Delhi District Court
Smt. Bimla W/O Sh. Gian Chand vs Sh. Anil Kumar Arora on 21 December, 2011
IN THE COURT OF SH. SAURABH KULSHRESHTHA:
CCJ:ARC(EAST):KARKARDOOMA COURTS: DELHI
Civil Suit no: 673/07
ID No:02402C0489782004
Smt. Bimla W/o Sh. Gian Chand
R/o Village Saboli,
Nand Nagari, Delhi. .... Plaintiff
Versus
Sh. Anil Kumar Arora
S/o Sh. Madan Lal Arora
R/o 282, Vivek Vihar, Delhi. .... Defendant
SUIT FOR RECOVERY OF POSSESSION UNDER SECTION 6
OF THE SPECIFIC RELIEF ACT, DAMAGES, MANDATORY
AND PERMANENT INJUNCTION
Date of institution of the Suit : 21.08.2003
Date on which judgment was reserved : 23.11.2011
Date of decision : 21.12.2011
Decision : Suit Dismissed
JUDGMENT
1. This is a suit for recovery of possession under section 6 of the Specific Relief Act, recovery of damages/ mesne profits and mandatory and permanent injunctions.
2. The version of the plaintiff is that she was earlier in possession of the property measuring 1 bigha and 1 biswa out of Khasra no.1, Village Saboli, Nand Nagari, Delhi (hereinafter referred to as the CS no:673/07 Page No: 1/34 suit property) in capacity of its owner and she was wrongfully dispossessed by the defendant from the same.
3. It is the case of the plaintiff the land bearing khasra no.1, Village Saboli, Nand Nagari, Delhi consists of an area measuring 3 bighas and 3 biswas and was owned by three brothers, namely Sh. Inder, Sh. Risal and Sh. Puran. After death of Sh. Inder, a family settlement took place between Sh. Risal, Sh. Puran and the children of Sh. Inder. By virtue of this family settlement, Smt. Ramwati became the owner of a portion of land 1 bigha and 1 biswa out of khasra no.1, Village Saboli, Nand Nagari, Delhi.
4. It is further the case of the plaintiff that Smt. Ramwati sold this property measuing 1 bigha and 1 biswa to the plaintiff for a consideration of Rs.4700/- vide Agreement to Sell, General Power of Attorney etc. dated 22.09.1980. The possession of the suit property was also handed over to the plaintiff at the time of execution of the documents.
5. It is further the case of the plaintiff that Sh. Risal Singh CS no:673/07 Page No: 2/34 tried to interfere with the possession of the plaintiff in the suit property and proceedings under section 145 Cr.P.C. were initiated and Sh. Risal Singh was restrained from taking possession of the suit property by the concerned SDM.
6. It is further the case of the plaintiff that the present defendant by forging and fabricating documents namely Agreement to Sell and General Power of Attorney with one Sh. Ram Karan had filed a false and frivolous suit against the present plaintiff alleging that he is the owner of the suit property and in possession of the suit property. In the said suit Sh. Sandip Yadav, the then Ld. Civil Judge passed an interim injunction restraining the present plaintiff from taking possession of the suit property, although the present plaintiff was actually in possession of the suit property and had constructed a superstructure of two rooms, kitchen, latrine, bathroom over the suit property.
7. Thereafter the present plaintiff preferred an appeal and Sh. O.P. Saini, Ld. Senior Civil Judge, Delhi allowed the appeal holding that the present plaintiff is the owner of the property and is in possession of the same.
CS no:673/07 Page No: 3/34
8. Thereafter the present defendant in the said previous suit preferred a Civil Revision Petition bearing No. 627/03 before the Hon'ble High Court of Delhi and the Hon'ble High Court of Delhi ordered the parties to maintain status quo.
9. The grievance of the plaintiff is that the present defendant after passing of the said order by the Hon'ble High Court regarding maintenance of status quo had wrongfully and illegally taken over the possession of the suit property on 01.06.03 after dispossessing the plaintiff and has illegally raised unauthorized construction over a portion of the suit property which is shown in red colour in the site plan.
10. It is further the case of the plaintiff that the plaintiff is in possession of two rooms, one kitchen, one latrine, bath room and open space in the property.
