Delhi District Court
(East) vs Smt. Suresh on 13 May, 2010
IN THE COURT OF MS. NIRJA BHATIA, SENIOR CIVIL JUDGE
(EAST), KKD, COURTS, DELHI
Suit No. 629/08
Mahinder Kumar
S/oSh. Ram Saran
R/o C-342, Old Seema Puri,
Delhi ....Plaintiff
Versus
1. Smt. Suresh
W/o Sh. Babu Lal
2. Sh. Babu Lal
S/o Sh. Durga Parsad
R/o C-42/B, Railway Colony,
Jal Vihar, Near Lajpat Nagar, New Delhi ...Defendants
Nature of Suit : Suit for possession under section 6 of
Specific Relief Act
Date of Institution : 02/02/2000
Reserved for order : 26/04/2010
Date of Decision : 07/05/2010
JUDGMENT
1. By this judgment I shall decide the present suit filed by the plaintiff for seeking the relief of possession u/s 6 of Specific Relief Act.
2. The facts relevant for decision of the present suit have been detailed by the parties in their respective pleadings. The plaintiff has alleged that his father Late Sh. Ram Saran was the owner of the property bearing no. C-367, Old Seema Puri, Delhi which was built up to double storey about 25 years back from the date of filing of the suit. Sh. Ram Saran died on 07/01/1999 leaving behind the plaintiff and defendant no.1 as his LRs. Defendant no.2 is the husband of defendant no.1. Plaintiff claims that during the life time of Late Sh.Ram Saran he did not leave any will and died intestate. The documents pertaining to the ownership of the property are alleged to be in possession of the defendants. Plaintiff states that by virtue of 629/08 1/12 being son of Late Sh. Ram Saran and for the reason that he did not leave any will despite being owner of the above mentioned property, he became part owner and is in occupation as such of the suit property alongwith his family comprising of his wife and four children. He claimed that he was in possession of the property till 28/01/2000 which was in his power and possession qua which he can submit many proofs. However on 28/01/2000, defendants in active connivance of local police of PS Seema Puri dispossessed the plaintiff from the portion shown in red colour in the site plan from the lawful occupation of the suit property which he was enjoying since last many years. It is claimed that at the instance of defendants, the local police went to the extent of registering a criminal case bearing FIR no. 30/2000 u/s 448 of IPC and as consequence of which plaintiff has been released on bail subsequently. It is claimed that goods of the plaintiff and his family members, lying in the above mentioned premise have been taken in possession by the local police and are lying in Police Station. It is averred that plaintiff's wife after being released on bail wrote a letter dated 29/01/2000 to the Chief Justice as well as DCP (North East), commissioner of police against the acts of illegal dispossession. In the backdrop of above it is prayed that possession of the room shown in red colour in the site plan be restored to the plaintiff.
3. Defendants filed WS and took preliminary objections stating 629/08 2/12 that plaintiff was not in possession in portion of the suit property bearing no. C-367, Old Seema Puri, Delhi six months prior to the institution of the present suit. It was stated that the suit is not maintainable u/s 6 of Specific Relief Act. It was claimed that plaintiff has no locus to file the present suit as he has no right, title or interest in the suit property. It was claimed that the plaintiff approached the court with unclean hands and is guilty of suppression of material facts as he has not disclosed that he was occupying the part of the property as licensee with the defendants prior to May 1997. However when the defendant realised that despite having close relationship with the defendants, the intention of the plaintiff is to grab the property of the defendants, the defendant terminated the licence of the plaintiff on last day of May 1997. He also took by way of abundant precautions a letter from the plaintiff in which he admitted the fact of his vacating the suit property. However, after lapse of about 2-1/2 years the plaintiff suddenly trespassed into the room of the suit property owned by the defendants in the month of January 2000 for which an FIR has been registered against the plaintiff at PS Seema Puri. It is claimed that the present suit is filed as counter blast due to the lodging of FIR against the plaintiff. It was averred that suit of the plaintiff is otherwise no maintainable as is barred by section 41(h) of Specific Relief Act.
4. While replying merits, the averments that property bearing no. C-367, Old Seema puri was owned by Late Sh. Ram Saran who 629/08 3/12 built up the same about 25 years back was denied. It was denied that Sh. Nain Sukh was living in the suit property as member of the plaintiff's family. It is further denied that after demise of Nain Sukh the plaintiff and defendant no.1 being the LR of deceased are in occupation of the property being joint owners.
5. Defendant claims that defendant no. 2 Babu Lal is the owner of the property in question and in his own right he is occupied the same. It is averred that even the electricity and water connection installed in his name have been provided by the concerned authority since last many years. It was claimed that the plaintiff has no concern and connection with the suit property. It is stated that neither Ram Saran no Nain Sukh had any concern or connection with the disputed property. It is claimed that defendant no.2 has been in continuous possession of the suit property, being owner part of which he even let out to the tenants without having received any objection from any corner including plaintiff.
6. Defendant denied that plaintiff was in continuous possession of the property till 28/02/2000 with his wife and children. It is claimed that if there is document showing possession of plaintiff, same is procure by deceitful manner.
