Delhi District Court
Manak Chand vs Ram Avtar on 23 May, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURT, DELHI
CS 476261/15
CNR NO. DLNE01-000153-2013
MANAK CHAND
S/O LATE JAGANNATH
R/O VILLAGE BALPURA
POST HAZIPUR NERA, PS GIROR
TEHSIL KARHAL, DISTRICT MAINPURI
UP
....PLAINTIFF
V
1. RAM AVTAR
S/O LATE JAGANNATH
R/O B-296, GALI NO 1-A
K-BLOCK, WEST GHONDA
DELHI-110053
2. RUSTAM SINGH
S/O LATE JAGANNATH
R/O B-296, GALI NO 1-A
K-BLOCK, WEST GHONDA
DELHI-110053
(The defendant no 2 was impleaded vide order dated 23.09.2014 but he did
not prefer not to contest suit and vide proceedings dated 20.03.2015 his
appearance was dispensed with)
....DEFENDANTS
INSTITUTION: 23.08.2013
ARGUMENTS: 11.02.2020
JUDGMENT:23.05.2020 SUIT FOR POSSESSION, PARTITION, DAMAGES/MESNE PROFIT, DECLARATION, MANDATORY AND PERMANENT INJUNCTION CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 1/31 JUDGMENT
1. The plaintiff/Manak Chand (hereinafter referred as "the plaintiff") filed present suit for Possession, Partition, Damages /Mesne profit, Declaration, Mandatory and Permanent Injunction against the defendant no 1/Ram Avtar (hereinafter referred as "the defendant"). The plaintiff pleaded as under:-
The plaintiff and his brother i.e. the defendant no 2 are owners of the built up property measuring 50 sq. yards i.e. 25 sq. yards each out of property measuring 100 sq. yards bearing no B-296, Gali No 1-A, K-Block, West Ghonda, Delhi-
110053 which the plaintiff and the defendant no 2 had purchased from Kiran Devi w/o Ghansham Singh r/o Village Piraj Pur, District Bulandsahar, UP on 28.04.1988 vide registered General Power of Attorney, Agreement to Sell, Affidavit and other documents.. The plaintiff as such is owner of the property measuring 25 sq. yards (hereinafter referred to as "the suit property") as shown in red color in site plan. The defendant who is brother of the plaintiff and the defendant no 2, along with his uncle had purchased remaining portion of the property measuring 50 sq. yards bearing no B-296, Gali No 1-A, K-Block, West Ghonda, Delhi-110053 from Kiran Devi. The plaintiff, the defendant no 2 and the defendant before purchase of the property were residing as a joint family. The plaintiff after purchase of the property started to reside in front portion while the defendant started to reside in back portion of the property. The plaintiff had gone to his native village as his son got injured and came back on 17.08.2013 but the defendant did not allow him to enter into his property and claimed ownership of entire property measuring 100 sq. yards. The plaintiff on 20.08.2013 with intervention of local persons and relatives tried to convince the defendant but the defendant did not allow the plaintiff to enter in suit property which was under
ownership and the possession of the plaintiff. The police did not lodge report of the plaintiff. The defendant is harassing and humiliating the plaintiff and the acts of the defendant are illegal. The defendant is in illegal possession of suit property measuring 25 sq. yards which is owned by the plaintiff. The defendant is liable to pay damages @ Rs. 5,000/- per month. The defendant is intending to create third party interest in respect of the suit property which was under possession of the CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 2/31 plaintiff. The plaintiff being aggrieved filed the present suit and prayed as under:
i. to pass a decree of recovery of possession in favour of the plaintiff and against the defendant thereby directing the defendant to hand over the peaceful vacant possession of suit property admeasuring 25 sq. yards bearing no B-296, Gali No 1-A, K-Block, West Ghonda, Delhi-110053, more specifically shown in red colour in the site plan, to the plaintiff.
ia. to pass a final decree decree in favour of the plaintiff and against the defendant thereby directing the suit property bearing no. B-296, Gali no. 1A, K-Block, West Ghonda, Delhi-110053, more specifically shown in Red colour in the site plan attached be partitioned by meets and bounds and directing the defendant to give and handover the possession of 25 sq. yards to the plaintiff.
ii. to pass a decree of mesne profits and damages in favour of the plaintiff and against the defendant thereby directing the defendant to pay Rs. 5,000/- p.m. as well as other charges as damages to the plaintiff from date of filing this suit till realization, in the interest of justice.
iii. to pass a decree of declaration in favour of the plaintiff and against the defendant thereby declaring the forged, fabricated documents prepared by the defendant if any, pertaining to the entire suit property i.e. B-296, Gali no. 1A, K-Block, West Ghonda, Delhi-110053 as null and void and non- binding on the plaintiff.
iv. to pass a decree of mandatory injunction in favour of the plaintiff and against the defendant to handover the original document of suit property i.e. GPA, Agreement to Sell, Receipt & Will all dated 28.04.1988 executed by Smt. Kiran Devi w/o Ghanshyam Singh in favour of the plaintiff to the plaintiff.
v. to pass a decree of permanent injunction in favour of the plaintiff and against the defendant thereby restraining the defendant and his associates, family members, employees, servants, attorneys etc. permanently from selling, gifting, alienating, mortgaging and transferring, sub-letting or parting with the possession in any manner of the suit property bearing no. B-296, Gali no. 1A, K-Block, West Ghonda, Delhi-110053 which is more specifically shown in the site plan attached, in any manner to any third party with cost of the suit, in interest of justice.
vi. any other order(s), which this Hon'ble Court may deems fit and proper, may also be granted in favour of the plaintiff and against the defendant in the interest of justice.
2. The defendant filed the written statement and contested the suit. The defendant in preliminary objections stated that the suit is not maintainable as the defendant CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 3/31 purchased the entire property measuring 115 sq. yards including the suit property measuring 25 sq. yards on execution of General Power of Attorney and other documents out of his funds and earnings. The defendant is owner in possession of entire property. The defendant after purchase of the property raised construction and started to reside therein along with family. The defendant also became owner of the suit property by adverse possession. The defendant got executed title documents in respect of property measuring 50 sq. yards in favor of the plaintiff and the defendant no 2 without any intention to create title in their favor. The plaintiff at the time of property measuring 115 sq. yards was studying in the native village and was not having any source of income. The plaintiff never resided in the suit property measuring 25 sq. yards. The plaintiff also married in the native village and his children are also studying in native village. The plaintiff used to cast his vote in native village. The defendant is in continuous possession of entire property measuring 115 sq. yards since its purchase. The plaintiff has not filed correct site plan. The defendant is in possession of entire chain of documents. The plaintiff never remained in possession of any portion of the property measuring 115 sq. yards. The defendant is paying house tax and other charges to concerned authorities in respect of the property measuring 115 sq. yards. The plaintiff has not impleaded Rustam Singh (the defendant no 2) as necessary party. The plaintiff never served any notice for partition. The suit is without cause of action. The plaintiff did not appear with clean hands. The plaintiff has not properly valued present suit for purposes of court fee and jurisdiction. The suit is barred by limitation. The defendant on reply on merits denied other allegations of the plaintiff.