11. The plaintiff has contended that the action of the defendant in dispossessing the plaintiff from the portion of the property measuring 1 bigha and 1 biswa was illegal and unjustified. The plaintiff has CS no:673/07 Page No: 4/34 contended that the defendant is now illegally threatening to part with the possession of the suit property to some other person and to create third party interests in respect of the same and has also raised unauthorized construction over the same.
12. The plaintiff has claimed a decree of recovery of possession in respect of the portion of the suit property as shown in red colour in the site plan. The plaintiff has further claimed a decree for recovery of an amount of Rs.10,000/- towards mesne profits/ damages @ Rs.5000/- per month alongwith interest @ 18% per annum. The plaintiff has further prayed for a mandatory injunction directing the defendants to demolish the premises shown in the red colour in the site plan which has been wrongly and illegally encroached upon by the defendant. The plaintiff has further prayed for a permanent injunction restraining the defendant from creating any third party interest in the suit property.
13. The defendant appeared pursuant to service of summons and filed his written statement. The defendant contended that the suit has not been properly valued for the purpose of court fees and CS no:673/07 Page No: 5/34 jurisdiction. He has stated that the market value of the suit property is not less than Rs.3 lacs. The defendant further pleaded that plaintiff has not filed the exact revenue record or the record of settlement so as to identify the suit property by boundaries or by number and the land is not identifiable. The plaintiff further claimed that the suit is bad for misjoinder of causes of action and is not maintainable under Section 6 of the Specific Relief Act.
14. The defendant further pleaded that the defendant is in possession of the land measuring 1 bigha and 1 biswa in which two rooms and a boundary wall have been constructed with an iron gate. He has further pleaded that the defendant is the owner and in possession of the suit property since 23.06.1999 having purchased the same from its erstwhile owner Sh. Ram Karan vide various documents such as Agreement to Sell, GPA, Will etc. The defendant took possession of the same after making the payment of the sale consideration to Sh. Ram Karan.
15. The defendant further pleaded that the present plaintiff alongwith her father gave threats to the defendant on 13.02.2000 and CS no:673/07 Page No: 6/34 interfered in the construction work undertaken by the defendant in his property and thereafter a suit was filed in which the present plaintiff was restrained from interfering in the construction work. In the said suit the Local Commissioner also found that the defendant is in possession of the property.
16. The defendant denied the alleged family settlement by which Smt. Ramwati became the owner of the suit property as alleged by the plaintiff. The defendant further denied that Smt. Ramwati sold the suit property to the plaintiff in the year 1980. The defendant further stated that it is not clear from the plaint as to which portion measuring 1 bigha 1 biswa out of the area 3 bighas 3 biswas belonged to Smt. Ramwati. The defendant further stated that Sh. Risal Singh was having his separate land measuring 1 bigha and 1 biswa and the plaintiff has got confused between the land of Sh. Risal Singh and Smt. Ramwati. The defendant denied that there were any proceedings u/s 145 Cr.P.C. In respect of the land in possession of the defendant.
17. The defendant admitted that a suit was filed before the court of Sh. Sandeep Yadav, Ld. Civil Judge. The defendant admitted CS no:673/07 Page No: 7/34 the orders passed by respective courts in the said suit.
18. The defendant however denied that he had taken forcible possession of suit property from the plaintiff or that as he has raised any unauthorized constructions thereupon. The defendant further stated that the plaintiff has no concern with the property of the defendant measuring 1 bigha and 1 biswa where two rooms, boundary wall and an iron gate has been constructed and the defendant is in actual physical possession.
19. The defendant denied that the plaintiff is entitled to recover possession or damages. He further denied that the plaintiff is entitled to any injunction. He prayed for dismissal of the suit.
20. Plaintiff filed replication and denied the averments of the written statement of the defendant and simultaneously reiterated and reaffirmed the contents of the plaint.
