Delhi District Court
Trilok Chand Sharma vs Shri Kundan Lal on 13 May, 2022
IN THE COURT OF SH SACHIN JAIN, ADDL. DISTRICT
JUDGE - 02, SOUTH WEST DISTRICT, DWARKA COURTS,
NEW DELHI
CS DJ ADJ No.15755/16 (93/15)
CNR No.DLSW0101
IN THE MATTER OF:
Trilok Chand Sharma
S/o Shri Hardwari Lal Sharma,
R/o C-165, Hari Nagar Clock Tower,
New Delhi-110064
... Plaintiff
Versus
Shri Kundan Lal
(Since deceased through Lrs)
1. Sh Jai Kishan
2. Sh Subhash
3. Sh Satish
4. Ms Geeta
All -R/o Plot No.91, Village Badusarai,
PO Chhawla, New Delhi ... Defendant
Date of institution of suit: 14.08.2007
Date of judgment reserved: 30.04.2022
Date of pronouncement of judgment: 13.05.2022
Page No. 1/73
JUDGMENT
1. The present suit is filed by the plaintiff for the relief of possession, damages and permanent injunction against the defendant.
2. The defendant Kundan Lal had died on 20.01.2020 during the pendency of the present suit and vide order dated 18.02.2020, his LRs, namely, Sh Jai Kishan, Sh Subhash, Sh Satish and Ms Geeta were substituted as defendants in the present suit.
3. Briefly, stated it is the case of the plaintiff that he had purchased 7 bighas of land bearing khasra No. 19/13/1 min.(4-
03) and 19/14(3-0) situated in the revenue state of Village Badusarai, Tehsil Najafgarh, Delhi vide registered sale deed , registered at Srl. 10381 in Addl. Book No.1. Vol. No. 4725, page nos. 131 to 133 dated 02.12.1985 from Sh Ran Singh and Narain Singh and after the purchase of the said land the same was mutated in his name in the revenue records vide khatoni no. 9/17 min. Year 1987-1988.
4. It is further the case of the plaintiff that he kept on sowing the rabi and khariff crops on the suit land since its purchase either himself or through other persons and continued in actual, physical and cultivatory possession of the said land. It is further stated that with the passage of time due Page No. 2/73 to financial requirement and needs the plaintiff sold a portion of the land.
5. It is further the case of the plaintiff that the property dealer started raising residential colonies in the area and therefore the portion of the land earlier sold by the plaintiff also stand converted into residential structures by the purchaser of that land.
6. It is further the case of the plaintiff that the consolidation proceedings were started in the village Badusari in the year 1996 which were completed in the month of March-April 2005 and in the consolidation proceedings the land of the plaintiff was converted into plots bearing Khasra no. No. 88 to 99 forming part of extended lal dora abadi in the revenue estate of village Badusari Tehsil Najafgarh, Delhi and out of the said plots the plaintiff sold the plots bearing Nos. 89,90,92,93,95 and 99 to the respective buyers who are in possession of the same by raising super structure therein and the remaining plots bearing Nos. 88,91,94,96,97 and 98 are in the sole and absolute ownership of the plaintiff. It is further case of the plaintiff that the family member of the plaintiff and the friends raised the boundary wall and constructed one room and temporary tin shed in remaining four plots situated in the revenue state of Village Badusarai.
7. It is the case of the plaintiff that some villagers in order to grab the valuable properties of the plaintiff eluded with Page No. 3/73 official of the revenue and got mentioned there name in the kaiyami in the year 2005 by taking benefits of absence of the plaintiff. It is the case of the plaintiff that the defendant illegally and unlawfully started claiming to be the owner of plot No. 91 measuring 950 sq yds on the basis of some forged, fabricated and manufactured documents and subsequently, illegally and unlawfully trespass in the suit land/property above plot No. 91 sometime in the year 2004.The plaintiff was shocked and surprised when he visited the suit property in August, 2005, to know that some cows and two buffaloes are tied under the tin shed in the suit property (court observation- the plaintiff may be mentioning plot No. 91 as the suit property) and some clothes were spread for drying. The plaintiff further submitted that he was shocked to see that the other three plots /property have also been illegally, unlawfully trespass by some other persons and using them as place of tethering the cows and buffaloes. On inquiry the plaintiff came to know that the same belongs to defendant and when he contacted the defendants and requested the defendants to remove the animals, however, the defendant in collusion with his family members and anti social elements alongwith Sh Suresh Kumar, Rajbir singh, Phool Kumar, Mahender Singh, Smt Suresh Devi, Ishwar Singh and Raghubir Singh attempted to manhandle and humiliate the plaintiff and extended threats of killing the plaintiff.
