Delhi District Court
Sh. Asha Ram S/O Sh. Devi Sehai vs Sh. Shiv Ram S/O Sh. Umrao on 30 August, 2012
IN THE COURT OF MS. SHILPI JAIN:
CIVIL JUDGE-7 (CENTRAL) : DELHI
Civil Suit No. : 90/10/00
Unique Case ID No : 02401C0379982002
In the matter of:
1. Sh. Asha Ram S/o Sh. Devi Sehai
2. Sh. Brahm Prakash S/o Sh. Rohtas
3. Sh. Vijay S/o Sh. Malkhan
4. Sh. Ashok S/o Sh. Ramphal
5. Sh. Jai Kumar S/o Sh. Banwari
All residents of village Jhatikra, Delhi .............. Plaintiffs
Versus
1. Sh. Shiv Ram S/o Sh. Umrao
2. Sh. Yogeshwar
3. Sh. Bhagwan Dutt
Both sons of Sh. Shiv Ram
4. Sh. Ram Narain S/o Sh. Umrao
5. Sh. Dev Dutt
6. Sh. Om Dutt
Both sons of Sh. Ram Narain
All residents of village Jhatikra, Delhi ............. Defendants
Date of institution of the Suit : 02.02.2000
Date on which order was reserved : 30.08.2012
Date of decision : 30.08.2012
SUIT FOR PERMANENT INJUNCTION
JUDGMENT :-
Asha Ram Vs. Shiv Ram 1/131. By this judgment this court shall decide the suit for permanent injunction.
2. It is averred by the plaintiff in the plaint that the plaintiffs are the permanent residents of Village Jhatrikra, Delhi and the plaintiffs own and possess the residential houses in the village Jhatikra, Delhi and also own and possess the agricultural land in the Village and within the Abadideh of village Jhatikra, Delhi. A pacca Shiv Mandir was constructed by the villagers on the Abadideh of Village Jhatikra, Delhi which belongs to the villagers and a vacant site was left for performing pooja and doing Kirtans on festivals and religious days. The villagers are using the portion as shown red in the site plan (hereinafter referred as suit property) for performing religious rituals and exclusively belongs to the villagers and the same has been reserved for the user and enjoyment as a religious place and no private person has any right, title or interest of any kind in the said portion.
3. It is further averred that the defendant No. 1 to 4 are real brothers and defendant Nos. 2, 3, 5 and 6 are their sons and belongs to the same family and in collusion to each other the defendants are trying to grab the suit property.
4. It is further averred that the plaintiffs and other residents of the village had requested many times to the defendants to not to interfere in any way in the suit property which is a religious place as the residents of the village have been using the same for the last many years for religious purpose. However, on 21.01.2000 the defendants had collected bricks and had started raising construction on the suit property but due to timely intervention on the villagers as a whole, the defendants did not succeed in their ulterior motive of encroachment on the property of the temple.
5. It is further averred that the villagers had also went to the police station Asha Ram Vs. Shiv Ram 2/13 against raising of construction on the temple property but the police in collusion with the defendants and local police did not took any action against the defendants. That Shiv Ram and Ram Narain in collusion with each other have also got initiated the proceeding under Section 145 Cr.P.C. by SHO concerned with a motive of making their claim on the suit property and in collusion with SHO also got prepared a Kalandra under Section 145 Cr.P.C.
6. It is further averred that there is no other efficacious remedy available to the plaintiff except to file the present suit.
7. It is prayed that a decree of permanent injunction may be passed in favour of the plaintiff and against the defendants restraining the defendants from raising construction on suit property or to interfere in any way in the suit property.
8. In Written Statement filed on behalf of defendant No. 1 to 3, it is averred that the present suit is not maintainable and the same is liable to be dismissed under Section 41 (J) of Specific Relief Act as the plaintiffs neither have any right, title or interest in nor were/ are in possession of the suit property because the suit property is the ancestral property of the answering defendants, who are in peaceful and continuous use and occupation thereof since birth through their ancestors without any interference.
