Delhi District Court
Gurudwara Shri Guru Govind Singh Sabha vs . Sh. Baldev on 31 August, 2022
IN THE COURT OF MS. CHITRANSHI ARORA , CIVIL
JUDGE-02, SOUTH-EAST DISTRICT, SAKET COURTS,
NEW DELHI.
CS SCJ 476/14 50405/16
Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev
Singh & Anr.
In the matter of: -
Gurudwara Shri Guru
Govind Singh Sabha, (Regd. No. S-E/331)
Main Road, Tughlakabad Ext.,
Kalkaji, New Delhi- 110019
Through its secretary
Sh. Jagroop Singh ................Plaintiff
Vs.
1. Sh. Baldev Singh
S/o Sh. Karam Singh,
R/o 338/4, Govindpuri, New Delhi
(Fresh address)
H. No. 343, Ground Floor,
Sant Nagar, Near East of Kailash,
New Delhi-110065
2. Sh. Bobby Chauhan
R/o TA-131, Tughlakabad Ext.
Near DDA Flats Kalkaji
New Delhi ................Defendants
Digitally signed
CS SCJ 476/14 50405/16 by CHITRANSHI
Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. CHITRANSHI ARORA
Page no. 1 of 31 ARORA Date:
2022.08.31
16:55:05 +0530
SUIT FOR DECLARATION & PERMANENT
INJUNCTION
Date of institution of the suit : 13.11.2014
Judgment reserved on : 22.08.2022
Date of judgment : 31.08.2022
JUDGMENT
1. Vide this judgment, I shall decide the present suit for declaration and permanent injunction, wherein the plaintiff has sought the relief that the judgment/decree dated 20.05.2011 passed by the Civil Judge-02 (South- New Delhi) in civil suit No. 218/2010 in the case titled as "Managing committee Gurudwara Guru Govind Singh Darbar Vs. Bobby Chauhan" be declared as null and void, the Managing committee Gurudwara Guru Govind Singh Darbar be declared as an illegal entity and the defendant no.1 be restrained from propagating the suit premises as his own.
BRIEF FACTS AS PER THE PLAINT: -
2. The plaintiff is a registered society having registration bearing no. S-E/331 and has been formed by the devotees of Gurudwara Shri Guru Govind Singh Sabha and Sikh Sangats of the area i.e. Tughlakabad Ext. & Kalkaji. The society is being managed as per the society rules and regulations and the elections are organized and Digitally signed CS SCJ 476/14 50405/16 by Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. CHITRANSHI CHITRANSHI Page no. 2 of 31 ARORA ARORA Date:
2022.08.31 16:55:09 +0530 conducted by the local people of the area, and on the basis of the election, the working committee is formed.
3. The Committee of the plaintiff society has been managing the affairs of Gurudwara Shri Guru Govind Singh Sabha for the last 30 years. With the passage of time, the plaintiff felt need to have a store room for storing the miscellaneous articles & goods, and therefore, plaintiff purchased a plot bearing no. TA-131B measuring 150 sq. yards out of Khasra no.59/2 situated at Tughlakabad Ext., New Delhi-110019 (hereinafter referred to as the suit property) from Sh. Ram Phal S/o Sh. Lala for a consideration of Rs.3,420/-. On the basis of the said purchase, the seller executed the documents such as General Power of Attorney, agreement to sell, Affidavit, Will, receipt etc. on 10.11.1982. The possession of the said plot is with the plaintiff since then. After purchase of the property, the plaintiff constructed a boundary wall on the plot & a temporary room therein for storing the articles & goods of the Gurudwara, one bathroom was also constructed for common use of Sewadar of the Gurudwara.
After constructing boundary wall on the gate of the plot, a board of Gurudwara was also mounted.
4. After election of the new committee, the Sadh-
Sangat of Gurudwara Shri Guru Govind Singh Sabha decided to construct a concrete structure over the plot in question and therefore, after laying the foundation they Digitally signed by CS SCJ 476/14 50405/16 CHITRANSHI Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. CHITRANSHI ARORA Page no. 3 of 31 ARORA Date:
2022.08.31 16:55:39 +0530 started erecting the column to support the building, and when the construction was going, the plaintiff society learnt on 23.06.14 about the judgment dated 20.05.11 and before any action is taken by the defendant no.1 on the basis of the said judgment, the plaintiff lodged a complaint with PS Govindpuri vide Diary no. 868 on 24.06.14 as the defendant no.1 in the garb of said judgment was causing interference in the peaceful possession of the plaintiff of the said plot.