Rustam Singh was ordered to be impleaded as the defendant no 2 vide order dated 23.09.2014. Rustam Singh as the defendant no 2 did not prefer to contest suit and vide proceedings dated 20.03.2015 the defendant no 2 stated that he may be given his share in the property and accordingly appearance of Rustam Singh as the defendant no2 was dispensed with. The defendant no 2 stated to be settled disputes with the defendant and an application under Order XX111Rule 1 CPC was filed which was not allowed vide order dated 09.04.2019 by observing that the settlement between the defendant and the defendant no 2 did not have any CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 4/31 bearing on the suit.
3. The plaintiff filed replication to the written statement wherein he reasserted and reaffirmed previous stand.
4. The following issues are framed vide order dated 01.04.2015:-
1. Whether the defendant is owner of the suit property and thus, plaintiff has no locus standi to file the present suit? OPD
2. Whether the plaintiff has concealed material facts and if so, its consequences. OPD
3. Whether the defendant has become owner of the suit property by way of adverse possession? OPD
4. Whether the valuation of the suit for the purpose of court fee and jurisdiction is not correct? OPD
5. Whether the plaintiff has given wrong description and details of the suit property and has filed a false site plan? If so its consequences. OPD
6. Whether the suit is barred by limitation? OPD
7. Whether the plaintiff is entitled for a decree of possession as prayed for? OPP
8. Whether the plaintiff is entitled for the decree of partition as prayed for? OPP
9. Whether the plaintiff is entitled for recovery of damages, as claimed? OPP
10. Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? OPP
11. Whether the plaintiff is entitled for the decree of mandatory injunction as prayed for? OPP
12. Whether the plaintiff is entitled to the declaration as prayed for? OPP
13. Relief.
5. The plaintiff examined him as PW1, impleaded defendant no 2 Rustam Singh as PW2, Gopal Dutt, Baillif, Office of Sub Registrar, Seelam Pur, as PW3 and Asha Ram as PW4. The plaintiff as PW1 and impleaded defendant no 2 Rustam Singh tendered their respective affidavits which are Ex.PW1/A and Ex.PW2/A. The plaintiff as PW1 in affidavit Ex. PW1/A referred documents which are Ex. PW1/1 to Ex.PW1/3. PW3 produced document which is Ex. PW3/A. The plaintiff's evidence was ordered to be closed vide order dated 05.12.2016.
The defendant examined him as DW1, Mangan Pal Singh as DW2, Surender Kumar Sharma as DW3 and Vidhya Ram as DW4 who tendered their respective affidavits which are Ex.DW1/A to Ex.DW4/A. The defendant in evidence referred document which are Ex. DW1/2, Ex. DW1/3, Ex.DW1/5 and CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 5/31 Ex.DW1/8. The defendant's evidence was ordered to be closed vide order dated 09.04.2019.
6. Sh. J. P. Srivastava, Advocate for the plaintiff and Sh.S. L. Sagar, Advocate for the defendant heard. The counsels for the plaintiff and the defendant also filed written arguments. Record Perused.
The counsel for the plaintiff in written arguments stated that the plaintiff and the defendant no 2 purchased property measuring 50 sq. yards from Kiran Devi on 28.04.1988 vide documents Ex.DW1/2. The plaintiff resided in the suit property measuring 25 sq. yards but the defendant did not allow the plaintiff to enter in the suit property when the plaintiff came back from native village. The plaintiff is owner of the suit property measuring 25 sq. yards as shown in site plan Ex.PW1/1. The counsel for the defendant in written arguments stated that the defendant has proved that the defendant has purchased the property including suit property measuring 25 sq. yards although documents pertaining to property measuring 50 sq. yards were prepared in name of the plaintiff and the defendant no 2 and the plaintiff never resided therein. The defendant also relied on respective testimony of the DW2 Magan Pal Singh and DW3 Surender Kumar Sharma. The plaintiff also admitted that title documents Ex.DW1/2 were in possession of the defendant. The counsel for the defendant further mentioned that the plaintiff falsely stated that he resided in suit property and site plan Ex.PW1/1 is not correct as per spot which is also admitted by the plaintiff. The suit is not properly valued for purposes of court fee and jurisdiction besides other arguments. The written arguments submitted by the plaintiff and the defendant are considered.
ISSUEWISE FINDING ARE AS UNDER ISSUE NO 1 Whether the defendant is owner of the suit property and thus, plaintiff has no locus standi to file the present suit? OPD
7. The concept of ownership is one of the fundamental juristic concepts common to all systems of law. Ownership is a relation of a person to an object which is exclusive or absolute and ultimate. The person who stands in this relation is called CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 6/31 the 'owner' and he has a right of complete control and enjoyment of the object. Ownership is a right of dominium over the property. The idea of ownership followed the idea of possession. Ownership denotes the relationship between a person and any right that is vested in him. Ownership may be absolute or restricted. An owner of property may be absolute and nobody else may have any interest in property. There may be certain restrictions on the right of ownership imposed by either law or by voluntary agreement. Ownership of a person does not diminish with his death. He is entitled to leave his property to his property to his successors. Owner can distribute the property even in his own lifetime. Ownership can be derived from a previous owner such as acquired by inheritance or gift or purchase etc.
8. The plaintiff pleaded and deposed in affidavit Ex.PW1/A that the plaintiff and the defendant no 2 purchased built up property measuring 50 sq. yards i.e. 25 sq. yards each out of property measuring 100 sq. yards bearing no B-296, Gali No 1- A, K-Block, West Ghonda, Delhi-110053 from Kiran Devi on 28.04.1988 vide registered General Power of Attorney, Agreement to Sell and Affidavit Ex.PW1/3 and Receipt Ex.PW3/1. The plaintiff claimed ownership of the suit property measuring 25 sq. yards as shown in red color in site plan Ex.PW1/1. The defendant along with his uncle also purchased remaining portion of the property measuring 50 sq. yards from Kiran Devi. The plaintiff after purchase of the property started to reside in front portion while the defendant started to reside in back portion of the property. The defendant took possession of the suit property when the plaintiff had gone to his native village and claimed ownership of entire property measuring 100 sq. yards.
The defendant alleged and deposed in affidavit Ex.DW1/A that he is absolute owner in possession of entire property bearing no B-296, Gali No 1-A, K-Block, West Ghonda, Delhi-110053 measuring 115 sq. yards including the suit property and not 100 sq. yards as mentioned by the plaintiff, having purchased on execution of General Power of Attorney and other documents out of his funds and earnings but title documents were got executed in joint names of the plaintiff and the defendant no 2 without any intention to create title in their favor. The defendant after purchase of the property started to reside therein along with CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 7/31 family. The plaintiff never resided in the suit property.