7. Defendant states that plaintiff was arrested and is being prosecuted for committing trespass of having criminal offence, he has filed the present suit. It is further averred that the contents of the plaint 629/08 4/12 are self contradictory and he is moping in the Dark.Rest of the averments are denied. It is specifically denied that plaintiff was in possession in any part of the suit property uptil January 2000. It is claimed that plaintiff has no cause of action and the suit of the plaintiff is liable to be dismissed.
8. Replication was filed to the WS of defendants wherein contents of the plaint are reaffirmed and those of WS are denied and disputed.
9. Subsequent to the completion of pleadings, issues were framed by Ld. Predecessor vide order dated 10/07/2003:-
1. Whether the suit has not been valued properly for the purpose of court fee and jurisdiction?OPD
2.Whether the suit is barred under section 41(h) of Specific Relief Act?OPD
3.Whether the plaintiff has cancealed the material facts. If so, its effect?OPD
4. Whether the plaintiff was in possession of the suit premises within six months prior to the institution of this suit?OPP
5. Whether the plaintiff is entitled to the re-possession of the room on the ground floor of property no . C-367, old Seema Puri, Delhi?OPP
6. Relief.
10. Subsequent to the framing of issues parties were called 629/08 5/12 upon to lead their respective evidence. Plaintiff appeared as his own witness. Defendant also appeared as his own witness. During trial misc application u/o 18 Rule 17 read with section 114 and 115 CPC besides other application u/s 151 CPC for taking additional documents on record were also disposed off. After completion of evidence, parties were asked for making their respective submissions. None appeared on behalf of the plaintiff to either pay cost and or to make oral arguments. In view of the above circumstances, I have proceeded to announce the judgment as matter is old and was filed in the year 2000.
11. I propose to deal with the issues in the following manner:- ISSUE NO. 1 & 2
12. The onus to prove these issues was upon the defendant. It is stated that the suit of the plaintiff in not valued properly for the purpose of court fee and jurisdiction. However apart from making these allegations the defendant did not come forward to lead any evidence specifically thereupon. No evidence is cited that other efficacious and more suitable remedy is available with the plaintiff except filing the present suit. No doubt that the plaintiff in view of the averments made in the plaint wherein it is claimed that he is also one of the LRs of Late Ram Saran apart from defendant no.1 and by virtue of which, enjoying the possession of the suit property, could have also filed suit for possession, however, it is for the plaintiff to choose his remedy. The 629/08 6/12 present provision prescribed under Specific Relief Act is summary procedure and is intended to provide expeditious redressal. For want of any material to show that the plaintiff could not have sued under the present provision, I am of the view that the present suit is equally maintainable and issue no.1 rest in favour of the plaintiff and against the defendant.
13. Defendant was also under burden to show that the suit of the plaintiff is not properly valued as alleged. However during evidence, no effective cross examination of plaintiff is done on this aspect, except, putting few questions about the market value of the portion qua which the suit is filed. Plaintiff has averred the market value of the suit property was about 60, 000/- whereafter there is no further cross examination. The defendant has not produced any material that the suit portion, is having much more than Rs.60,000/-. No documentary evidence by way of any notification such as for circle rates, land rates for assessment of tax etc. reflecting the rate of land/area in dispute per square yards is not provided. No sale deed o the area is brought on record to show that the land similarly located is valued much more than than the assessment of plaintiff in its valuation. The onus is not duly discharged. The issues rest in favour of the plaintiff and against the defendant.
ISSUE NO. 3,4,5 & 6
14. To prove that plaintiff is entitled to the relief u/s 6 of the 629/08 7/12 Specific Relief Act, he was burdened to show the following:-
a) That he was in exclusive possession over the disputed property.
b) That disputed property is an immovable property.
c) That the plaintiff was dispossessed within the six months from the date of suit.
d) That dispossession was effected without the consent of the plaintiff.
e) That the dispossession aforesaid was effected otherwise than in due processs of law.
f) That dispossession is by one other than Government.
Reliance is placed in Arya Samaj Shri Karanpur v. Prithvi Raj ( Rajasthan) 204 (3) CC 608.
15. Apart from that plaintiff was also burdened to show that he is approaching the court without concealing material fact and is not disentitled to relief due to any of his conduct. Plaintiff in his suit himself admitted that he had been removed from the possession qua one room by police on 28/01/2000. It is reflected from his own evidence that FIR bearing no. 30/2000 of PS Seema Puri was registered against him. Defendant has produced copy of said FIR. He has also produced the certified copy of the charge sheet u/s 448/34 IPC prepared on the basis of FIR no. 30/2000. The charge sheet which is based upon investigation made on the FIR no. 30/2000 reflects that 629/08 8/12 the action has been taken upon the plaintiff for the act of trespassing made by him in the suit property. The act has been alleged by defendant no.2 wherein he has been disclosed that the plaintiff was licensee of the defendants uptil 1997 whereafter he executed a writing Ex. DW2/P1 stating that he has vacated the property whereafter he is left with no interest in the suit property. The plaintiff despite executing the said writing trespassed taking the advantage of absence of the defendant for which complaint Ex. DW1/D1 was made against him. On the basis of said complaint, matter had been investigated and plaintiff as well as his wife were arrested.