5. The plaintiff approached the Civil court and filed an application for setting aside the ex-parte decree along with an application under Order 1 Rule 10 CPC, however, the same were dismissed, vide order dated 15.09.2014, on account of the applications being not maintainable as the plaintiff was not a party in the case where the previous judgment was passed. Thereafter, the plaintiff filed the instant case with the prayer that the decree dated 20/05/2011 should be declared as null & void on the grounds that defendant no.1 has never been in possession of suit property at any point of time & hence, he could not have maintained the suit for permanent injunction without having possession of the property in question. There is no such committee in the name of Gurudwara Guru Govind Singh Darbar and the plaintiff has mounted a board on the gate of suit property where it is written Gurudwara Shri Guru Govind Singh Sabha (Regd.), and this board Digitally CS SCJ 476/14 50405/16 signed by Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. CHITRANSHI Page no. 4 of 31 CHITRANSHI ARORA ARORA Date:
2022.08.31 16:55:46 +0530 continues to be on the gate of the suit property for the last about 30 years. The defendant no.1 has obtained the judgment in the name of Gurudwara Guru Govind Singh Darbar which never existed, and therefore, in absence of any evidence qua the existence of Darbar, the judgment/decree cannot be legally sustained & it is required to be declared null & void. Also, the defendant no.1 deliberately made a defendant no.2 as a party who has no concern at all with the suit property.
6. Further, the suit filed by the defendant no.1 was a fictitious exercise to obtain a judgment and a decree by misleading the Hon'ble court and concealing the material facts in order to claim the right over the suit property. The main gate of the property has the board of Guru Gurudwara Guru Govind Singh Sabha and that has been continuing in that place for the last 30 years & this is in the knowledge of all residents of the area & yet the defendant no. 1 neglected this aspect & even did not bother to implead the plaintiff as a party in the suit, & therefore, the whole proceeding initiated by defendant no.1 is deceptive by nature & hence, the judgment/decree cannot be legally sustained.
7. In the background of these facts, the plaintiff filed the instant suit for declaration and permanent injunction.
Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date: 2022.08.31 CS SCJ 476/14 50405/16 16:55:50 +0530
Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. Page no. 5 of 31 WRITTEN STATEMENT FILE D BY DEFENDANT NO.1:
8. Defendant no. 1 took the following preliminary objections in the Written Statement: -
i. Defendant No.1 is in possession of the suit property being legal owner of the suit property and plaintiff is not in possession. Suit of the plaintiff is barred by section 34 of the Specific Relief Act, since the plaintiff has not claimed the relief of possession;
ii. the suit is not maintainable as barred by the section 41 (j) of the Specific Relief Act as the plaintiff has no right, title and possession or personal interest in the suit property as the plaintiff AR and three other committee members namely Sh. Gurbachan Singh, Sh. Jagroop Singh and Sh. Budh Singh made written statement to the SHO on the complaint of defendant No.1, to the effect that they will not enter or interfere in the suit property bearing plot no. T-A-131B, TKD, New Delh without permission of the court;
iii. present suit is on the basis of the forged and fabricated documents just to grab the suit property which belongs to the defendant No.1 by misusing the name of Gurudwara;
Digitally signed by CHITRANSHI CHITRANSHI ARORA CS SCJ 476/14 50405/16 ARORA Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. Date: 2022.08.31 Page no. 6 of 31 16:55:55 +0530 iv. the plaintiff has no cause of action against the defendant no.1.