9. The facts which are emerging from reading of respective pleadings and evidence of the plaintiff and the defendant are that Kiran Devi w/o Ghansham Singh was owner of the built up property measuring 115 sq. yards out of khasra no 570 situated at Ghonda Gujran Khadar, Shahdara measuring which is now known as B-296, Gali no 1-A, West Ghonda, Delhi-110053. Kiran Devi sold said property measuring 115 sq. yards in portions by executing two sets of title documents. The title documents in respect of portion measuring 65 sq. yards were executed in name of the defendant. The title documents Ex.DW1/2 and Ex.PW3/1 in respect of remaining portion measuring 50 sq. yards were executed on 28.04.1988 in joint names of the plaintiff and the defendant no 2. The plaintiff as such is claiming ownership in respect of suit property measuring 25 sq. yards out of property measuring 50 sq. yards while the defendant is alleging purchase and ownership of entire property measuring 115 sq. yards including suit property. The defendant no 2 did not claim and assert his right, title and interest in respect of property 25 sq. yards out of 50 sq. yards and preferred not to participate in trial of case although appeared as witness for the plaintiff.
10. The defendant although did not specifically pleaded that the plaintiff is benami owner of the suit property measuring 25 sq. yards but it is reflecting that as per defendant he is real owner of the suit property measuring 25 sq. yards while the plaintiff is benami owner of the suit property. In India benami transactions were not alien prior to enactment of the Benami Transactions (Prohibition) Act, 1988 which came into force on 19th May, 1988. In benami transactions a person buys a property with his own money in the name of another person without any intention to benefit such other person. In benami transactions the real title is divorced from the ostensible title and vested in different person. The 1988 Act was enacted with an aim to prohibit the benami transactions which is define as a transaction in which property is transferred to one person for a consideration paid or provided by another person. The 1988 Act further prohibits recovery of the property held benami from benamidar by the real owner and properties held benami were also liable for confiscation. Section 3 of 1988 Act prohibits benami transactions. Sub section (1) provides that no person shall enter into any benami transaction. Section 4 deals with prohibition of the right to recover property which is held benami. Sub CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 8/31 section (1) provides that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. Sub Section (2) provides that no defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.
11. The Supreme Court in various pronouncements considered burden to prove benami transaction and factors determinative of benami transactions. In Jaydayal Poddar V Bibi Hazra (Mst.), (1974) 1 SCC 3 it was observed and held by the Supreme Court that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner always rests on the person asserting it to be so. It is further observed that this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of the benami transaction or establish circumstances unerringly and reasonably raising an interference of that fact. It was observed as under:-
It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid tests, uniformly applicable in all situations, can be laid down; yet in weighing the CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 9/31 probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances:(1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.
In Thakur Bhim Singh V Thakur Kan Singh, (1980) 3 SCC 72 the Supreme Court observed and held as under:-
The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus: (1) the burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc. In Binapani Paul V Pratima Ghosh, (2007) 6 SCC 100 the Supreme Court after considering decision in Valliammal V Subramaniam, (2004) 7 SCC 233 observed and held that the source of money had never been the sole consideration. It is merely one of the relevant considerations but not determinative in character. In P. Leelavathi V Shankarnarayana Rao, (2019) 6 SCALE 112 the Supreme Court while considering whether a particular transaction is benami in nature, the following six circumstances can be taken as a guide:-
(1) the source from which the purchase money came (2) the nature and possession of the property, after the purchase (3) motive, if any, for giving the transaction a benami colour (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar (5) the custody of the title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 10/31 property after the sale.
In Mangathai Ammal (Died) Through LRs and Others V Rajeswari, Civil Appeal No 4805 OF 2019 decided on 09th May, 2019 the Supreme Court of India, the original plaintiffs instituted the suit before the Trial Court for partition of the suit properties by pleadings that the suit properties were ancestral properties and purchased in the name of defendant no.1 and the suit properties were in absolute possession and enjoyment of the Joint Family Property since the date of purchase. It was not specifically pleaded by the plaintiffs that the Sale Deeds/transactions in favor of defendant no.1 were benami transactions. It was also not pleaded that the suit properties were purchased in the name of defendant no.1 from the income derived out of the ancestral properties and the Trial Court did not specifically frame the issue that whether the transactions/Sale Deeds in favor of defendant no.1 are benami transactions or not. But the Trial Court and the High Court held that the transactions/sale deeds in favor of defendant no.1 were benami transactions. Issue before the Supreme Court was whether the transactions/sale deeds in favor of defendant no.1 can be said to be benami transactions or not. It was observed that the Trial Court and the High Court have erred in shifting the burden on the defendants to prove that the sale transactions were not benami transactions. It was observed that while considering a particular transaction as benami, the intention of the person who contributed the purchase money is determinative of the nature of transaction. The intention of the person, who contributed the purchase money, has to be decided on the basis of the surrounding circumstances; the relationship of the parties; the motives governing their action in bringing about the transaction and their subsequent conduct etc.
12. The burden was on the defendant to prove that he is real owner of the suit property measuring 25 sq. yards while the plaintiff is benamidar of the suit property measuring 25 sq. yards. The plaintiff is claiming ownership coupled with possession in respect of suit property measuring 25 sq. yards as shown in red color in site plan Ex.PW1/A. The defendant in contrast to said plea pleaded that the plaintiff at time of purchase of property measuring 115 sq. yards was studying in the native village and was without any income. The plaintiff also married in the native village and his children are also studying in native village. The plaintiff CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 11/31 never resided in the suit property as shown in red color in site plan Ex.PW1/.The plaintiff used to cast his vote in native village. The plaintiff is paying house tax in native village. The cross examination of the plaintiff is very important to determine whether the plaintiff had ever resided in suit property measuring 25 sq. yards as shown in site plan Ex.PW1/A. The plaintiff in cross examination deposed that he studied in Rajkiya Primary Pathshala, Balpura from 1 st to 5th class, in Adarsh Kissan Purv Madhyamik Vidyalaya, Giror, Mainpura from 6th to 8th class and in Dayanand Inter College, Giror, Mainpuri, UP from 9th to 10th class. The plaintiff in year 1988 i.e. when the property measuring 115 sq. yards was purchased was studying in 10th class. The ration card in name of the plaintiff was also issued from village address. The copy of ration card Mark B is without any address. The plaintiff also got married in native village and cast his vote in native village. The plaintiff also produced copy of voter list Mark A which reflects that name of the plaintiff is included in voter list pertaining to his native village. The plaintiff admitted that his name is not in voter list of Delhi but he cast his vote in Delhi and also produced copy of voter card Mark C which was issued at the address of suit property. The plaintiff admitted that his sons are studying in native village. The plaintiff admitted that electricity meter which is installed in the property including suit property is in name of the defendant. The house tax was also paid in the name of the defendant. The plaintiff never paid electricity bill at any time.