Page No. 4/738. It is further the case of plaintiff that he made complaints to the police on 13.11.2005 and therefore number of complaints in this regard were made to the police and ultimately he filed a complaint case against the defendants and others on 22.12.2006 and the same is pending adjudication in the court of Sh. Sanjeev Kumar, MM, Patiala House, New Delhi which is fixed for 13.07.2007.
9. It is further the case of plaintiff that on 23.07.2006 he visited the defendant and requested him to remove his belongings and to hand over the vacant and peaceful possession of the said plot, on which the defendant requested the plaintiff to give six month period for vacating and handing over the plot to the plaintiff and the plaintiff considering the problem of the defendant agreed for the same subject to payment of Rs 5000/- per month as damages for which the defendant agreed.
10. It is further stated that on 07.01.2007 the plaintiff through respected persons of the village requested the defendant to vacate the premises, however, the defendant kept on lingering the matter. He again visited the defendant and other unauthorized occupants of other plots on 11.02.2007, 31.03.2007 and 12.05.2007 but in vain. Ultimately, the plaintiff served a legal notice upon the defendant through his advocate on 14.07.2007 sent through speed post thereby calling upon the defendant to hand over the possession of the suit plot No. 91 Page No. 5/73 and to pay damages @ Rs 5000/- per month for the last three years within a period of 15 days from the date of notice but the defendant failed to abide by the legal notice. Hence, the present suit. As already stated above, the plaintiff prayed for the relief of possession, directing the defendant to handover the vacant possession of plot No. 91 village Badusarai specifically shown in red color in the site plan annexed with the suit and also for relief of damages @ Rs 5000/- per month for illegal use of suit property for the last three years from the date of filing of the suit with further directions to pay Rs 5000/- per months as mesne profits during the pendency of the suit until the satisfaction of the decree with further relief of permanent injunction.
11. Summons for settlement were issued to the defendants.
12. The defendant in written statement had taken the preliminary objections regarding the maintainability of the present suit and also contended that the plaintiff has not come before this court with clean hands and is in guilty of suppressing the true material and correct facts.
13. It is the version of the defendant that he had purchased the land admeasuring 900 (sq yds) comprising khasra No. 19/14 situated in village Badusarai, New Delhi from the plaintiff for consideration and the plaintiff executed agreement to sell, GPA, receipt and affidavit etc all dated 11.11.1987 and on the same day, the plaintiff delivered actual physical Page No. 6/73 possession of the said plot to the defendant and the defendant also constructed a boundary wall, four pucca rooms, latrine- bathroom, kitchen, cowsheds and also taken the electricity connection in his name in said plot and he is in actual physical possession of the suit property without any disturbance from any corner and the plaintiff since the date of purchase and therefore he is the legal and true owner of the same and residing therein with his family members. It is further the contention of the defendant that he had constructed the above said plots was within the knowledge of the plaintiff who had been frequently visiting the area where the plot in question is situated and the construction being raised by him.
14. It is further the contention of the defendant that the plaintiff had also filed the civil suit bearing no. 460/1995 tilted as Trilok Chand Sharma v. Sh Mahender Singh & Ors which is still pending disposal in the court of Sh. Naresh Lakka, Civil Judge, Delhi and in the said suit the plaintiff on 25.05.2004 filed an affidavit and in the said affidavit the plaintiff had specifically admitted that he had already sold the entire land of Khasra No. 19/14 situated at revenue state of Village Badusari, New Delhi and he also admitted that since then he is not in possession of any part of the land bearing Khasra no. 19/14. The said admission on part of the plaintiff is a judicial admission and in case the plaintiff rescind from the said admission then it would amount to willful contempt of Page No. 7/73 court.