21. The plaintiff further stated that the property has been identified by the plaintiff in the site plan which has been filed on record and the parties are fully aware of the identity of the property. The CS no:673/07 Page No: 8/34 plaintiff denied that the land cannot be identified. The plaintiff denied that the property was purchased by the defendant and he is the owner and in possession of the same since 23.06.1999. The plaintiff reiterated that the defendant has taken illegal possession of the suit property. The plaintiff reiterated that the property which was sold to the plaintiff belonged to Smt. Ramwati and the same is now illegally occupied by the defendant. The plaintiff stated that the defendant does not own any property and he has illegally occupied the property of the plaintiff. The plaintiff prayed that the suit be decreed in her favour.
22. Vide order dated 19.02.2004, on the basis of the pleadings of the parties the following issues were framed in this case:
1. Whether the suit is bad for misjoinder and non joinder of parties? OPD
2. Whether the suit is barred under Section 6 of the Specific Relief Act? OPD
3. Whether the suit is properly valued for the purpose of Court fees & for adjudication? OPD
4. Whether the suit is liable to be stayed under Section 10 of CPC? OPD
5. Whether the plaintiff is entitled for a decree of possession? OPP
6. Whether the plaintiff is entitled for a decree of recovery of Rs.
10,000/- alongwith mense profit @ Rs.5000/- per month, if so, CS no:673/07 Page No: 9/34 from which date and for what period? OPP
7. Whether the plaintiff is entitled for a decree of mandatory injunction? OPP
8. Whether the plaintiff is entitled for a decree of permanent injunction? OPP
9. Whether the plaintiff is entitled for any interest for the damages, if so upto what amount and for what period? OPP
10. Relief
23. In order to prove its case the plaintiff examined herself as PW-1 and deposed on the lines of the plaint. As against this the defendant examined himself as DW-1 and deposed on the lines of the written statement. The defendant further examined Sh. Karamvir, a resident of the same village and acquainted with the parties as DW-2. DW 2 supported the version of the defendant.
24. I have heard the Learned Counsel for the parties and have given due consideration to the rival contentions and carefully perused the record. My issue-wise findings are as follows:
Issue no.1
25. The question to be answered is as to whether the suit is bad CS no:673/07 Page No: 10/34 for misjoinder and non joinder of parties. The suit has been framed by the plaintiff under section 6 of the Specific Relief Act. The plaintiff claims that she is the owner of the suit property and was earlier in possession of the same and she was illegally dispossessed by the defendant from the suit property on 01.06.2003. The plaintiff therefore seeks to recover possession in terms of Section 6 of the Specific Relief Act.
26. In these facts and circumstances no other parties are required to be joined in the present suit nor it can be said that the defendant is not a necessary party to the present suit. The defendant has not been able to establish as to how the suit is bad for non joinder of any necessary party.
27. I therefore hold that the defendant has failed to establish that the suit is bad for misjoinder and non joinder of parties.
28. This issue is therefore decided in favour of the defendant and against the plaintiff.
CS no:673/07 Page No: 11/34 Issues no. 6,7,8 & 9
29. The plaintiff has claimed mesne profits along with interest as well as permanent and mandatory injunctions.
30. However the suit as framed by the plaintiff is primarily and essentially a suit under section 6 of the Specific Relief Act. The plaintiff has also pressed for the relief for recovery of possession under section 6 of the Specific relief Act during the course of arguments. It is trite that in such a suit no other cause of action can be joined. Section 6 of the Specific Relief Act is a special summary remedy and it does not provide for joining of other causes of action or reliefs.
31. Moreover no appeal lies against the judgment/ decree in a suit under Section 6 of Specific Relief Act whereas an appeal lies against a decree for recovery of mesne profits/ damages and permanent and mandatory injunction. Therefore the relief of recovery of damages/ mesne profits and permanent and mandatory injunctions cannot be combined with the prayer for recovery of possession under Section 6 of the Specific Relief Act.