The plaintiff also examined the defendant no 2 as PW2 who in affidavit Ex.PW2/A deposed that he is co-owner of the property measuring 50 sq. yards in equal shares with the plaintiff which they purchased from Kiran Devi on execution of General Power of Attorney, Agreement to Sell, Affidavit and other documents. The plaintiff started to reside in suit property as shown in red color in site plan Ex.PW1/1. PW2 in cross examination deposed that all his children studied in village and ration card and voter card are issued at village address. PW2 never paid any electricity bill in respect of suit property. The plaintiff was residing in one room of the property.
13. The plaintiff and the defendant no 2 did not or could not produce any concrete document to prove that they or either of them ever resided in the suit property. Mere issuance of voter card Mark C in name of the plaintiff at the address of the CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 12/31 suit property does not necessarily reflect that the plaintiff was residing in the suit property from day of its purchase till his alleged dispossession by the defendant. The plaintiff in cross examination deposed that he was employed with Rumy Export, Sant Nagar, East of Kailash from 2005 to 2009 on daily basis but no document is produced by the plaintiff regarding his employment in Delhi. The cross examination of the plaintiff and the defendant no 2 reflect that they resided in their native village. There is no evidence which can prove that that the plaintiff has ever remained in possession of suit property measuring 25 sq. yards. The plaintiff might have stayed in one portion of the property for some time as appeared from testimony of PW3 Asha Ram but there is no evidence which can prove that the plaintiff stayed in suit property in his independent right since its purchase.
14. The defendant in cross examination deposed that the defendant no 2 got married in native village. The defendant denied suggestions that the plaintiff and the defendant no 2 resided with him or that the plaintiff paid Rs.40,000/- towards sale consideration or that he has not contributed towards sale consideration or that the plaintiff lived in suit property or the defendant has taken forcible possession of the suit property or that he obtained electricity connection only for property measuring 65 sq. yards. DW2 Mangal Pal Singh in affidavit Ex.DW2/A deposed that the defendant in year 1982 was residing as a tenant and the defendant purchased the entire property out of his funds and earnings vide General Power of Attorney and other documents. DW2 was not cross examined regarding stay of the plaintiff and the defendant no 2 in suit property or property measuring 50 sq. Yards. DW4 Vidhya Ram in affidavit Ex.DW4/A deposed that neither the plaintiff nor the defendant no 2 ever resided in the suit property. DW4 in cross examination denied that the plaintiff is having right or share in suit property. There is nothing in cross examination of the defendant or any other witness examined by the defendant which can reflect that the plaintiff has ever resided in the suit property or the defendant never remained in possession of the suit property. There is no iota of evidence which can prove that the plaintiff resided in suit property.
15. General Power of Attorney, Agreement to Sell and Receipt Ex. DW1/2(PW3 also produced copy of receipt which is Ex.PW3/1) perused. Perusal of General Power of Attorney and Agreement to Sell Ex.DW1/2 reflects that the plaintiff and CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 13/31 the defendant no 2 purchased 50 sq. yards from Kiran Devi w/o Ghansham Singh for a sale of consideration of Rs. 40,000/- on 28.04.1988. Receipt Ex. DW1/2(PW3/1) reflects that the plaintiff and the defendant no2 paid sale consideration of Rs. 40,000/- to Kiran Devi w/o Ghansham Singh in presence of DW3 Surender Kumar Sharma. The plaintiff did not mention in the pleadings that he and the defendant no 2 paid Rs.40,000/- as sale consideration to Kiran Devi w/o Ghansham out of his own funds and savings in presence of DW3 Surender Kumar Sharma. It was a material fact required to be mentioned in the pleadings by the plaintiff. In Maria Margarida Sequeria Fernandes V Erasmo Jack de Sequeria, (2012)5SCC370, the Supreme Court laid stress on purity of pleadings in civil cases. It was observed that pleadings are extremely important in civil cases and in order to do justice, it is necessary to give all details in the pleadings. This view was again reaffirmed in A. Shanmugam V Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (2012)6SCC430.
16. The defendant examined Surender Kumar Sharma as DW3 who was witness and instrumental in effecting sale purchase transaction pertaining to the property measuring 115 sq. yards between Kiran Devi and the defendant. DW3 in affidavit Ex.DW3/A deposed that property out of khasra no 570 situated at Ghonda Gujran Khadar, Shahdara measuring 115 sq. yards which is now known as B-296, Gali no 1-A, West Ghonda, Delhi-110053 was dealt by him and was purchased by the defendant for a sale consideration of Rs.85,000/- from Kiran Devi in his presence. General Power of Attorney and other documents pertaining to property 50 sq. yards including suit property measuring 25 sq. yards were prepared in names of the plaintiff and the defendants without any intention to create any title in their favor. The defendant is in uninterrupted and continuous possession of the property. DW3 in affidavit Ex. DW3/A referred Receipt Ex. DW1/3 which is perused. The perusal of Receipt Ex.DW1/3 reflects that the defendant paid Rs.6,000/- to DW3 Surender Kumar Sharma as earnest money to DW3 in respect of property measuring 115 sq. yards. DW3 in cross examination denied that Receipt Ex.DW3/1 is a forged and fabricated document. DW3 a material witness was not cross examined on issue that the plaintiff and the defendant no 2 actually purchased property measuring 50 sq. yards including suit property measuring 25 sq. yards from Kiran Devi particularly when the plaintiff as PW1 in cross CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 14/31 examination admitted that he knows DW3 Surender Kumar Sharma. DW3 was also not cross examined by the plaintiff that the plaintiff and the defendant no 2 paid Rs. 40,000/- to Kiran Devi as sale consideration of property measuring 50 sq. yards in presence of DW3 Surender Kumar Sharma vide Receipt Ex. DW1/3(Ex.PW3/1). The cross examination is not merely a technical rule of evidence but it is a rule of essential justice as it serves to prevent surprise at trial and miscarriage of justice. It was observed in A.E.G. Carapiet V A. Y. Derderian, AIR1961Cal.359 that whenever the opponent has declined to avail himself of the opportunity to put his essential and material case in the cross examination, it must follow that he believed that the testimony given, could not be disputed at all. The Supreme Court in M.B Ramesh V K.M Veeraje, 2013 (2) RCR Civil 932 held that wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is a rule of essential justice. The plaintiff as PW1 in cross examination further deposed that Agreement to Sell was executed in presence of Shyam Singh Chauhan, Magan Pal Singh (DW2) and others. The plaintiff did not examine said persons as witnesses to substantiate his claim or cross examine DW2 Magan Pal Singh regarding execution of title documents Ex.DW1/2. The plaintiff did not file any Bayana(earnest money) Receipt as it was in possession of the defendant. The documents including Receipt Ex.DW1/2 came from possession and custody of the defendant. The plaintiff in cross examination also admitted custody of documents Ex.DW1/2 by deposing that he saw title documents in year 1988 for first time and the title documents remained in custody of the defendant. The title documents were handed over to the defendant on day of execution. The plaintiff further deposed in cross examination deposed that he and the defendant were having good faith on each other and due to this there was no dispute between the plaintiff and the defendant. The plaintiff did not plead said facts either in pleading or in affidavit Ex.PW1/A. The plaintiff also did not cross examine the defendant on these facts. The defendant as DW1 in cross examination deposed that property measuring 115 sq. yards was purchased through two different title documents. The sale documents in respect of property measuring 65 sq. yards were executed in his whereas sale documents in respect of property measuring 50 sq. yards were CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 15/31 executed in name of the plaintiff. The defendant denied suggestions that the plaintiff paid Rs.40,000/- towards sale consideration or that the defendant has not contributed any amount towards purchase of property measuring 50 sq. yards or that the plaintiff lived in suit property measuring 25 sq. yards or the defendant has taken forcible possession of the suit property or that the defendant obtained electric connection only in respect of property measuring 65 sq. yards. There is nothing in cross examination of the defendant which can falsify defense of the defendant. The plaintiff did not lead evidence that at the time of purchase of the property measuring 115 sq. yards including property measuring 50 sq. yards, he and the defendant no 2 were earning and paid Rs.40,000/- to Kiran Devi as sale consideration vide Receipt Ex.DW1/2 or someone else on their behalf paid sale consideration. The plaintiff never claimed tittle documents Ex.DW1/2 from the defendant from 28.04.1988 till filing of present suit. The plaintiff also did not serve any notice on the defendant for claiming title documents Ex.DW1/2 from the defendant. Although the plaintiff in cross examination denied suggestions that the defendant purchased the property measuring 50 sq. yards in the name of the plaintiff and the defendant no 2 at instance of his father or that the defendant raised construction out of his own funds or that the plaintiff never resided in suit property. The onus was on the plaintiff to prove that he resided in the suit property but the plaintiff could not discharge said burden by leading appropriate evidence.