9. It is further averred that the present suit being infructuous, false and frivolous is not maintainable and the plaint is liable ot be rejected outrightly under Order 7 Rule 11 r/w Section 151 CPC because pleadings of the plaintiffs are false, frivolous and baseless even to the knowledge of the plaintiffs themselves because para No. 9 and 13 of the plaint contain self contradictory allegations regarding accural of cause of action.
Asha Ram Vs. Shiv Ram 3/1310. It is further averred that the present suit is not maintainable and the same is liable to be dismissed under Section 41 (i) of the Specific Relief Act as the plaintiffs have not approached this Hon'ble Court with clean hands and have suppressed material facts with malicious intention, ulterior motive of depriving the defendants, in collusion and connivance with defendants No. 4 to 6 of their valuable legal rights in the suit property by engaging and involving them in completely false and frivolous litigation. That the present suit is not maintainable and the same is liable to be dismissed as the plaintiffs have made completely false and frivolous claim because the suit property was never the property of the village temple.
11. It is admitted by the defendant that within the Abadideh of village Jhatikara, Delhi there is a site of Shiv Mandir. However, it is denied that the suit property is a site of Shiv Mandir. It is submitted that the suit land is the ancestral property of the answering defendants who are in peaceful, exclusive and continuous use and occupation thereof.
12. It is admitted that the Shiv Mandir was constructed by the villagers. However, it is denied that any vacant site was left for performing pooja and doing kirtans on festivals and religious days by the villagers. It is submitted that entire land of the Shiv Mandir is comprised within the boundary wall of the temple and beyond that there is no land of the Shiv Mandir. It is admitted that defendants No. 1 and 4 are real brothers and defendants No. 2, 3 and 5 and 6 are their sons and belongs to the same family. It is denied that the answering defendants, in collusion with defendants No. 4 to 6, are trying to grab suit property.
13. It is further averred the question of taking of any action by the local police against the answering defendants does not arise because the answering defendants did not commit any illegal activity by raising boundary wall on the suit land.
Asha Ram Vs. Shiv Ram 4/1314. It is submitted that when the answering defendants, being the exclusive owner and in use and occupation of the suit land, started constructing boundary wall around the same, the plaintiffs made futile attempts to stop the same and made complaints to various authorities including Deputy Commissioner (South West). After personally inspecting the suit land, the then SDM (Najafgarh) was fully convinced that the suit land is the ancestral property of the answering defendants and tried to convince the plaintiffs not to unnecessary harass the answering defendants by making false and frivolous complaints against the defendant. However, the plaintiffs did not pay any heed to the advise of the then SDM (Najafgarh), Delhi who was compelled by the adamant behavior of the plaintiffs to direct the SHO Police Station Jafarpur Kalan, Delhi to prepare Kalandra under Section 145 Cr.P.C. in respect of the suit land with a view to pacify the plaintiffs and avoid any untoward incident between the plaintiffs and the defendants as the then SDM (Najafgarh) was aware that the plaintiffs are having enmity with the answering defendants.
15. It is further averred that the defendants are exclusive owners of and in use and occupation of the suit land and the question of the plaintiffs having any right and interest in the suit land and also having any right to file present suit qua the suit land against the defendants does not arise at all. Since the plaintiffs have no locus standi to file the present suit qua the suit land, the question of the plaintiffs having no other efficacious remedy except to file the present suit also does not arise.
16. It is prayed that suit of the plaintiff be dismissed with costs.
17. In Written Statement filed on behalf of the defendant No. 4 to 6, it is submitted that there is a Shiv Mandir situated within the Abadideh of the village and the said Shiv Mandir belongs to the Village community as a whole. It is submitted that the defendant No. 1 to 4 are the real brothers and further the defendant No. 2 and 3 are the sons of the defendant No. 1 Asha Ram Vs. Shiv Ram 5/13 and the defendant No. 5 and 6 are the sons of the defendant No. 4.