CS no:673/07 Page No: 12/34
32. Counsel for the plaintiff has placed reliance on the judgment titled as M/s. Btliboi & Co. Ltd. Vs. N.K. Verma reported as 49 (1993) Delhi Law Times 310 to contend that other reliefs can also be granted in a suit for recovery of possession under Section 6 of the Specific Relief Act. I do not find any such proposition being laid down in the said judgment. The said judgment is nothing but an order passed prior to framing of issues where an ad interim injunction was granted restraining the defendant therein from transferring, alienating or parting with the possession or from creating any third party interest in the suit property till the final disposal of the suit. There is no dispute that such an interim injunction can be granted in a suit under Section 6 of the Specific Relief Act by virtue of the provisions of Order 39 Rules 1 and 2 CPC. However it has no where been laid down in the said judgment that the final relief of permanent/mandatory injunction or recovery of damages/mesne profits with interest can be granted in a suit under Section 6 of the Specific Relief Act. The said judgment is therfore not applicable to the facts and circumstances of the present case.
33. In this context reference can be made to judgment titled as CS no:673/07 Page No: 13/34 Amar Singh v. Ghanshyam reported as AIR 1998 RAJASTHAN 333 wherein it was held:
" ..........14. Thus the consistent view of different High Court is that a claim for mesne profits cannot be made in a suit under Section 6 of the Specific Relief Act for recovery of possession. It is also clear that if such claim is included in the decree by the trial Court the entire decree cannot be thrown out but the mesne profits' part of the decree can be set aside confirming the possession part of the decree. The view is based on sound principles. After all, remedy under Section 6 of the Specific Relief Act, 1963 is a special remedy providing speedy relief to a person who is thrown out of possession except by following due process of law. It is an exception to general law which requires the plaintiff to prove his right to the property before decreeing possession in his favour. Such a provision has to be construed strictly and not liberally. When the provision does not speak of any other relief than recovery of possession, other reliefs cannot be read into the language. Moreover, mesne profits cannot be said to be claimable as a consequential relief in every case brought under Section 6 of the Specific Relief Act. As pointed out in some of the rulings cited above, since the claim is based on dispossession otherwise than in due course of law, title of the plaintiff to continue in possession CS no:673/07 Page No: 14/34 is not to be looked into and without looking into it mesne profits cannot be decreed, it is only natural that mesne profits cannot be granted in such an action......."
34. I am therefore of the opinion that the relief of recovery of damages/mesne profits with interest and permanent and mandatory injunctions cannot be granted in a suit for recovery of possession under Section 6 of Specific Relief Act. The plaintiff is therefore not entitled to any damages/mesne profits with interest and permanent and mandatory injunctions as claimed.
35. These issues are therefore decided in favour of the defendant and against the plaintiff.
Issue no.4
36. An issue was framed that whether the suit is liable to be stayed under Section 10 of CPC.
37. It has not been established by the defendant that in the present suit the entire subject matter in controversy is directly and CS no:673/07 Page No: 15/34 substantially in issue in a previous suit also which was filed by the present defendant for permanent injunction. The present suit is a suit under section 6 of the Specific Relief Act and is distinctly different from the previous suit. The cause of action and relief claimed are different.
38. In the judgment titled "National Institute of M. H. and N. S. v. C. Parameshwara" reported as AIR 2005 SUPREME COURT 242 the Hon'ble Supreme Court held:
" .....Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. The key words in section 10 are "the matter in issue is directly and substantially in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contra-distinction to the words "incidentally or collaterally in issue".
Therefore, section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of subject matter in both the proceedings is identical....."
39. Further more Section 10 CPC bars only the trial of the suit. Parties have already led evidence and trial has been completed and now the matter is fixed for judgment only therefore at this stage no question CS no:673/07 Page No: 16/34 of stay of proceedings under Section 10 CPC arises. Hence the present suit is not liable to be stayed under section 10 CPC.
40. Therefore this issue is decided in favour of the plaintiff and against the defendant.
Issue no. 3
41. The question to be answered is as to whether the suit has not been properly valued for the purpose of court fees and jurisdiction.
42. This is a suit for recovery of possession under Section 6 of the Specific Relief Act. The plaintiff has valued the suit for the relief of possession at an amount of Rs.1 lac. It is trite that a suit for recovery of possession is to be valued in terms of Section 7(v)(e) of the Court Fees Act on the market value of the suit property as there is a constructed superstructure thereupon. Counsel for the plaintiff has argued that the market value of the suit property on the date of institution of the suit was Rs. One lac.