9. In Para-wise reply to the plaint, the defendant no. 1 denied the averments of the plaint and further asserted that-
i. He is the secretary of the managing committee of the Gurudwara Guru Govind Singh Darbar, registered with the registrar of society in the year 1981. He purchased the land measuring 1900 sq yards out of khasra no. 59/2 situated in the revenue record of village Tehkhand, Tuglakabad, New Delhi, in the name of his wife Smt. Sudershan Kaur, along with other co-purchaser on 11.04.1974 from Sh. Nandlal. After purchasing the same, the plaintiff got the Gurudwara Govind Singh Darbar constructed in the plot size of 150 Sq. Yards bearing no. T-A 131 B, which is the suit property. Thereafter a gift deed was executed by Sudershan Kaur and other co-owner for the suit property on 07.08.1980, to manage and perform the religious activities of the Gurudwara. Also, a GPA was executed on 19.08.1980 with respect to the entire land measuring 1900 Sq. Yards.
ii. Thereafter, the existence of the Gurudwara was mutated in the revenue record of the village- Tehkhand, New Delhi. A number of religious CS SCJ 476/14 50405/16 Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. Digitally signed Page no. 7 of 31 by CHITRANSHI CHITRANSHI ARORA ARORA Date:
2022.08.31 16:56:05 +0530 activities were performed by defendant no. 1 at the suit property with other local members of the society. In fact the defendant nio. 1 had filed the suit against DDA and MCD bearing suit no. 527/1980 and got status quo order in his favour on 07.07.1983. The colony Tughlakabad Extension was regularized by Delhi Government and interference of DDA and MCD later on stopped.
iii. Another case was filed against Sh. Kulvinder Singh, who along with Sh. Man Singh, was interfering in the affairs of the suit property. The defendant no. 1 is paying the house tax since the beginning. The defendant no. 1 is in possession of the suit property since 1974.
iv. Defendant no. 2 was kept as a caretaker by the defendant no. 1 and the plaintiff and defendant no. 2 have joined hands with each other and started acting against the interest of defendant no. 1. The plaintiff with the help of defendant no. 2 tried to dispossess and destroy the structure of the suit property. Immediately, when this fact came to the knowledge of defendant no. 1 he called PCR and registered complaint against illegal attempts of defendant no. 2 and plaintiff society.Digitally signed by CHITRANSHI
CHITRANSHI ARORA CS SCJ 476/14 50405/16 ARORA Date: 2022.08.31 Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. 16:56:09 +0530 Page no. 8 of 31 v. The site plan and photographs are denied. On 15.02.2014, the defendant no. 2 and members of the plaintiff society attacked the suit property and injured two employees of defendant no. 1 against which a complaint having DD no. 73 B was registered. On 26.11.2014, when the defendant no. 1 visited the suit property, he found that his belongings had been stolen. A complaint was filed and an FIR was registered.
WRITTEN STATEMENT FILED BY DEFENDANT NO. 2:-
10. In the written statement filed by defendant no. 2, he took the following preliminary objections:-
i. The suit of the plaintiff is not maintainable against him as he has no concern with the suit property and ii. the suit is not maintainable against him as no summons of any kind were received by the defendant in earlier suit.
11. In the para-wise reply, the defendant no. 2 admitted the claim of the plaintiff, that the suit property belongs to the plaintiff society. Since the time when he started working as a labouror in the suit property in the year 2008, he has always found the board of the Gurudwara mounted on the main gate of the suit property. The suit property CS SCJ 476/14 50405/16 Digitally signed by CHITRANSHI Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr.CHITRANSHI ARORA Page no. 9 of 31 ARORA Date: 2022.08.31 16:56:13 +0530 was controlled and occupied by the plaintiff society and the plaintiff society permitted the defendant no. 2 to reside in the small room built on the suit property.
REPLICATION FILED BY PLAINTIFF:-
12. The plaintiff denied the averments of the defendant no.1 made in the Written Statement and reiterated the contents of the plaint.
ISSUES:-
13. After completion of pleadings, the issues were framed by the Ld. Predecessor of this Court vide order dated 07.06.2016. Thereafter, the issues were re-framed by the Ld. Predecessor of this Court vide order dated 21.11.2016, which are as follows: -
i. Whether the plaintiff is entitled to relief of declaration as prayed for in prayer clause (a) of the plaint? OPP ii. Whether the plaintiff is entitled to relief of declaration as prayed for in prayer clause (b) of the plaint? OPP iii. Whether the plaintiff is entitled to relief of permanent injunction as prayed for in prayer clause (c) of the plaint? OPP Digitally signed by CS SCJ 476/14 50405/16 CHITRANSHI CHITRANSHI ARORA Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr.
ARORA Date:
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iv. Whether the plaintiff has filed the suit on the basis of forged and fabricated documents? OPD v. Whether the plaintiff has no right, title or interest in the suit property so as to file the suit? OPD vi. Whether the Gurudwara Guru Govind Singh Darbar Society is a necessary party to the present suit? If so, what is the effect of non impleadment of the society to the suit? OPD vii. Relief.