17. The plaintiff did not lead adequate and concrete evidence to prove that he ever resided in the suit property and dispossessed by the defendant. The plaintiff and the defendant no 2 are real younger brothers of the defendant. If the defendant purchased the property measuring 50 sq. yards including suit property measuring 25 sq. yards in joint names of the plaintiff and the defendant no 2 it did not create any substantial rights in favor of the plaintiff and the defendant no2 in respect of the property measuring 50 sq. yards. The entire sale consideration was paid by the defendant as reflected and proved from testimony of DW3 Surender Kumar Sharma. The defendant is in possession of entire property including suit property as shown in site plan Ex.PW1/1. The defendant is a bona fide purchaser of entire property measuring 115 sq. yards. There was no mala fide intention on the part of defendant in purchasing property measuring 50 sq. yards in joint names of the plaintiff and the defendant no 2 or the defendant has played fraud or CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 16/31 misrepresentation on anyone. The Act of 1988 came into force with effect from 19th May, 1988 while the defendant purchased the property measuring 115 sq. yards on 28.04.1988 i.e. before enforcement of the Act of 1988. The defendant strictly discharged burden of proving that sale of property measuring 50 sq. yards including suit property measuring 25 sq. yards vide documents Ex.DW1/2 was benami in the name of the plaintiff and the defendant no2 by adducing legal evidence of a definite character which directly proved benami transaction and established circumstances unerringly and reasonably raising an interference of benami transaction. It is proved that the defendant is real owner of property measuring 50 sq. yards including suit property measuring 25 sq. yards which is shown in red color in site plan Ex.PW1/1 while the plaintiff and the defendant no 2 are covered or benami owners. The plaintiff does not have locus standi to file present suit. Issue no 1 is decided in favor of the defendant and against the plaintiff.
ISSUE NO 2 Whether the plaintiff has concealed material facts and if so, its consequences. OPD
18. The defendant in preliminary objections alleged that the plaintiff has not come with clean hands as the plaintiff concealed true and material facts. The defendant is in possession of the property measuring 115 sq. yards being owner of said prop- erty. The suit is not maintainable and is liable to be dismissed. The Supreme Court of India in Arunima Baruah V Union of India & others, Appeal (civil) 2205 of 2007 decided on 27th April, 2007 considered how far and to what extent suppres- sion of fact by way of non- disclosure would affect a person's right of access to justice. The appellant filed a suit in the District Court but no order of ad-interim injunction was passed. The appellant filed a writ petition before the High Court without disclosing pendency of the said suit. The appellant before hearing of writ petition filed an application for withdrawal of the suit. The suit was allowed to be withdrawn after hearing of writ petition. The writ petition was dismissed by High Court due to concealment of fact by the petitioner and forum hunting. The appeal was also dismissed. It was observed as under:-
CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 17/31
(t)o enable the court to refuse to exercise its discretionary ju- risdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis be- tween the parties, the court may not refuse to exercise its dis- cretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the re- lief would still be denied is the question.
19. In present suit the plaintiff pleaded that the plaintiff along with his brother the defendant no2 is owner of the property measuring 50 sq. yards out of property measuring 115 sq. yards vide General Power of Attorney, Agreement to Sell and Receipt Ex.DW1/2 in equal shares which they purchased from Kiran Devi on 28.04.1988. The plaintiff also pleaded that he was in possession of suit property measuring 25 sq. yards as shown in red color in site plan Ex.PW1/1 and was dispossessed by the defendant when he went to his native village. The plaintiff as such disclosed all relevant material facts necessary for proper adjudication of the present suit. The plaintiff did not conceal material facts in present suit. The issue no.2 is decided in favor of the plaintiff and against the defendant.
ISSUE NO 3 Whether the defendant has become owner of the suit property by way of adverse possession? OPD
20. Adverse possession is a legal theory under which someone who is in possession of land owned by another can actually become the owner if certain requirements are met for a period of time defined in the statutes of that particular jurisdiction. Adverse possession requires that an occupation should be hostile, actual, open, exclusive and continuous for a specified period of time. The possession must be nec vi nec clam nec precario i.e. in continuity, in publicity and in extent. If a person fails to file suit for recovery of possession within a period of limitation, his right to recover the possession of that property also CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 18/31 extinguishes. This situation gives origin to the concept of adverse possession. In Karnataka Board of Wakf V GOI, (2004) 10 SCC 779 the Supreme Court observed that in the eye of law an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts rights over it and the person having title omits or neglects to take legal action against such person for years together. In Amrendra Pratap Singh V Tej Bahadur Prajapati, (2004) 10 SCC 65, it has been held that, the process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner.
21. The defendant pleaded and deposed in affidavit Ex. DW1/A that he is in possession of the property measuring 115 sq. yards without any hindrance, obstacle and objection from anyone and as such the defendant also became owner of suit property. DW2 Magan Pal Singh in affidavit Ex.DW2/A deposed that the defendant became owner of the property measuring 25 sq. yards by way of adverse possession. The plaintiff pleaded that he along with the defendant no 2 purchased the property measuring 50 sq. yards on documents Ex.DW1/2 in equal shares from Kiran Devi on 28.04.1988. The plaintiff also placed voter card Mark C issued from address of the suit property which is also admitted by the defendant. PW4 Asha Ram also deposed that the plaintiff was doing work of statue which he used to collect from suit property. It cannot be said that the possession of the suit property measuring 25 sq. yards as shown in red color in site plan Ex.PW1/1 is hostile to the exclusion of the plaintiff. The issue no.3 is decided in favor of the plaintiff and against the defendant.