18. It is further submitted that the answering defendant had no concern with the property of the Shiv Mandir. It is further submitted that the answering defendant had no concern with the suit property and defendant had no intention at all to grab the said property. It is further submitted that defendant had no right, title or interest of any kind in the disputed property. It is further submitted that disputed property exclusively belongs to the Shiv Mandir. It is further submitted that the villagers are in use and enjoyment of the property in question and the defendant had not interfered in any way in the user and enjoyment of the portion in suit. It is further submitted that the defendant had not committed any kind of trespass on the land in question belonging to the Shiv Mandir exclusively. It is further submitted that it is the defendant No. 1 to 3 who tried to trespass on the land in the suit and the answering defendant also requested the defendant No. 1 to 3 to not to interfere in any way in the use and enjoyment of the property in question.
19. It is further submitted that in collusion with the local police, the defendant No. 1 to 3 want to grab the property of the Shiv Mandir by making a case under Section 145 Cr. P.C. It is further submitted that the defendant No. 4 to 6 has no concern over the property in question and the property in question belongs to the Shiv Mandir and also in possession of Shiv Mandir.
20. It is prayed that the suit be dismissed against defendant No. 4 to 6.
21. In replication filed on behalf of plaintiff to the Written Statement of defendant No. 1 to 3, plaintiff vehemently denied all the contentions of the defendant and submitted that the the suit deserves to be decreed.
22. On the basis of the pleadings of the parties following issues were framed Asha Ram Vs. Shiv Ram 6/13 on 09.01.2004:-
1. Whether the property in dispute belongs to Shiv Mandir as alleged in the plaint? OPP.
2. Whether the plaintiffs are entitled to relief of Permanent Injunction as sought in the plaint? OPP.
3. Relief.
23. Suit was dismissed as withdrawn against defendant No. 4/ Lrs of defendant No. 4 vide order dated 01.10.2004.
24. Thereafter, both the parties led their evidence and examined witnesses to establish their respective case.
25. I have heard the arguments of Ld. Counsel for both the parties and perused the record carefully.
26. Issue wise decision of this court is given below:-
27. ISSUE NO. 1"Whether the property in dispute belongs to Shiv Mandir as alleged in the plaint? OPP".
It is averred by the plaintiff in his plaint that the disputed area (vacant land) belongs to shiv temple and it is used by villagers for performing pooja and doing kirtans on festivals and religious days. Plaintiff has examined three witnesses including plaintiff No. 1 in order to prove his case. Plaintiff No. 1 Sh. Asha Ram has reiterated the contents of his plaint in his evidence by way of affidavit which is Ex. P1 but he failed to support his version in his cross- examination and deposed that suit land is within the lal dora of village Jhatikra, Delhi and person in possession of any piece of land within the lal dora is issued a lal dora certificate by the concerned SDM. PW-1 further made certain contradictory depositions during his cross- examination like at one place PW-1 deposed that no Asha Ram Vs. Shiv Ram 7/13 quarrel ever took place between plaintiff and defendant No. 1 to 3 qua suit land and thereafter PW-1 deposed that plaintiff informed the police for restraining defendant No. 1 to 3 from raising boundary on the suit land. After going through the whole cross- examination it appears that testimony of PW-1 cannot be relied upon as he is very confused during his deposition and failed to support his version.
PW-2 Sh. Ishwar who is permanent resident of village deposed in his affidavit which is Ex. PW-2/A that disputed land belongs to shiv temple. PW-2 further deposed in his cross- examination that disputed land is of temple. Thereby supporting the case of plaintiff.
PW-3, Sh. Ram Sarup, permanent resident of village, has deposed in his affidavit Ex. PW-3/A that disputed land belongs to Shiv Temple and is being used for performing kirtan and other religious function. However, he further deposed on page 2 of his affidavit that defendants had right to construct on disputed land alleging the same to be their property. As such PW-3 is deposing in favour of shiv temple as well as defendant and no specific conclusion can be drawn from his evidence in his affidavit.