PLAINTIFF'S EVIDENCE: -
14. The plaintiff examined Sh. Rajinder Singh, the Joint Secretary of the plaintiff society, as PW-1, who deposed vide affidavit of evidence, exhibited as Ex.PW1/x, wherein he reiterated the contents of the plaint.
15. For the sake of brevity and to avoid repetition, the contents are not being reproduced again. PW-1 relied upon the following documents: -
S. Documents Exhibits/M
No. arks
1 Resolution dated Ex. PW-
31.10.2014 1/A
CS SCJ 476/14 50405/16 Digitally signed
by
Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. CHITRANSHI
Page no. 11 of 31 CHITRANSHI ARORA
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2 Resolution dated Ex. PW-
23.07.2015 1/A1
3 Resolution dated Ex. PW-
03.10.2015 1/A2
4 Property documents PW1/ Mark
'B' (colly)
(11 pages)
5 Site Plan Ex. PW-
1/C
6 Registration certificate PW1 Mark
dated 25.06.2014 'D'
7 Bharat Petroleum PW1 Mark
Corporation Ltd receipt 'E'
dated 01.04.94
8 Kain Gas Agency Receipt PW1 Mark
dated 01.04.94 'F'
9 Electricity Bill dated PW1 Mark
29.11.2001 'G'
10 Certified copy of plaint, Ex.
judgment and PW1/G1
applications (colly) (18
pages)
11 Certified copy of order Ex. PW1/H
dated 15.09.2014
CS SCJ 476/14 50405/16
Digitally
Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. signed by
Page no. 12 of 31 CHITRANSHI
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+0530
12 Photographs Ex. PW1/I
(colly) (6
pages)
13 Copy of wages register PW1 Mark
'J' (colly)
(17 pages)
16. PW-1 was duly cross examined by Ld. Counsel for the defendant no.1.
17. Thereafter, plaintiff examined Sh. Sulkhan Singh, the President of the plaintiff society, as PW-2, who deposed vide affidavit of evidence, exhibited as Ex.PW2/1 wherein he reiterated the contents of the plaint and relied upon the same documents already exhibited and marked.
18. Thereafter, vide separate statement of the Ld. counsel for plaintiff, the plaintiff evidence was closed.
The matter was put up for defendant evidence.
DEFENDANT'S EVIDENCE:-
19. Despite grant of opportunity, the defendants failed to appear and lead evidence. Therefore, the right of the defendants to lead evidence was closed vide order dated 24.05.2022. Thereafter, the matter was listed for final arguments.Digitally signed by
CS SCJ 476/14 50405/16 CHITRANSHI CHITRANSHI ARORA Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. ARORA Date:
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FINAL ARGUMENTS: -
20. Final arguments were advanced at length by the Ld. Counsel for the plaintiff. I have heard the submissions advanced by him. I have also perused the entire case record meticulously.
ISSUE-WISE FINDINGS:-
Issue no. 1- Whether the plaintiff is entitled to relief of declaration as prayed for in prayer clause (a) of the plaint? OPP
21. The burden to prove this issue lies on the plaintiff.
The plaintiff has sought the relief that the judgment/ decree passed by the Ld. Civil Judge-02 in the case bearing no. 218/2010 titled as the "Managing committee Gurudwara Guru Govind Singh Darbar v. Bobby Chauhan" dated 20.05.2011, be declared as null and void (hereinafter referred as the 'previous judgment/decree') The said judgment was passed ex parte against Bobby Chauhan, who is the defendant no.2 in the present case. The plaintiff in the instant matter was not a party to that suit. The plaintiff, in the previous case was the Managing committee of Gurudwara Guru Govind Singh Darbar, and a decree of permanent injunction was passed against the defendant i.e Bobby Chauhan, from selling, dispossessing, interfering in the affairs of the property no. TA-131B, Tughlakabad CS SCJ 476/14 50405/16 Digitally signed Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. by Page no. 14 of 31 CHITRANSHI CHITRANSHI ARORA ARORA Date:
2022.08.31 16:56:41 +0530 Extension, Kalkaji, New Delhi (the suit property). The plaintiff has filed the suit against defendant no.1 i.e. Sh. Baldev Singh, who had filed the previous suit on behalf of the Managing Committee of Gurudwara Guru Govind Singh Darbar (the plaintiff in the previous judgment) and against defendant no.2, who was the defendant in the previous judgment.