ISSUE NO 4 Whether the valuation of the suit for the purpose of court fee and jurisdiction is not correct? OPD
22. Section 7(v) of the Court-fees Act, 1870 provides for court-fee in suits for the possession of land, houses and gardens and lays down that the value of such a suit would be according to value of the subject-matter. Clause (e) provides that the value of the subject-matter, when it is a house or garden, will be the market value CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 19/31 of the house or garden. The plaintiff in original plaint valued present suit for purposes of court fee and jurisdiction at Rs. 4,94,035/- besides valuation of suit for purposes of relief of declaration and permanent injunction. The defendant alleged that the plaintiff has not paid requisite court fee for relief of partition and as such suit is undervalued for purposes of court fee and jurisdiction, hence suit is liable to be dismissed. The plaintiff in cross examination deposed that he was not aware whether cost of land was Rs. 1,00,000/- per sq. yard at time of filing of suit. The defendant was not cross examined regarding valuation of the suit. The defendant did not lead appropriate evidence to prove that suit is not properly valued for purposes of court fee and jurisdiction. The plaintiff primarily seeking relief of possession and not of partition.The issue no.4 is decided in favor of the plaintiff and against the defendant.
ISSUE NO 5 Whether the plaintiff has given wrong description and details of the suit property and has filed a false site plan? If so its consequences.
OPD
23. The defendant in preliminary objections stated that site plan filed by the plaintiff is not correct and as suit is liable to be dismissed. The plaintiff has filed a false site plan. The plaintiff does not have knowledge about correct measurement of the suit property. The plaintiff is claiming relief in respect of the suit property as shown in red color in site plan Ex.PW1/1. Site plan Ex.PW1/1 perused. The plaintiff showed suit property in red color in site plan Ex.PW1/1. The plaintiff in cross examination deposed that he did not know from where site plan Ex.PW1/1 was got prepared. The plaintiff admitted existence of bathroom at point A and rooms at points B, C and D and open space in the property. The plaintiff admitted that site plan is not correct as all constructions r not shown in site plan Ex.PW1/1.
24. Order VII Rule 3 of the CPC requires that where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it to enables the court to draw a proper decree as required by Order XX Rule 3 of the CPC. Order VII Rule 3 is appearing to be mandatory in nature. The Andhra Pradesh High Court in M.C.V.Prasad & Others V M.Subba CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 20/31 Rao & Others, Second Appeal No.1184 of 2012 decided on 13th February, 2013 observed that the subject matter of suit must be clearly described particularly when subject matter of the dispute is immovable property. It is important for executability of a decree. It was further observed as under:-
The correct view appears to be that, if it is found in a suit that the plaintiff did not describe an item of immovable property, which is the subject-matter of the suit, as provided for under Rule 3 of Order VII C.P.C., he can be permitted to seek necessary amendment. At the same time, it is no part of the duty of the Court to remind the plaintiff, of his duty, to ensure that the property, regarding which he is claiming the relief, is properly described. If, in spite of the defect being noticed or detected or pointed out, the plaintiff fails to take any steps to cure the same, or the steps taken by him do not bring about compliance with the provision of law, the defect would certainly constitute a ground for denial of relief. Such an approach is not only warranted from the point of view of granting the relief in respect of an unknown property, but also would avoid the difficulty, at the stage of execution.
The Supreme Court in Pratibha Singh & another V Shanti Devi Prasad & another, (2003)2 SCC 330 observed that when the court record caused by overlooking of provisions contained in Order 7 Rule 3 and Order 20 Rule 3 CPC is capable of being cured.
The Supreme Court in Monoranjan Dutta V Narayan Dhar, 2006 (4) GLT160 observed that the failure to give a description of the suit property by giving boundaries etc. in the plaint is not fatal and can be cured at a later stage. The Supreme Court of India in Executive Officer, Arulmig Chokkanatha Swamy Koil Trust Virudhunagar V Chandran & Ors, Civil Appeal No.2342 of 2017 decided on laid emphasis on proper identification of immoveable property subject matter of suit. In present suit the plaintiff is seeking relief pertaining to suit property measuring 25 sq. yards and no relief is sought in respect of rest of the property out of 115 sq. yards. The suit property is clearly and properly identifiable in site plan Ex.PW1/1.The plaintiff has filed proper and correct site plan. If the plaintiff did not mention few supra structures existing on property measuring 115 sq. yards it does not have any negative impact on the present suit. Issue no.5 is decided in favor of the plaintiff and against CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 21/31 the defendant.
ISSUE NO 6 Whether the suit is barred by limitation? OPD
25. The defendant in preliminary objections stated that the plaintiff has not filed present suit within period of limitation. The plaintiff pleaded that the plaintiff and the defendant no 2 purchased built up property measuring 50 sq. yards i.e. 25 sq. yards each forming part of property bearing no B-296, Gali No 1-A, K-Block, West Ghonda, Delhi-110053 which they purchased from Kiran Devi on 28.04.1988 vide registered General Power of Attorney, Agreement to Sell, Affidavit and other documents.. The plaintiff as such is owner in possession of the suit property measuring 25 sq. yards as shown in red color in site plan Ex.PW1/1. The defendant is owner in possession of remaining portion of the property. The plaintiff had gone to his native village and came back on 17.08.2013 but the defendant did not allow him to enter into his property and claimed ownership of entire property measuring 100 sq. yards. The defendant is in illegal possession of suit property measuring 25 sq. yards which is owned by the plaintiff. The plaintiff primarily seeking relief of possession of the suit property measuring 25 sq. yards as shown in red color in site plan Ex.PW1/1.
26. Every suit shall be filed in a court within prescribed time. It is for general welfare that a period be put on litigation. Law protects only diligent and vigilant people and does not protect people who are careless about their rights. The Courts of Law cannot be approached beyond fixed period. The Law of Limitation prescribes the time-limit for different suits within, which an aggrieved person can approach the court for redress or justice. It prescribes time limit within which an existing right can be enforced in court. The Limitation Act, 1963 governs the time period within which a suit can be filed to sue another to get justice. If the suit is filed after the expiration of specified time period then it will be bared by limitation. The main objective of the Act is to provide a specific time frame within which a person can file a suit in a court. The Act is based upon public policy of fixing a life span of a legal remedy for the purpose of general welfare.
