bijender Singh who stays in gali no. 6 stated that he is the owner and in possession of the plot in question. The witness has stated that she does not know the Khasra number of Gali no.6 and Sh. Mahinder Singh started the colony in the year 1984. It is further stated that Sh. Bijender Singh has also purchased the plot in same year. The witness has stated that she has no other plot in the area of village Burari and further stated that on the eastern side of property in question one Sh. Pradeep Kumar is residing bearing house no. 262 and on western side, the property is owned by Sh. Ram Bhateri bearing housing no. 264. The witness has admitted that the properties of Sh. Bhishmbar and Vijay fall within the Khasara number 5/10 and further stated that Page 22 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 Mahender Singh told her that the property in question falls in Khasara number 5/9 and vol. stated that the property of Narender also falls in Khasara number 5/9. The witness has stated that she does not know if Sh. Narender sold the property to Sh. Udaivir falling in Khasara number 5/9 and that she has never inquired from any revenue authority with regard to the Khasra number of the property in question. She has further stated that there is no sign board showing that the property in question falls in Khasra number 5/9. The witness has admitted that she has purchased the property in Khasra number 5/9. Apart from this, DW-1 has denied the suggestions put to her on behalf of plaintiff.
DW-2: Sh. Anoop Singh, Record Clerk, O/o Sub- Registrar-II, Kashmere Gate, Delhi has deposed in his examination-in-chief that as per the summoned record i.e Sale deed dated 22.02.1985 vide Regd. No. 2429, in additional book no.1, vol. no. 4611 on pages 29 to 31 dated 22.02.1985 is executed by Sh. Mahender Singh in favor of Smt. Goodi Dhillon, photocopy of which is already on record & the copy brought by him is Ex. DW2/A. The witness was not cross-examined on behalf of plaintiff despite opportunity given.Page 23 of 33 (Sonam Singh-II)
Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16
8. Final Arguments advanced on behalf of parties have been heard. Written arguments have also been filed on behalf of plaintiff and defendant no.1. Record has been carefully perused.
Findings:
Issue No.1: Whether the plaintiff is entitled to decree of declaration, as prayed for? OPP Issue No.2: Whether the plaintiff is entitled to decree of possession, as prayed for? OPP Issue No.3: Whether the plaintiff is entitled to decree of permanent injunction, as prayed for? OPP Issue No.4: Whether the suit property falls in Khasra Nos. 5/9 or 5/10? Onus on both the parties.
9. The aforesaid issues are taken up together being inter-
related and can be decided by way of common appreciation of evidence on record. The onus to prove issues no. 1 to 3 was on plaintiff and that of issue no.4 on both parties. Plaintiff in his affidavit Ex. PW1/A has deposed that he is the owner in respect of plot land area measuring 100 sq. yds. bearing Khasra No. 5/10 situated in the area of Village Kamalpur, Burari, Delhi known as Tomar Colony, Burari, Delhi and purchased the same on 01.10.1996 from Sh. Narender Singh through GPA, Agreement to Sell, Affidavit, Receipt and Registered Will Page 24 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 all dated 01.10.1996 for consideration amount of Rs 72,000/-. The aforesaid documents dated 01.10.1996 are Ex. PW7/7 to E. PW7/11. He has further deposed that the suit property was purchased by Sh. Narender Singh from Sh. Abdul Razzak on 25.01.1994 vide GPA, Affidavit, Agreement for Sale, Receipt, etc. for consideration amount of Rs 25,000/- and the said documents executed in favor of Sh. Narender Singh are Ex. PW7/2 to Ex. PW7/6. He has further deposed that Sh. Abdul Razzak became owner of the suit property after purchasing the same from Sh. Bishamber & Sh. Vijay Singh through registered sale deed on 06.12.1984 for Rs 750/-. He has further deposed that after raising construction of boundary wall & one room over the suit plot with tin shed he started residing therein, however, later shifted to Baddi, Himachal Pradesh on 31.03.1999 for employment & used to visit the suit property in Delhi. He has further deposed that on 02.05.99 he was informed by his cousin- Narender Singh that the tin shed has been removed, locks have been broken, his luggage removed & side wall has also been demolished and plaintiff accordingly reached the suit property on 04.05.1999. He has further deposed that no action was taken by the police officials on complaint made by him as the identity of the suit plot was disputed by defendant no.1. It is thus deposed Page 25 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 that the suit plot belonging to plaintiff falls in Khasra No. 5/10 whereas that of defendant no.1 falls in Khasra No. 5/9 and the plots adjoining the suit plot also falls in Khasra No. 5/10.