22. The plaintiff has asserted that the previous decree should be declared null and void on the following grounds-
a. Defendant no. 1 has never been in possession of the suit premises and has no right over the property and it is the plaintiff who has been in possession of the suit property since last 30 years and the same was purchased by the plaintiff against a valid consideration;
b. there is no such committee in the name of Gurudwara Guru Govind Singh Darbar in the vicinity and the defendant no.1 has obtained the judgment in the name of a farce committee;
c. there is a board with the name of the plaintiff committee on the gate of suit premises which has been there since last 30 years;
d. defendant no.2 was made a party to that suit deliberately since he has no concern with the suit property;
Digitally signedCS SCJ 476/14 50405/16 by
Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. CHITRANSHI
CHITRANSHI ARORA
Page no. 15 of 31 ARORA Date:
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e. the defendant no.1 deliberately did not implead the plaintiff as a party to the suit filed by him even though he knew that the plaintiff committee is in possession of the suit property, to mislead the court in granting him a decree.
23. The plaintiff has asserted that it is a registered society formed by the devotees and sangati of the area. Elections are held every two years as per the rules of the society and the management committee of the Gurudwara has authorised the secretary to pursue the present suit. The plaintiff has been managing the affairs of the Gurudwara since last 30 years and they purchased the suit property from Sh. Ram Phal on 10.11.1982 and have been in possession of the suit property since then. When the new committee of the plaintiff decided to construct a concrete structure in the suit property, the defendant no.1 in the garb of the previous judgment started causing interference qua the peaceful possession of the plaintiff.
24. On the other hand, the defendant no.1 has denied the averments of the plaintiff and claimed to be the owner in possession of the suit property for many years. The defendant no. 2 has supported the case of the plaintiff.
25. The plaintiff has filed the instant suit on the premise that the defendant no.1 had obtained the decree by misleading the court, by playing fraud and deception, on CS SCJ 476/14 50405/16 Digitally signed by Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. CHITRANSHI Page no. 16 of 31 CHITRANSHI ARORA ARORA Date:
2022.08.31 16:56:52 +0530 the basis that the defendant no.1 has never been in possession of the suit property. The very first ground on the basis which the plaintiff has sought the relief of declaration is that it is the plaintiff who has been in possession of the suit property since the last 30 years. To prove its case, the plaintiff examined PW-1, Sh. Rajender Singh, the joint Secretary of the plaintiff society, who placed reliance upon certain documents. To prove that the plaintiff is in possession of the suit property, PW-1, relied upon the photocopy of the receipt of Bharat Petroleum Corporation dated 01.04.1994 marked as PW-1 Mark E, photocopy of Kain Gas Agency receipt dated 01.04.1994 marked as PW1 Mark F and the photocopy of the electricity bill dated 29.11.2001. However, perusal of these documents show that they pertain to the Gurudwara and not to the suit property in question and therefore are irrelevant and immaterial for the plaintiff case. PW-1 also relied upon certain photographs exhibited as Ex. PW1/I to show its possession. The said has been brought on record to show that there is a board of the plaintiff mounted on the suit premises, since last 30 years. However, going through cross examination of PW-1, he has categorically admitted that -
"It is correct that I cannot tell who clicked and prepared photographs. (vol. But I can identify as to who all are present in the photographs). I CS SCJ 476/14 50405/16 Digitally signed Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. by CHITRANSHI Page no. 17 of 31 CHITRANSHI ARORA ARORA Date:
2022.08.31 16:56:56 +0530 cannot tell the month and the year when the photographs are taken. It is correct that at the time of taking the picture neither I was in the managing committee not at the spot."
26. The extract of the cross examination of PW-1, goes on to show that the veracity of the photographs remains unproved. Therefore, these undated photographs, the veracity of which have not been established and proved by the plaintiff, cannot prove the possession.
27. The next set of documents relied upon by PW-1 are the photocopy of General Power of Attorney, Agreement to sell, Affidavit and Will dated 10.11.1982 marked as PW1/ Mark B. The plaintiff did not file the original documents and filed only the photocopy. Now the first and the obvious objection, raised by the defendant, during the cross-examination was that these documents cannot be proved by secondary evidence. These documents were marked and not exhibited.