27. None is permitted to take forcible possession and taking of forcible possession CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 22/31 is illegal. The law respect possession. A person is not permitted to take a forcible possession and it must be obtained through Court. Under Section 5 of the Specific Relief Act, 1963 a suit for recovery of possession can be filed by a person who is entitled to the possession of the specific immovable property in the manner provided by the Code of Civil Procedure, 1908. Article 65 to Schedule I of the Limitation Act, 1963 prescribes a timeline of 12 years, within which an aggrieved person can file a suit for recovery of possession of immovable property or any interest therein based on proprietary title. If no suit is filed within the timeline of 12 years as provided under Article 65, the person extinguishes his right to file a suit for recovery of possession. It was obligatory on the part of the plaintiff to aver and plead that he not only has title over the property but also has been in possession of the same for a period of more than 12 years. The plaintiff claimed ownership on basis of title documents Ex.DW1/2. The plaintiff claimed his possession since 28.04.1988 and dispossession with effect from 17.08.2013. The present suit was filed on 23.08.2013. The suit is within period of limitation. Issue no 6 is decided in favor of the plaintiff and against the defendant.
ISSUE NO 7 Whether the plaintiff is entitled for a decree of possession as prayed for? OPP
28. Possession expresses the physical relation of control exercised by a person over a thing. Possession is protected as a part of the law of property. Possessory remedies are those which exist for the protection of possession. The Indian legislators have taken care of providing possessory remedies. Section 5 of the Specific Relief Act, 1963 deals with action for recovery of possession of specific immovable property based on title. The essence of this section is that whoever proves that he has a better title in a person is entitled to possession. The title may be on the basis of ownership or possession. The purpose of this section is to restrain a person from using force and to dispossess a person without his consent otherwise than in the due course of law.
29. The plaintiff pleaded ownership of suit property measuring 25 sq. yards out of 50 sq. yards which he along with the defendant no 2 purchased from Kiran Devi CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 23/31 on 28.04.1988 vide documents Ex.DW1/2. The plaintiff after purchase of the property started to reside in front portion but dispossessed by the defendant when he had gone to his native village. However as finding and judicial determination on issue no 1 the plaintiff is not entitled for relief of possession. Issue no 7 is decided in favor of the defendant and against the plaintiff.
ISSUE NO 8 Whether the plaintiff is entitled for the decree of partition as prayed for? OPP
30. The law offers a partition action which can be initiated to divide the joint property into individual shares among the owners so that individual co-owner can move forward with his share independently. The partition of property can be arranged on a voluntary basis if all owners agree to it. If the owners don't agree, an order passed on judicial principles can partition the property based on one owner's request. It is established on record that Kiran Devi was owner of the built up property measuring 115 sq. yards out of khasra no 570 situated at Ghonda Gujran Khadar, Shahdara which is now known as B-296, Gali no 1-A, West Ghonda, Delhi-110053. Kiran Devi sold portion of the property measuring 65 sq. yards to the defendant. The title documents in respect of remaining portion of the property measuring 50 sq. yards were executed on 28.04.1988 in joint names of the plaintiff and the defendant no 2. The plaintiff as such is claiming ownership in respect of suit property measuring 25 sq. yards out of property measuring 50 sq. yards. The property measuring 115 sq. yards was not a joint property of the plaintiff, the defendant and the defendant no2. The plaintiff and the defendant have claimed their independent rights on basis of sale documents in respect of different portions of the property measuring 115 sq. yards. The property measuring 115 sq. yards is not subject of partition. The plaintiff is not entitled for decree of partition. Issue no 8 is decided in favor of the defendant and against the plaintiff.
ISSUE NO 9
Whether the plaintiff is entitled for recovery of
damages, as claimed? OPP
CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 24/31
31. Order XX Rule12 of the Code of Civil Procedure, 1908 deals with decree of possession and mesne profit. It reads as under:-
Decree for possession and mesne profits.- (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree-
(a) for the possession of the property;
(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent;
(ba) for the mesne profits or directing an inquiry as to mesne profits;
(c) directing an inquiry as to rent or mesne profits from the institution of the suit until-
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgment-
debtor with notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever event first occurs.
(2) Where an inquiry is directed under clause (b) or clause
(c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.
32. The plaintiff pleaded and deposed in affidavit Ex.PW1/A deposed that the plaintiff is suffering with loss and is entitled for mesne profit @ Rs. 5,000/- per month for illegal, unauthorized use and occupation of the suit property measuring 25 sq. yards by the defendant. The plaintiff prayed that a decree of mesne profits and damages in favor of the plaintiff and against the defendant be passed directing the defendant to pay Rs. 5,000/- p.m. as well as other charges as damages to the plaintiff from date of filing this suit till realization. The plaintiff in cross examination deposed that one room located in given area can fetch minimum rent of Rs.1,000/- or Rs.1,500/- or Rs. 2,000/- per month. The defendant has denied said facts. The defendant was not cross examined regarding payment of damages. The plaintiff could not prove that he is real owner of the suit property measuring 25 sq. yards in his independent right. It is only proved that title documents Ex. DW1/2 in respect of property 50 sq. yards including suit property measuring 25 sq. yards were executed in name of the plaintiff and the defendant no 2. The plaintiff is not entitled for damages/mesne profit as prayed for. Issue no 9 is decided in favor of the defendant and against the plaintiff.
CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 25/31 ISSUE NO 10 Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? OPP
33. Section 37(2) of the Specific Relief Act, 1963 lays down that a permanent injunction can only be granted by a decree at the hearing and upon the merits of the case. In simple words, for obtaining a permanent injunction, a regular suit is to be filed in which the right claimed is examined upon merits and finally, the injunction is granted by means of judgment. A permanent injunction therefore finally decides the rights of a person whereas a temporary injunction does not do so. A permanent injunction completely forbids the defendant to assert a right which would be contrary to the rights of the plaintiff specifies certain circumstances under which permanent injunction may be granted. Section 38 reads as under:-
38. Perpetual injunction when granted.--
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:
--
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
34. In Balkrishna Dattatraya Galande V Balkrishna Rambharose Gupta, 1509 OF 2019 decided on 06th February, 2019 the Supreme Court observed and held that for seeking relief under Section 38 of the Specific Relief Act, the Plaintiff filing such a suit has to prove that he is in actual possession as on the date of the suit for seeking permanent injunction. The possession of the plaintiff cannot be CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 26/31 based upon the inferences; drawn from circumstances. The plaintiff has to prove actual possession for grant of permanent injunction. It was observed that:-
The party seeking injunction based on the averment that he is in possession of the property and seeking assistance of the Court while praying for permanent injunction restraining other party who is alleged to be disturbing the possession of the plaintiff, must show his lawful possession of the property.
As discussed earlier, in a suit filed under Section 38 of the Specific Relief Act, possession on the date of suit is a must for grant of permanent injunction. When the first respondent-plaintiff has failed to prove that he was in actual possession of the property on the date of the suit, he is not entitled for the decree for permanent injunction.