43. However, the defendant has averred in the written CS no:673/07 Page No: 17/34 statement that the market value of the suit property was not less than Rs. 3 lacs. The defendant has contended that he had purchased the suit property on 23.06.1999 and the sale consideration has been mentioned as Rs. 1,75,000/- and therefore the value of the suit property on the date of institution of the suit i.e. in November 2003 could not have been less than Rs. 1.75 lacs.
44. However despite the fact that this objection was categorically taken by the defendant in his written statement no evidence was led by the plaintiff to establish as to what was the value of the suit property on the date of institution of the suit. Nothing was proved on record to show that on what basis the plaintiff has calculated the value of the suit property on the date of institution of the suit as Rs. One lac.
45. I am of the opinion that there is no basis for valuing the suit property at Rs.1 lac. On the contrary DW-1 categorically stated that he had purchased the suit property for Rs.1,75,000/- on 23.06.1999. DW-1 reiterated this fact in his cross examination. There is nothing in the evidence of the parties which shows that the value of the suit property was Rs. 1 lac on the date of institution of suit. Considering the CS no:673/07 Page No: 18/34 material on record I am of the opinion that the value of the suit property in November 2003 could not have been Rs. 1.75 lacs and the plaintiff has undervalued the suit.
46. The suit has therefore not been properly valued for the purpose of court fees and jurisdiction.
47. This issue is therefore decided in favour of the defendant and against the plaintiff.
Issues no. 2 and 5
48. The prime question to be answered is as to whether the plaintiff is entitled to recover possession of the suit property in terms of section 6 of the Specific Relief Act.
49. PW-1 has deposed on the lines of the plaint. PW-1 has deposed that she had purchased the suit property measuring 1 bigha and 1 biswa out of khasra no.1 Village Saboli, Nand Nagari from Smt. Ramwati in the year 1980 for a sale consideration of an amount of Rs. 4700/- vide a set of title documents namely Agreement to sell, GPA and CS no:673/07 Page No: 19/34 receipt. The GPA is Ex. PW-1/1, the agreement to sell is Ex. PW-1/2 and the receipt is Ex. PW-1/3. She further deposed that possession of the suit property was also handed over to the plaintiff in the year 1980.
50. As against this DW-1 has deposed that he had purchased a plot of land measuring 1050 sq yds out of khasra no.1 (1-1) Village Saboli, Delhi from Sh. Ram Karan S/o Sh. Gian Singh on 23.06.1999 and he had also acquired the possession of the same since the date of its purchase. The sale documents are Ex. DW-1/1 to Ex. DW-1/3.
51. However, since this is a suit under Section 6 of the Specific Relief Act, the question of title is immaterial for the decision of the present suit. This court is therefore not required to return any findings on the question of title being raised by the plaintiff and defendant.
52. Section 6 provides a summary remedy for recovery of possession by a person who has been illegally dispossessed. In a suit under Section 6 of the Specific Relief Act, the plaintiff is only supposed to prove the fact that she was in possession of the suit property, the fact CS no:673/07 Page No: 20/34 that she was wrongly dispossessed from the suit property by the defendant within a period of 6 months prior to the date of institution of the suit. The date of dispossession is extremely important.
53. In the judgment titled as Atmaram v. Prabhawatibai reported as AIR 1971 BOMBAY 148 it was held:
" .........The only question for determination in a suit under Section 6 is whether the plaintiff was in possession within six months prior to the date of the suit and whether the plaintiff has been dispossessed otherwise than in due course of law......"
54. At the outset it is pertinent to note that the plaintiff has not properly described the suit property sufficient for its identification. The plaintiff has stated that she has purchased the suit property measuring 1 bigha and 1 biswa which forms part of Khasra no.1, Village Saboli, Nand Nagari, Delhi. It is discernible from the record that khasra no. 1 has an area of 3 bighas and 3 biswas. The plaintiff claims that she had purchased 1 bigha and 1 biswa out of the same. Which portion measuring 1 bigha and 1 biswa out of the entire khasra was purchased by the plaintiff is not clear. The title documents of the plaintiff also do not CS no:673/07 Page No: 21/34 contain any such description of the said 1 bigha and 1 biswa of land sufficient to identify the same. The site plan filed by the plaintiff is not sufficient to identify the area of 1 bigha and 1 biswah. It has not been stated either in the plaint or in the title documents of the plaintiff or in the site plan as to what are the dimensions of the plot allegedly purchased by the plaintiff, whose properties are situated on the four sides of the property purchased by the plaintiff.