28. The law is clear that a document can be proved by ordinary methods of proof provided in the Indian Evidence Act. Section 64 provides that documents must be proved by primary evidence except in specific cases mentioned in Section 65. Now Section 65 of the Act, provides for specific cases where secondary evidence may be given of CS SCJ 476/14 50405/16 Digitally signed by Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. CHITRANSHI Page no. 18 of 31 CHITRANSHI ARORA ARORA Date:
2022.08.31 16:57:02 +0530 the existence, condition or contents of a document. Section 64 and 65 of Indian Evidence Act are as follows:-
"Section 64 of Evidence Act" Proof of documents by primary evidence"
Documents must be proved by primary evidence except in the cases hereinafter mentioned."
Section 65 of Evidence Act "Cases in which secondary evidence relating to documents may be given"
Secondary evidence may be given of the existence, condition, or contents of a documents in the following cases:-
(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved , or of any person out of reach of, or not subject to, the process of the Court or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it,
(b) when the existence, condition or contents of the original have been proved to be admitted in CS SCJ 476/14 50405/16 Digitally Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. signed by Page no. 19 of 31 CHITRANSHI CHITRANSHI ARORA ARORA Date:
2022.08.31 16:57:08 +0530 writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in [India] to be given in evidence ;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in court and the fact to be proved it the general result of the whole collection.
In cases (a), (c) and (d), any secondary evidence of the contents of the document is CS SCJ 476/14 50405/16 Digitally signed by CHITRANSHI Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr.CHITRANSHI ARORA Page no. 20 of 31 ARORA Date:
2022.08.31 16:57:11 +0530 admissible. In case (b), the written admission is admissible.
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, admissible.
In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.
29. Before proceeding further, I find it imperative to place reliance upon the judgments of Hon'ble Supreme Court, which have elucidated the significant aspects of proof of documentary evidence.
30. In a recent case titled as Jagmail Singh v Karamjit Singh, on 13 May 2020, the Hon'ble Supreme Court, observed that -
"A perusal of Section 65 makes it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the CS SCJ 476/14 50405/16 Digitally signed by Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. CHITRANSHI Page no. 21 of 31 CHITRANSHI ARORA ARORA Date:
2022.08.31 16:57:15 +0530 Court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it. It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original Evidence has not been furnished.
31. Further, the Hon'ble Supreme Court, also quoted the case of Rakesh Mohindra vs. Anita Beri and Ors, wherein the Hon'ble Supreme Court had observed as under:
"The preconditions for leading secondary evidence are that such original documents could not be produced by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non- production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted."Digitally signed
CS SCJ 476/14 50405/16 CHITRANSHI by CHITRANSHI ARORA Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr.ARORA Date: 2022.08.31 Page no. 22 of 31 16:57:19 +0530
32. In the above case, the Hon'ble Supreme Court, has reiterated that it is imperative to first lay down the foundational evidence of the reasons as to why the original Evidence has not been furnished.
33. Now, the reading of the above judgments, makes the aspect of proof of documents clearer. There are two angles to be taken note of while admitting secondary evidence of a document - first, the plaintiff has to prove that he is unable to produce the original document since he is covered under Section 65 of the Evidence Act i.e either the document is with the other party or he has lost it or destroyed it etc. Second, once he has proved that he is covered under either of the subsections of Section 65, he has to prove that he has fulfilled the conditions of that particular Sub section.
34. However, in the instant case, the plaintiff, has not given any reason as to why he has not produced the original documents. Therefore, when the foundational evidence of non-production of original documents has not been laid down by the plaintiff, the existence of any document cannot be said to be proved by way of secondary evidence.
35. Be that as it may, even if the photocopy of these documents are considered as it is, the next relevant question would be as to 'what' do these documents prove CS SCJ 476/14 50405/16 Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. Digitally signed by Page no. 23 of 31 CHITRANSHI CHITRANSHI ARORA ARORA Date:
2022.08.31 16:57:23 +0530 for the plaintiff. The plaintiff has brought these documents to show that the plaintiff purchased the suit property by way of these documents for a valid consideration. However, the law is well settled in the case of Suraj Lamp & Industries (P) vs State of Haryana & Anr, that these set of documents do not and cannot confer title. Thus, any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of section 54 and 55 of TP Act and will not confer any title nor transfer any interest in an immovable property (except to the limited right granted under section 53A of TP Act). Thus, the plea of the plaintiff that the plaintiff became the owner of the suit property by way of these documents is not legally correct and cannot be accepted.