35. The plaintiff pleaded and deposed in affidavit Ex.PW1/A that he along with the defendant no 2 are owners of the built up property measuring 50 sq. yards i.e. 25 sq. yards each out of property bearing no B-296, Gali No 1-A, K-Block, West Ghonda, Delhi-110053 which the plaintiff and the defendant no 2 had purchased from Kiran Devi on 28.04.1988 vide registered General Power of Attorney, Agreement to Sell, Affidavit and other documents Ex.DW1/2. The plaintiff claimed ownership of the suit property measuring 25 sq. yards as shown in red color in site plan. The plaintiff after purchase of the suit property started to reside therein. The plaintiff went to his native village and came back on 17.08.2013 but the defendant did not allow him to enter into suit property. The defendant is in illegal possession of suit property. The defendant is intending to create third party interest in respect of the suit property. The plaintiff prayed that a decree of permanent injunction be passed in favor of the plaintiff and against the defendant for restraining the defendant and his associates, family members, employees, servants, attorneys etc. permanently from selling, gifting, alienating, mortgaging and transferring, sub-letting or parting with the possession in any manner of the suit property as shown in the site plan Ex.PW1/1 in any manner to any third party. The plaintiff could not prove that he was ever in possession of the suit property or he is real owner of the suit property. The defendant proved him as owner of the property measuring 115 sq. yards including suit property measuring 25 sq. yards. The plaintiff is not entitled for decree of permanent injunction as prayed for. Issue no 10 is decided in favor of the defendant and against the defendant.
CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 27/31 ISSUE NO 11 Whether the plaintiff is entitled for the decree of mandatory injunction as prayed for? OPP
36. Section 39 of the Specific Relief Act, 1963 deals with mandatory injunction. Section 39 reads as under:-
39. Mandatory injunctions.--When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.
The purpose of mandatory injunction is to restore a wrongful state of things to their former rightful order. What acts are necessary to prevent a breach of the obligation and the requisite acts must be such as the court is capable of enforcing are two elements which have to be considered to determine the grant of mandatory injunction. Mandatory injunction is an order requiring the defendant to do some positive act for the purpose of putting an end to a wrongful state of things created by him or otherwise in fulfillment of his legal obligation.
37. The plaintiff prayed that a decree of mandatory injunction be passes in favor of the plaintiff and against the defendant whereby directing the defendant to handover the original document i.e. GPA, Agreement to Sell, Receipt and Will all dated 28.04.1988 Ex.DW1/2 pertaining to suit property executed by Kiran Devi in favor of the plaintiff back to the plaintiff. It is proved that Kiran Devi was owner of the property measuring 115 sq. yards bearing no B-296, Gali No 1-A, K-Block, West Ghonda, Delhi-110053. The title documents Ex.DW1/2 in respect of property measuring 50 sq. yards out of property measuring 115 sq. yards were executed in joint names of the plaintiff and the defendant no 2 which remained in possession of the defendant from date of execution. The plaintiff is claiming ownership in respect of suit property measuring 25 sq. yards. The plaintiff could not prove that he is real owner of the suit property. The documents Ex.DW1/2 came from possession of the defendant. The plaintiff is not entitled for return of documents Ex.DW1/2 and as such decree of mandatory injunction cannot be passed in favor of the plaintiff. Issue no 11 is decided in favor of the defendant CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 28/31 and against the defendant.
ISSUE NO 12
Whether the plaintiff is entitled to the
declaration as prayed for? OPP
38. Section 34 of Specific Relief Act, 1963 deals with relief of declaration. It reads as under:-:
Section 34.-- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Section 34 provides that a suit against any person denying or interested to deny the plaintiffs' title to the legal character or right to any property can be filed. To obtain the relief of declaration the plaintiff must establish that (1) the plaintiff was at the time of the suit entitled to any legal character or any right to any property (ii) the defendant had denied or was interested in denying the character or the title of the plaintiff, (iii) the declaration asked for was a declaration that the plaintiff was entitled to a legal character or to a right to property (iv) the plaintiff was not in a position to claim a further relief than a bare declaration of his title. It is a discretionary relief.
39. The plaintiff is seeking a decree of declaration against the defendant for declaring the title documents pertaining to the property i.e. B-296, Gali No 1A, K- Block, West Ghonda, Delhi-110053 as forged and fabricated, null and void and non- binding on the plaintiff. It is apparent that Kiran Devi was owner of the built up property measuring 115 sq. yards out of khasra no 570 situated at Ghonda Gujran Khadar, Shahdara measuring 115 sq. yards which is now known as B-296, Gali no 1-A, West Ghonda, Delhi-110053. Kiran Devi sold said property measuring 115 sq. yards on execution of two sets of title documents. The title documents in respect of portion of the property measuring 65 sq. yards were executed in name of the defendant which is not disputed between the parties to CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 29/31 suit although said documents were not produced on record. The title documents Ex.DW1/2 in respect of remaining portion of the property measuring 50 sq. yards were executed on 28.04.1988 in joint names of the plaintiff and the defendant no
2. The plaintiff is claiming ownership in respect of suit property measuring 25 sq. yards out of property measuring 50 sq. yards. It is proved that the defendant is real owner of entire property measuring 115 sq. yards including portion of property measuring 50 sq. yards which also includes suit property measuring 25 sq. yards although documents Ex.DW1/2 were executed in joint names of the plaintiff and the defendant no 2. The plaintiff could not prove his independent right and interest in suit property measuring 25 sq. yards as shown in site plan Ex.PW1/1. The plaintiff is not entitled for declaration as prayed for. Issue no 12 is decided in favor of the defendant and against the defendant.
ISSUE NO 13 Relief
40. The entire journey of the judicial process is to find the truth from the pleadings, documents and evidence of the parties. Truth is the basis of the justice. The Supreme Court in Dalip Singh V State of UP, (2010)2SCC114 observed that truth constituted an integral part of the justice delivery system. In Maria Margarida Sequeria Fernandes it was observed that the truth should be guiding star in the entire judicial process. Truth alone has to be the foundation of justice. This view was reiterated in A. Shanmugam V Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (2012)6SCC430.
41. A burden of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims against the defendant and is based on preponderance of the probabilities. Under Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another, VI(2003)SLT307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 30/31 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues. This view was also accepted in M/S. Gian Chand & Brothers and Another V Rattan Lal @ Rattan Singh, (2013) SCR 601.
42. The plaintiff could not prove that he is real owner of the suit property measuring 25 sq. yards bearing no B-296, Gali no 1-A, West Ghonda, Delhi- 110053. In view of findings on issue no.1 and 7 to 12 the suit of the plaintiff is dismissed. The plaintiff and the defendant to bear their own costs of litigation. Decree-sheet be prepared accordingly. File be consigned to record room.
ANNOUNCED IN THE COURT ON 23.05. 2020 (DR. SUDHIR KUMAR JAIN) DISTRICT AND SESSIONS JUDGE (NORTH-EAST) KARKARDOOMA COURTS, DELHI CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 31/31 CS 476261/15 MANAK CHAND V RAM AVTAT & ANOTHER 32/31