16. Though the plaintiff was under burden to prove specifically that act of dispossession under registration of the FIR was without following due process. Plaintiff failed miserably in proving the above. Though he alleged that defendants were in connivance with police in committing the act of the plaintiff's dispossession he did not implead any of the police officials qua whom the alleged connivance could have been proved. The plaintiff produced no proceeding qua investigation and of the complete copy of charge sheet showing his innocence. The plaintiff did not produce the statements u/s 161 Cr. PC and/or the same recorded during court proceedings in which the evidence of witness could establish the factum of his false implication for the reason of his removal from the suit portion. The plaintiff did not even produce the action taken report of police on the complaints 629/08 9/12 made by his wife against the act of removal. Plaintiff also failed to show that he pursued complaints after being released on bail. recorded was no produced. For failure of plaintiff to produce any evidence which could establish that his dispossession was contrary to the due process and/or there was no material to reach on the conclusion against his alleged act of trespass, he could not show that he has been dispossessed in connivance of defendants with police without following due process.
17. Another ingredient which plaintiff was burdened to prove was qua his competency to receive the relief of possession by virtue of his exclusive possession. The Plaint shows that the property bearing no. C-367, Old Seema Puri, Delhi is a built up uptil two storey. It is also shown from the pleadings of the plaintiff that apart from him defendants were also residing with their family in the property which were being enjoyed by way of joint possession. He admitted that property in question was built in area of 22.5sq yards and area qua which he claimed dispossession was about half of whole area of ground floor. Further in cross examination, defendant no.1 clarified that place of plaintiff's residence during the period of his occupation (as licensee), was not fixed. He sometime lived on the ground floor and sometime on the first floor. Even on the ground floor he sometime lived in room Mark A and sometime in room marked B as shown in the site plan Ex. PW1/1. The suggestion that the plaintiff remained in the 629/08 10/12 room Mark A uptil 28/01/2000 has been denied. After receiving these statements, the onus shifted on the plaintiff to show that he was in exclusive possession of the portion shown mark A as per site plan. No evidence in this respect is produced. Even the fact that property bearing no. C-367, Old Seema Puri is occupied by the tenants is also not put to dispute. As observed above, it is one of the requisite that the plaintiff to show his exclusive possession in the absence of which no judgment can be made. On this ground alone as decree incapable of execution is negatory, plaintiff has failed to show the capability for grant of relief. I am guided with the judgment 1975 AIR (J & K)47 wherein it is held that "Such a decree in my opinion is declaratory in character and declares only the title of the decree-holder to remain in possession and the only effective remedy available to the decree-holder would be a suit for partition. In the suit for partition which becomes an indispensable remedy for the holder of a decree for joint possession the question of title is again to be gone into as it could not be deemed to have been settled in the suit under section 9 of the Act, such a question being wholly extraneous to such a suit. Where then is a benefit, which possibly can be said to have accrued to the holder of a decree for joint possession? In my opinion none as such a decree could not operate as res judicata in a subsequent suit for partition based or resisted on the ground of title."
"The whole proceedings therefore right from the date of the institution of the suit under section 9 of the Act till the date of the final execution of the decree under Order 21, Rule 35, Sub-rate (2) of the Civil P.C. Could constitute an extremely painful loss of labour. The lagislature could never be presumed to have intended to enact a provision a resort to which would lead a person nowhere. Such an absurdity has therefore to be avoided by placing an interpretation on section 9 of the Act which would further rather than negative the purpose of the section. A decree for joint possession could not therefore fall within the purview of section 9 of the Act."
18. Apart from the above, the suit of the plaintiff suffers from 629/08 11/12 infirmity on account of misjoinder and non joinder of necessary parties. The plaintiff has made no effort to implead police official against whom the connivance and collusion is alleged. In the absence of their being a party, factum of collusion could not be proved, conclusively. The plaintiff did not make any effort even to implead his own wife who is one of the accused in FIR No. 30/2000 and has been let off on bail as per his own plaint. In such circumstances also, the plaintiff failed to show sufficient material for reaching on conclusion in his favour. The plaintiff was also required to establish that he was having continuous and peaceful possession of suit property prior to his alleged dispossession. Plaintiff admitted that electricity bill of defendants as the same were in the name of defendants. Even the water connection was admitted in the name of defendant. Plaintiff did not produce any independent document to show his possession. The school reports of his children could not conclusively establish the un-interrupted possession within six months from the date of alleged dispossession. Plaintiff is not entitled to the relief as he has not been able to prove by requisite ingredients for granting the relief under the above provisions. The suit of the plaintiff is accordingly dismissed. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT NIRJA BHATIA
ON 07/05/2010 SR. CIVIL JUDGE(EAST):
KKD COURTS, DELHI
629/08 12/12
Suit No. 629/08
07/05/10
Present: None.
Vide separate judgment, the suit of the plaintiff is dismissed. Decree sheet be prepared accordingly. File be consigned to Record Room.
NIRJA BHATIA SR. CIVIL JUDGE(EAST):
KKD COURTS, DELHI 629/08 13/12 629/08 14/12