36. Furthermore, these documents do not even show that the plaintiff has the possession of the suit property, since as per the plaint and as per the site plan exhibited as EX. PW1/C, the suit property is an open plot of land covered with a boundary wall. For such an open plot of land, since no other document has been furnished by the plaintiff, which proves its possession, the only way to prove possession is by way of documents of title. However, the documents PW1/ Mark B not being documents of title, cannot even prove possession.
Digitally signedCS SCJ 476/14 50405/16 by CHITRANSHI CHITRANSHI Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. ARORA Page no. 24 of 31 ARORA Date: 2022.08.31 16:57:29 +0530
37. I place reliance upon the judgment of the Hon'ble Supreme Court, in the case of "Anathula Sudhakar v. P. Bucci Reddy (Dead) by LR's and ors." AIR 2008 SC 2033, wherein the Court held that-
"But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for CS SCJ 476/14 50405/16 Digitally signed Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. by CHITRANSHI CHITRANSHI ARORA Page no. 25 of 31 ARORA Date: 2022.08.31 16:57:33 +0530 injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs"
38. From the discussion above, it is clear that neither has the plaintiff been able to show its ownership nor possession of the suit property. Therefore, the bedrock of the relief of declaration on the ground that the plaintiff is in possession of the suit property, remains unproved.
39. Another document relied upon by PW-1, is the copy of wages register marked as PW1 Mark J. The relevance of this document to the plaintiff's case has not been explained by the PW-1. Infact, during cross examination, when PW-1 was asked to explain the relevance of this document, he stated that- "I have no knowledge for what purpose the managing committee/ plaintiff have filed the documents PW1/ Mark J (colly) (running into 17 pages)." Thus, this document also does not support the case of the plaintiff.
40. Furthermore, it is imperative to note that during the cross examination of PW-1, it has been elicited from him that he has no knowledge, whatsoever, of the case filed by the plaintiff, since he admitted that that he is not aware of the documents filed along with the suit, that he is seeing the document PW-1/ Mark B for the first time in court, he hasn't got the site plan exhibited as EX. PW1/C prepared and cannot tell who got the same prepared, he does not CS SCJ 476/14 50405/16 Digitally signed Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. by CHITRANSHI CHITRANSHI ARORA Page no. 26 of 31 ARORA Date: 2022.08.31 16:57:38 +0530 know anything about the case filed by the managing committee Gurudwara Guru Govind Singh Darbar through Baldev Singh against Bobby Chauhan which is Ex. PW- 1/G-1, he has no knowledge about the order dated 15.09.2014 which is PW1/H and he has no knowledge of the document for registration of the plaintiff society.
41. The next witness who deposed was PW-2, Sh.
Sulkhan Singh, the President of the plaintiff association. He relied upon the same set of documents relied on by PW-1. He was not cross examined.
42. Therefore, from the discussion above, it becomes clear that the plaintiff has not been able to substantiate its averments made in the plaint with any evidence. It is worthwhile to mention that in a case where the plaintiff is seeking the relief of declaration that a decree passed by a competent court be declared null and void, the burden upon the plaintiff is much more than just to prove his documents. He has the additional burden to disprove and discredit the documents filed by the defendant on the basis of which the judgment/decree was granted in his favour. However, in the instant case, neither has the plaintiff been able to prove his documents nor disprove the documents filed by the defendant no.1 in the previous case.
43. The law is well settled that the plaintiff's case has to stand on its own legs and the defect or lacunae in the case CS SCJ 476/14 50405/16 Digitally signed Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. by Page no. 27 of 31 CHITRANSHI CHITRANSHI ARORA ARORA Date:
2022.08.31 16:57:42 +0530 of the defendant cannot be taken advantage of by the plaintiff. The plaintiff has failed to prove any assertion or averment made in the plaint, therefore, there is no reason to go into the averments made by the defendant in the written statement.