10. Perusal of Ex. PW1/1 relied upon by plaintiff reveals that it is the site plan of Plot no. 21, Khasra No. 5/10, Gali No.5, Tomar Colony, Mazra Kamalpur, Burari, Delhi and is bounded as follows: East- Property of Praveen Kumar, West- Property of Jagdish Goyal, North- Front Gali No.5 and South- Back Gali, whereas, perusal of the property/ownership documents relied upon plaintiff namely: GPA Ex. PW7/2, Agreement for sale Ex. 7/4 executed in favor of Sh. Narender Singh by Sh. Abdul Razzak as well as GPA Ex. PW7/7, Agreement for sale Ex. PW7/8 & Regd. Will Ex. PW7/11 executed in favor of plaintiff by Sh. Narender Singh reveals that the suit plot is shown bounded as follows: East- Gali 8 ft, West- Road 17 ft, North- Other plot and South- Other plot, thereby implying that the identity of suit plot claimed by plaintiff and that of the one sold out to him is not same. In any case, the ownership documents relied upon by plaintiff qua the suit plot are notarized and same has also been admitted by plaintiff in his cross-examination. Even though plaintiff has stated that the suit plot was purchased by Sh. Abdul Razzak from Sh. Bishamber & Sh. Vijay Singh vide Page 26 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 registered sale deed, and has relied upon copy of the same as Mark-K (colly), however, the documents executed in favour of Narender Singh by said Abdul Razzak and thereafter in favour of plaintiff are all unregistered and notarized except the Will. It is pertinent to mention here that the Hon'ble Supreme Court in Suraj Lamp Industries (P) Ltd. (2) v. State of Haryana & Anr (2012) 1 SCC 656 has clearly observed that SA/GPA/will transactions do not convey any title nor create any interest in an immovable property. It was reiterated by the Hon'ble Apex Court that an immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance and transactions of the nature of "GPA sales" or "SA/GPA/will transfers"
do not convey title and do not amount to transfer, nor can they be recognized as valid mode of transfer of immovable property.
11. Defendant no.1, on the other hand, has contended that the suit plot doesn't fall in Khasra (Kh.) No. 5/10 but in Kh. No. 5/9 of which she is the owner having purchased the same from Sh. Mahender Singh vide registered sale deed on 22.02.1985. She has further contended that plaintiff has mischievously filed the site plan of property belonging to defendant no.1 and falling under Kh. No. 5/9. Now, Page 27 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 perusal of Ex. DW 2/A relied upon by defendant no.1 reveals that it is a Registered sale deed executed on 22.02.1985 (i.e. prior to the execution of GPA, etc. in favor of plaintiff on 01.10.1996) by Sh. Mahender Singh in favor of defendant no.1 qua 100 sq. yds. part of Kh. No. 5/9 situated in area of Village Kamalpur Mazra, Burari, Delhi by virtue of sale deed regd. as no. 11988, in Addl. Book No.I, Vol. No. 4518 on pages 181 to 185 dated 06.12.1984, Delhi and certified copy of which sale deed has also been filed on record by defendant no.1 as Ex. DW1/X and perusal of which reveals that it was executed in favor Sh. Mahender Singh on 06.12.1984 by Sh. Bishambar & Sh. Vijay Singh. Thus, whereas defendant no.1 has relied upon registered sale deeds as discussed herein, plaintiff on the contrary has admitted that there is no sale deed in his favor qua the suit property or any other plot. Plaintiff has further not denied, rather, expressed his ignorance that the plot of defendant no.1 falls in Kh. No. 5/9. It is pertinent to note here that whereas plaintiff has claimed that he used to reside in the suit plot after raising construction thereon, however, in his cross-examination, plaintiff has stated that he has no documentary proof to show the same & has further stated that there was no facility like ration card, electricity or water connection therein. The said statement in view of the Court is not Page 28 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 readily believeable as plaintiff claims to have been residing in the suit property from 01.10.1996 till 31.03.1999 i.e for almost 2.5 years without electricity & water connection. It is again pertinent to mention here that in para no.5 of his affidavit Ex. PW1/A plaintiff has deposed that on 02.05.1999 he was informed by his cousin Narender Singh on telephone that someone has removed the tin shed after breaking the locks of the house & also demolished the side wall & removed his luggage, whereas, in his cross-examination, plaintiff has denied the same. Plaintiff has also alleged that no action was taken on the complaint made by him qua the aforesaid, however, he has also admitted that from year 1999 till 2010, he has not filed any criminal complaint qua the non-action by police. Furthermore, PW-2 who claims to have been residing in the same locality since twenty years has also expressed his ignorance as to the owners of adjacent plots towards eastern & western side of plaintiff's plot and has rather stated that he cannot say as to what is written in his affidavit Ex. PW2/A.