55. Therefore the description of the suit property given by the plaintiff is not sufficient to identify the same and therefore there is clear non compliance of the provisions of Order 7 Rule 3 CPC.
56. Let us now examine the plea of previous possession and subsequent dispossession being raised by the plaintiff. The plaintiff has claimed that she was in actual physical possession of the suit property since the date of its purchase. The plaintiff has alleged to have purchased the suit property in the year 1980. She further averred that she was dispossessed on 01.06.2003. The defendant is alleged to have purchased his property in the year 1999. However since it is a suit filed by the plaintiff the plaintiff must prove her previous possession in CS no:673/07 Page No: 22/34 respect of the suit property.
57. Reference may be made to the judgment titled as Abdul Rahiman v. Nalakath Muhammed Haji reported as AIR 1997 KERALA 23 wherein it was held:
" ..........Plaintiff must prove his previous possession and dispossession by the defendants otherwise than in due course of law within six months of the suit. The court need not go into the nature of parties' possession.
However, it is the person who claims under S. 6 should prove his possession and also the fact that he was dispossessed, within six months from the filing of the suit. The burden of proof is on the plaintiff to prove that he was dispossessed and that the suit was filed within six months from the date of dispossession..........."
58. Adverting to the facts of the case PW-1 has deposed that she was in possession of the suit property since the date of its purchase. PW-1 further stated that one Risal Singh had tried to interfere in the possession of the plaintiff in the suit property and thereafter proceedings under Section 145 of the Criminal Procedure Code were initiated and an order was passed whereby it was held that the plaintiff is in possession CS no:673/07 Page No: 23/34 and is entitled to possession of the suit property. The order of the SDM dated 23.04.1999 is Ex. PW-1/4.
59. Let us first of all consider what is the effect of this order Ex. PW-1/4 in the present suit. In those proceedings it was held by Sh. R.P. Meena, SDM that the plaintiff is in possession of the suit property, she is entitled for possession of the suit property and he further restrained Sh. Risal Singh from taking possession of the suit property. Section 145 of the Code of Criminal Procedure enjoins upon the SDM to give a finding as to which of the parties was in actual possession of the disputed property on the date of passing of the preliminary order under Section 145 of the Code of Criminal Procedure. The question to be seen is as to what is the value of this order in the present suit.
60. In this respect reference may be made to the judgment titled as Shanti Kumar Panda v. Shakuntala Devi reported as AIR 2004 SUPREME COURT 115 wherein it was held:
" .........A decision given under S. 145 of the Code has relevance and is admissible in evidence to show:- (1) that there was a dispute relating to a particular property; (ii) that the dispute was between the particular parties; (iii) that such dispute led to the passing of a preliminary order CS no:673/07 Page No: 24/34 under S. 145(1) or an attachment under S. 146(1), on the given date, and
(iv) that the Magistrate found one of the parties to be in possession or fictional possession of the disputed property on the date of the preliminary order. The reasoning recorded by the Magistrate or other findings arrived at by him have no relevance and are not admissible in evidence before the competent Court and the competent Court is not bound by the findings arrived at by the Magistrate even on the question of possession through, as between the parties, the order of the Magistrate would be evidence of possession. The finding recorded by the Magistrate does not bind the Court. The competent Court has jurisdiction and would be justified in arriving at a finding inconsistent with the one arrived at by the Executive Magistrate even on the question of possession. Sections 145 and 146 only provide for the order of the Executive Magistrate made under any of the two provisions being superseded by and giving way to the order or decree of a competent Court. The effect of the Magistrate's order is that burden is thrown on the unsuccessful party to prove its possession or entitlement to possession before the competent Court......"
61. It was further held:
" .........The party unsuccessful before the Magistrate may dispute the correctness of the finding arrived at by the Magistrate and is at liberty to show before the competent Court that it had not dispossessed the successful party or that it is the unsuccessful party and not the successful party who was actually in possession and the finding to the contrary arrived at by the Magistrate was wholly or apparently erroneous and CS no:673/07 Page No: 25/34 unsustainable in law......."