44. In view of above discussion, the issue no.1 is decided in favour of the defendant no.1 and against the plaintiff.
Issue no.2- Whether the plaintiff is entitled to relief of declaration as prayed for in prayer clause (b) of the plaint? OPP And Issue no.6- Whether the Gurudwara Guru Govind Singh Darbar Society is a necessary party to the present suit? If so, what is the effect of non impleadment of the society to the suit? OPD
45. Issue no.2 and issue no.6 are taken up together, since they are connected. The burden to prove issue no.2 lies on the plaintiff. The plaintiff has prayed that the Managing committee Gurudwara Guru Govind Singh Darbar be declared as an illegal entity. However, all the evidence and the documents brought on record by the plaintiff are discussed in the previous issue and it is clear that the CS SCJ 476/14 50405/16 Digitally signed by CHITRANSHI Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. CHITRANSHI ARORA Page no. 28 of 31 ARORA Date:
2022.08.31 16:57:48 +0530 plaintiff has not been able to show or prove as to how the Managing committee Gurudwara Guru Govind Singh Darbar, is an illegal entity. Also, the defendant no.1 has rightly claimed that the Gurudwara Guru Govind Singh Darbar Society is a necessary party, since the relief sought by the plaintiff in the second prayer relates to the declaration of the society as illegal. When the relief sought is against the society, the society is no doubt the necessary party, in such a suit and no effective order against the Managing committee Gurudwara Guru Govind Singh Darbar Society can be passed without it.
46. Thus, issue no.2 and issue no.6 stand decided in favour of the defendant no.1 and against the plaintiff.
Issue no.3- Whether the plaintiff is entitled to relief of permanent injunction as prayed for in prayer clause (c) of the plaint? OPP
47. The burden to prove this issue lies on the plaintiff.
The plaintiff has claimed that the defendant no.1 be restrained from propagating the suit property as his own. The plaintiff has claimed that the suit property was purchased by the plaintiff in the year 1982, and since then, the plaintiff has been in possession of the suit property. However, the plaintiff has not been able to prove its assertions. No evidence which supports the averments of the plaintiff are brought on record. Thus, this issue also CS SCJ 476/14 50405/16 Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. Digitally signed by CHITRANSHI Page no. 29 of 31 CHITRANSHI ARORA ARORA Date:
2022.08.31 16:57:53 +0530 stands decided in favour of the defendant no.1 and against the plaintiff.
Issue no. 4-Whether the plaintiff has filed the suit on the basis of forged and fabricated document? OPD And Issue no. 5-Whether the plaintiff has no right, title or interest in the suit property so as to file the suit? OPD
48. Issues no.4 and 4 are being taken up together since they are connected. The burden to prove these issue lies on the defendant no.1. The defendant no.1 has asserted that the plaintiff has filed the suit on the basis of forged and fabricated documents and that the plaintiff has no right, title and possession or personal interest in the suit property as plaintiff and three other members had made a written submission before the SHO on the complaint of defendant no.1, that they will neither enter nor do any work on the suit property without permission of court. However, the defendant no. 1 has failed to lead any evidence to prove his submissions made in the Written Statement. Therefore, the issue no. 4 and issue no. 5 are decided against the defendant no.1 and in favour of the plaintiff.
RELIEF: - Digitally signed
by CHITRANSHI
CHITRANSHI ARORA
ARORA Date: 2022.08.31
16:57:58 +0530
CS SCJ 476/14 50405/16
Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. Page no. 30 of 31
49. In view of the aforesaid discussion, the facts and circumstances of this case, the findings given on the issues, the documents placed on record and the evidence led, the plaintiff has failed to prove its case on the scale of preponderance of probabilities.
50. Accordingly, the suit of the plaintiff is hereby dismissed. Consequently, the interim order dated 16.01.2021 stands vacated.
51. Parties to bear their own cost.
52. Decree sheet be prepared accordingly.
53. File be consigned to record room after due compliance. Digitally signed by CHITRANSHI CHITRANSHI ARORA ARORA Date:
2022.08.31 16:58:04 +0530 Pronounced in open court (Chitranshi Arora) Today on 31.08.2022 CJ-02, South-East, Saket Court, New Delhi.
CS SCJ 476/14 50405/16 Gurudwara Shri Guru Govind Singh Sabha Vs. Sh. Baldev Singh & Anr. Page no. 31 of 31