Defendant examined two witnesses DW-1 and DW-2 to prove his case. DW-1 was defendant No. 3, Sh. Bhagwan Dutt who reiterated the contents of his Written Statement in his affidavit.
DW-2 Sh. Balraj Singh, Patwari, deposed in this evidence that "there is no record of right of land situated in old Lal Dora/ abadi deh with the Patwari. The concerned SDM issues Lal Dora Certificate in respect of land situated in old Lal Dora/ abadi deh on application being made for this purpose. The concerned SDM directs the Halka Patwari to submit land status report before issuing Lal Dora Certificate to applicant. In the land status report the Patwari submits about the area of the plot, sides of the plot and possession of concerned party. DW-2 further deposed that the report Ex.
Asha Ram Vs. Shiv Ram 8/13DW- 1/9 was prepared by me after visiting the land in question and after making preliminary inquiry from the villagers."
"In his cross- examination DW-2 has deposed that" I do not know whether any proceeding U/s 145 CR. P.C. were pending in the court of SDM. The notice was given to me by SDM concerned. There was no mention of any khasra number in the notice which I have received from SDM. I cannot tell whether Khasra No. 84 was mentioned in the said notice. There was no site plan alongwith the notice which I received from the office of SDM. I have not met any person in the temple at the Village. I met one Sh. Rajinder and other Sh. Laxmi Chand at the spot. I have not measured the property in dispute at the spot. I cannot tell the area of the built up temple and the land lying vacant adjoining to the temple. I have mentioned the length and breadth of the disputed property in my report. I cannot mention anything in regard to the ownership of the plots in possession of persons within the Lal Dora abadi of the village. I was not having any document in my possession in regard to the ownership of defendants No. 1 to 3 in respect of the disputed land. I have mentioned the possession of defendants No. 1 to 3 on the disputed portion on the basis of the inquiry from the villagers present on the spot".
28. From evidence of DW-2 it is clear that no ownership rights were conferred by lal dora, certificate and report given by him to SDM for issuance of certificate is not based on strict facts qua suit property as there was no site plan with the notice and Khasra number was not mentioned in the notice received by DW-2 from SDM concerned. Furthermore he has not measured the property in dispute at the spot and cannot tell the area of built up temple and the land lying vacant adjoining to the temple.
29. However, in the written statement filed on behalf of the defendant No. 4 to 6 they categorically admitted that defendant No. 1 and 4 are real brother and they have no concern with the disputed land and it exclusively Asha Ram Vs. Shiv Ram 9/13 belongs to shiv mandir. Furthermore as per report of LC the disputed land belongs to village and is forming part and parcel of the shiv temple. It also reveals that disputed land is an open space which is left to be used and maintained by the shiv temple for the day to day rituals and other purposes like. Before proceeding further it is pertinent that significant extracts from LC report should be reproduced here which gives a very clear picture regarding disputed land entitlement. Relevant portion of LC report is given below:-
"That during the proceedings of the execution of the commission as per the directions of this Hon'ble Court, in order to ascertain and understand the factual position with regard to the possessory rights of the suit property, the undersigned has examined a few witnesses from the village who happens to be the uninterested parties and whose examination was not objected to by any of the parties present at the site.
The witnesses examined were:
a) Sh. Ram Sewak Pandey- Statement Annexure -C.
b) Sh. Hukam Chand- Statement Annexure- D.
c) Sh. Sudhir Tyagi- Statement Annexure- E.
d) Sh. Hari Prasad Tyagi- Statement Annexure- F.