12. Moving further, perusal of the Khatoni of Village Majra Burari brought by PW-3 (Patwari, SDM, Tis Hazari, Delhi) Ex. PW3/1 (OSR) & as has also been stated by PW- 3 that Khasra No. 5/10 is in the name of Gram Sabha. Furthermore, PW-7 in his cross-examination has admitted Page 29 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 that when the FIR was registered against plaintiff the plot in which he was claiming ownership was part of Khasra No. 5/9 and that from general enquiry, he was told that the plot belongs to defendant no.1. Moreover, DW-1 in her cross-examination has denied that plaintiff was residing in the suit property from October 1996 to March 1999 and has stated that she visited the same on various occasions during the said period. She has denied that Khasra No. 5/9 starts on the eastern side of suit property and has rather stated that the property of Narender also falls in Khasra No. 5/9. DW-1 has further denied that the suit property was purchased by plaintiff and falls in Khasra No. 5/10. DW-1 has admitted in her cross-examination that she has purchased the property on Khasra No. 5/9. Besides her own testimony, DW-1 has also relied upon Ex. DW1/1 which is the Status Report filed on record by the SI, PS- Burari dated 20.11.10 wherein it is submitted that as per the enquiry conducted in connection with the ownership & possession of property situated in Khasra No. 5/9, Kamalpur Mazra, Delhi, the said property is in possession of defendant no.1- Ms. Guddy Dhillon.
13. Thus, while plaintiff on the one hand has not filed any registered document qua the suit property and has merely relied upon the notarized documents i.e GPA, Agreement to sell, etc. executed in his favor on 01.10.1996 by Page 30 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 Narender Singh and also relied upon other notarized GPA sales and the documents vide which said Sh. Narender Singh became the owner of suit property, plaintiff has also not been able to prove the site plan filed on record annexed with plaint and also failed to establish his possession of the suit property. Defendant no.1 on the other hand has been able to show that the suit property is in her possession as also transpires from the status report filed on record which has gone unchallenged by plaintiff. Further, as per Ex. PW3/1 which is the Khatoni of Village Majra Burari for year 1989-90 Khasra No. 5/10 is in the name of Gram Sabha. From the discussion made herein, it thus transpires that plaintiff has neither been able to establish his ownership nor his possession of the suit property and accordingly Issues No. 1, 2 & 3 are decided against plaintiff and in favor of defendants.
14. As far as Issue No. 4 is concerned, plaintiff has not been able to prove the same as discussed in preceding paragraphs. Even though defendant no.1 has relied upon Ex. DW1/1 however the said report is only with respect to the possession of the suit property. PW-7 in fact in his cross-examination has stated that he does not know whether the plot in suit falls in Khasra No. 5/9 or 5/10. Further, it is the main contention of defendant no.1 that the site plan which is Ex. PW1/1 relied upon by plaintiff Page 31 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 pertains to the plot of land owned by her and falling under Khasra No. 5/9. However, as already discussed earlier, as per Ex. PW1/1 the Eastern side of the suit property is bound by the property of one Praveen Kumar and the Western side by that of one Jagdish Goyal, whereas, in her cross-examination defendant no.1 has stated that on the Eastern side of the suit property one Sh. Pradeep Kumar is residing whereas in the Western side thereof is the house owned by Sh. Ram Bhateri. Furthermore, defendant no.1 has admitted that the properties of Sh. Bishambar & Sh. Vijay falls within the Khasra No. 5/10. Now perusal of Ex. DW1/X which is the certified copy of registered sale deed dated 06.12.1984 by Sh. Bishambar & Sh. Vijay in favor of Sh. Mahender Singh shows that it was executed qua the land measuring 7 bighas 12 biswas bearing part of Khasra No. 5/10 (2-8), 5/9 (3-3) and 5/8 (2-1) situated in the area of Village Kamalpur, Mazra Burari, Delhi. Defendant no.1 in her cross-examination has also stated that she has never enquired from any revenue authority with regard to the Khasra No. of the suit property. Issue no.4 is thus decided accordingly.
Findings:
15. In light of appreciation of evidence as discussed above and findings arrived on Issues no.1, 2 & 3 the present suit Page 32 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi Shri Udaibir Singh Chauhan vs. Ms. Guddy Dhillo & Ors.
CS SCJ : 1198/16 instituted by plaintiff against defendants is hereby dismissed. No order as to costs. Decree sheet be prepared accordingly.
16.Filed be consigned to Record Room.
Digitally signed by SONAM SONAM SINGH SINGH Date:
2022.11.02 17:08:31 +0530 Pronounced in open court: (Sonam Singh-II) Dated: 02.11.2022 Civil Judge-07, Central, Tis Hazari Courts, Delhi Note: This Judgment contains thirty three pages and all the pages have been checked and signed by me.
(Sonam Singh-II) Civil Judge-07, Central, Tis Hazari Courts, Delhi Page 33 of 33 (Sonam Singh-II) Civil Judge-07, Central, Delhi