" ..........The unsuccessful party, therefore, must get relief only in the Civil Court. He may move the Civil Court with a properly constituted suit. He may file a suit for declaration and prove a better right to possession. The Civil Court has jurisdiction to give a finding different from that which the Magistrate has reached....." [ AIR 2004 SUPREME COURT 115]
62. It is therefore clear that even if the SDM had passed an order under Section 145 Cr.P.C. in proceedings between the same parties, who would have been parties to the present suit, then also the said order would not be binding on this court. This court is entitled to arrive at its own conclusion after appreciating the evidence available on the record. The order of the SDM is at most a piece of evidence which can be taken into account by this court in arriving at a final decision. The court is also entitled to examine the material on the basis of which the SDM arrived at a particular conclusion.
63. I have perused the said order Ex. PW-1/4 of the SDM in light of the other evidence adduced before this court. The reasons have been stated by the SDM in arriving at the finding given in the last but one para of the order. It has no where been stated by the SDM that on CS no:673/07 Page No: 26/34 what basis he arrived at the conclusion that the disputed land was in possession of Smt. Bimla Devi. It is seen that no where has the SDM clearly given a categorical finding as to the actual physical possession of the disputed property on the date of passing of the preliminary order. It also appears that no spot inspection was conducted by the SDM or any other officer. The SDM merely held that Smt. Bimla Devi is entitled for possession of the land without there being any evidence of actual possession.
64. In these facts and circumstances even if the said order Ex. PW 1/4 is to be treated as a piece of evidence, I do not find any material and cogent reason in the said order on the basis of which it can be inferred that on the date of the passing of the preliminary order under section 145 of the Code of Criminal Procedure Smt. Bimla Devi was in possession of the land in question.
65. Be that as it may the present defendant was not a party to the aforesaid proceedings under section 145 of the Criminal Procedure Code and therefore the defendant is neither bound by the said order nor is estopped from questioning the findings of the said order. Hence the CS no:673/07 Page No: 27/34 said order is irrelevant for the purpose of the decision of the present suit.
66. The plaintiff has further contended that she is having a ration card from the address of the suit property and copy of the ration card is Ex. PW-1/5. Learned counsel for the plaintiff has also contended that PW-1 has categorically deposed in this respect. However, no cross examination was conducted by the counsel for the defendant on this point and therefore the testimony of PW-1 is deemed to have gone unrebutted.
67. However, despite that fact I fail to understand as to how the said ration card establishes the possession of the plaintiff in respect of the portion whose possession is sought to be recovered in the present suit. The plaintiff claims that she had purchased the entire property which is shown in the site plan Ex. PW-1/6. She further claims that she is in possession of two rooms, bathroom and kitchen as shown in the site plan. She further claims that the portion shown in the red colour in the site plan has been illegally occupied by the defendant and she only seeks to recover the possession of the portion shown in red colour in the site plan.
CS no:673/07 Page No: 28/34
68. The ration card is available on record. The ration card shows the address of the plaintiff as merely Saboli Gaon. No house number or other details of the address of the plaintiff is given in the ration card. Therefore first of all it cannot be said that the ration card pertains to the suit property. Even if it pertains to the suit property then also it cannot be said that it pertains to any specific portion of the suit property. It might pertain to the portion comprising of two rooms, bathroom and kitchen which the plaintiff claims are in her possession.
69. However there is nothing on record which shows that the said ration card pertains to the portion of the suit property shown in red colour in the site plan Ex. PW-1/6 whose possession is sought to be recovered by the plaintiff. Therefore the said ration card also does not establish that the plaintiff was in possession of the portion of the suit property shown in red colour in the site plan.
70. In memo of parties in suit no. 40/04/00 titled Smt. Bimla Devi v. Smt. Ramwati and others as well as in this suit the plaintiff has shown her address as that of some other place. It is therefore clear that CS no:673/07 Page No: 29/34 the plaintiff has not been actually residing at Village Saboli, Delhi.