e) Sh. Satbir Singh- Statement Annexure- F. That as per the actual site inspection and according to the opinion, examination of the elders and the respected people of the village Jhatikra, the undersigned was able to decipher the factual position as:
"The site in dispute i.e. the disputed plot of a land, adjoining Shiv Temple, Village Jhatikra, duly sown in the site plan annexed hereto, was the land belonging to the village and is forming part and parcel of the Shiv Temple. It was an open space left which was to be used and maintained by the Shiv Temple for the day to day rituals and other purposes like.Asha Ram Vs. Shiv Ram 10/13
As a common usage and practice it is a settled preposition that generally any open space or a vacant space in the village is being used by the people who happens to be the immediate occupant of the same. The defendant No. 1, 2 and 4 i.e. Sh. Shiv Ram, Sh. Yogeshwar Dutt and Sh. Ram Narain happened to be the nearest and immediate occupants staying right in front of the dispute site which is an open space being the vacant plot of land. There was a plausible reason for the defendants to use the said open space duly shown in red colour, as a storage for their wastes like cow dung etc. and for keeping/ tying their animals since the disputed site was plainly lying vacant. The defendants are still using the disputed site for the same purpose and the garbage, cow dung and other wastes etc. are lying therein, which belongs to Sh. Yogeshwar Dutt, i.e. defendant No. 2. Upon inquiry and examination from the villagers. It revealed that the disputed site was earlier being used by the defendants No. 5 and 6 who have removed their belongings from the said site after the villagers raised an objection to this regard as they were also convinced that the village temple has got the possessory rights over the disputed property. In my considered opinion, the disputed site belongs to the Shiv temple and thereby the village in its whole and the defendants are claiming the same to be their property only by reason of the fact that as a common practice, they are using the same whereas the factual position remains that the defendants have got no right, title or interest in the suit property. They are claiming the possessory rights in order to circumvent the legal and lawful right of the shiv temple of the village which is unnecessarily and unlawfully being deprived off using the space belonging to the village temple."
30. So far as entitlement of defendants is concerned as referred in LC report that garbage, cow dung and other wastes etc. belonging to defendant No. 2 were lying on the disputed land, it was held by Hon'ble High Court of Delhi in Asha Ram Vs. Shiv Ram 11/13 Suresh Datt Vs. Harbans Lal & Ors.
(arising on RSA 24/1985 decided on 24.03.2008) that "if a person tethers cattle or places cow dung, farm implements on vacant land, the said fact does not constitute possession".
31. In view of aforesaid discussion, LC report, which is given by an uninterested person on the basis of examination of uninterested parties thereby forming independent and credit worthy evidence and clear cut admission by defendant No. 4 to 6 in their Written Statement, it is held that disputed land belongs to Shiv temple. Hence, this issue is decided in favour of plaintiff and against the defendant.
32. ISSUE NO. 2.
"Whether the plaintiffs are entitled to relief of Permanent Injunction as sought in the plaint? OPP".
Defendant No. 1 to 3 has claimed right over the suit property on the averment that it is their ancestral property. However, disputed land is a vacant land and after enactment of Delhi Land Reform Act, 1954 this vacant land got vested in Gaon Sabha. As such, it was no more their ancestral land after the year 1954. Moreover, defendant No. 4 who is real brother of defendant No. 1 has categorically admitted in his Written Statement that they have no concern with the disputed land and it belongs to Shiv temple. Admitted quarrels between defendant No. 1 to 3 and plaintiff regarding disputed land shows that defendants tried to encroach upon the suit property by use of force and therefore fear of plaintiff that defendant No. 1 to 3 will again try to interfere in the disputed property is right. As such, plaintiff is entitled to permanent injunction against the defendant. Therefore, this issue is decided in favour of plaintiff Asha Ram Vs. Shiv Ram 12/13 and against the defendant.
33. ISSUE NO. 3.
"RELIEF"
In view of decision aforesaid issues a decree of permanent injunction is passed in favour of plaintiff and against the defendants thereby restraining the defendants from raising any construction on the suit property or from interfering in any way on the suit property. Parties to bear their own cost. Decree sheet be prepared accordingly. File be consigned to the record room after due compliance.
ANNOUNCED IN THE OPEN COURT ON 30th AUGUST 2012 (SHILPI JAIN) CJ-07 (CENTRAL):DELHI Asha Ram Vs. Shiv Ram 13/13