71. There is no other document on record which establishes that the plaintiff was in actual physical possession of the property shown in red colour in the site plan. No other independent witness was examined by the plaintiff in the present suit to establish her previous possession in the suit property.
72. On the contrary the defendant has examined an independent witness namely DW-2 who has deposed that the defendant had purchased the suit property and the defendant is in continuous possession of the suit property since the date of its purchase and he has raised two rooms with packka wall and fixed an iron gate on the same.
73. PW-1 further deposed that she has been dispossessed by the defendant from the suit property on 01.06.2003. The evidence on record discloses that the defendant had earlier filed a suit for permanent injunction against the present plaintiff where the defendant claimed that he is in possession of the suit property and the present plaintiff has interfered in his possession of the suit property and in the raising of CS no:673/07 Page No: 30/34 construction by him in the suit property. In the said suit an interim injunction was granted by the Ld. Civil Judge restraining the defendant from interfering in the possession of the suit property and interfering in the construction being raised by the defendant in the suit property. The said order was challenged by the plaintiff and the Learned Senior Civil Judge set aside the said order. Against the said order the defendant went in revision before the Hon'ble High Court of Delhi and the Hon'ble High Court of Delhi in Civil Revision No. 627/03 ordered the parties to maintain status vide order dated 29.05.2003.
74. The plaintiff has contended that after passing of the status quo order she has been dispossessed by the defendant from the suit property on 01.06.2003.
75. Now the date of dispossession is extremely material in a suit under section 6 of Specific Relief Act. Apart from a mere self serving ipse dixit of the plaintiff that she was dispossessed by the defendant from the suit property on 01.06.2003 no other evidence has been led by the plaintiff.
CS no:673/07 Page No: 31/34
76. The Ld. Civil Judge in the previous suit had held that the present defendant is in possession thereafter and had passed an interim injunction. Thereafter an application under Order 39 Rule 2 A CPC was moved by the present defendant in the said suit. The present plaintiff filed reply to the said application in the said suit on 30.08.2003. A certified copy of the said reply is available on record. Nothing has been stated by the present plaintiff in the said reply that she had been dispossessed by the present defendant on 01.06.2003. On the contrary it is stated in the reply that the present plaintiff had not interfered with the construction work and possession of the present defendant in the suit property. The present plaintiff no where stated in the reply that she was earlier in actual possession and now she has been dispossessed.
77. The present plaintiff has also filed her counter affidavit in Civil Revision Petition no.677/03 before the Hon'ble High Court of Delhi. The counter affidavit is dated 19.09.2003. A certified copy of the same is Ex. DW-1/4. In the said counter affidavit also the defendant has no where stated that she was dispossessed by the defendant on 01.06.2003.
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78. Further more the plaintiff had also filed a suit for permanent injunction against Smt. Ramwati and others bearing suit no. 40/04/00 titled Smt. Bimla Devi v. Smt. Ramwati and others. The said suit was decreed ex parte on 25.08.2004 in favour of the plaintiff. A certified copy of the judgment is Ex. PW 1/7. In the said suit also the plaintiff never informed the court that she has been dispossessed by the defendant from the suit property on 01.06.2003.
79. Further no police complaint was proved by the plaintiff to show that she had been dispossessed from the suit property on 01.06.2003. There is no other documentary evidence to show that plaintiff was illegally dispossessed from the suit property on 01.06.2003. No other independent witness has been examined to establish this contention.
80. I am of the opinion that the plaintiff has failed to prove that she was in possession of the suit property and was wrongly dispossessed by the defendant within a period of six months prior to the date of institution of the present suit.
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81. The net result is that plaintiff is not entitled to recover possession of the suit property in terms of Section 6 of the Specific Relief Act.
82. This issue is therefore decided in favour of the defendant and against the plaintiff.
RELIEF
83. In view of the foregoing discussion the plaintiff has not been able to prove that he is entitled for the reliefs claimed. The suit of the plaintiff is accordingly dismissed. No order as to costs. Decree sheet be prepared accordingly. Thereafter, file be consigned to record room.
Announced in the open (SAURABH KULSHRESHTHA)
Court on 21.12.2011 CCJ/ARC(East)
(Judgment contains 34 pages.) KARKARDOOMA COURTS,
DELHI
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