15. It is further the contention of the defendant that in the suit bearing No. 460/95, a site plan which had been filed in the year 1991 by the plaintiff and in his examination in chief exhibited the same as exhibit No. PW1/E, the land admeasuring 900 sq. yards (which is the subject matter of the present suit) is shown in the ownership and in possession of the defendant and in the said site plan the plots which are in possession of Sh. Rattan Singh admeasuring 2500 sq yds +500 sq. yards, plot admeasuring 1500 sq. yards in possession of Sh. Mahender, Ishwar singh, Surender, Raghubir and Phool Singh, plot admeasuring 300 sq. yards is in possession of Sh. Phool Singh s/o Dhani Ram, plot measuring 500 sq. yards in possession of Sh. Balwan Singh, plot measuring 1000 sq. yards in possession of Smt. Ram Kumar, plot admeasuring 500 sq yards is in possession of Sh. Randhir Singh, plot admeasuring 500 sq. yards is in possession of Sh. Ranbir Singh, plot admeasuring 200 sq. yards is in possession of Sh. Ran Singh are also shown and therefore, in the present plaint the plaintiff has wrongly stated that the defendant has trespass over the suit land in the year 2004. It is the case of the defendant that in Village Badusrai the consolidation proceedings are going on since the year 1996 in the land bearing khasra No. 19/13, 19/14 and 19/18, the plaintiff alongwith his father in law Sh. Ram Niwas carved out an unauthorized colony in the year 1990 and Page No. 8/73 on the spot, there was/ is no demarcation between the Khasra No. 19/13 ,19/14 and 19/18 of Village Badusarai, New Delhi and they had sold the entire land to different persons including the answering defendants and all of them had built up their residential houses over the said land. It is further contended by the defendant that the road were also left in the authorized colony in the area 800 sq. yards and the said area is fully electrified having pucca road etc., and other civic amenity.
16. It is further contended that adjacent to the land of the plaintiff bearing khasra No. 19/13, 19/14 and 19/18 the land having khasra No. 11/9, 10,11,12,19,20,24, 19/15,19/22, 23/2,3,3,7,9,10,24/1,2,3,6,7,9 and 44 are situated and unauthorized colony developed thereon which is also having the community centre, primary school, DESU Transformer, Water pump,Harijan Chopal and a Barat Ghar. In the said unauthorized colony also plots had been sold to agreement to sell, GPA etc., and therefore, their names have not been entered into the revenue record and in the revenue records are still in the name of the original bhumidars who have sold the plots in the unauthorized colony. In the said unauthorized colony more than 100 families are residing.
17. It is further the case of the defendant that in the consolidation proceedings the houses of the persons residing in the said unauthorized colony came within the phirni of Village Badusarai and the plots wherein the above said persons have Page No. 9/73 built up their residential houses are treated as scheme kabiz in the consolidation proceedings. As in the said area all the facilities are available and because road are already in existence there is no need to cut out the mujrai and the in scheme it is also decided that bhumidhars and non bhumidhars who have their built up house within the phirni of the village that may be treated as a scheme kabiz.
18. It is further contended by the defendant that it is an admitted fact that the plot No. 91 falls in pre consolidation land bearing khasra No. 19/14 (3-0). It is very pertinent to mention that the plaintiff in suit No. 460/95 had filed an affidavit dated 25.05.2004 and in the site plan which is already exhibited in the said affidavit as Ex PW1/E, the possession of the defendant over the plot admeasuring 900 sq. yards is shown in his examination in chief and in the paragraph No. 4 of the affidavit, the plaintiff admitted that he had already sold the entire three bighas land which is falling in Khasra No. 19/14 of Village Badusarai and in his cross examination in the said suit the plaintiff specifically admitted that :-
(a) the plaintiff has lastly visited the land in question in the year 1990;
(b) Now the entire land i.e. Khasra No. 19/13/1, 19/14 and 19/18 of village badhusarai is fully built up colony and more than 10 -12 families are residing there;Page No. 10/73
(c) Over the land which the plaintiff had sold out of Khasra No. 19/14 and 19/18 presently a colony is residence and the plaintiff is not in a possession of any part of Khasra No. 19/13/1, 19/14 and 19/18;
(d) The plaintiff also admitted that on the spot the land bearing Khasra No. 19/13, 19/14 and 19/18 are adjacent to each other and there is no demarcation of the said Khasra Nos. of the land.
19. It is further the contention the defendant the plots bearing new Khasra Nos. 88 to 95, 97 and 99 which were carved out of the land bearing Khasra no. 19/13, 19/14 and 19/18 were in existence prior to the year 1990 prior to the commencement of the consolidation proceedings as the same are carved out by the plaintiff and his father in law namely, Sh. Ram Niwas and there were metal road across all the plots and all basis civil amenities provided by the MCD in the year 1995-1996.
20. That during the consolidation proceedings a report was prepared by the consolidation officer with regard to above plots stating there in that all the plots are built up and people are residing in the said houses. It is also stated that those khasra numbers which were built up were treated as scheme kabiz and same is also shown in the books of owner and possession and same may be shown as possessors with their Page No. 11/73 name in the plots possessed by them.
21. That as per report of consolidation staff and Halka Patwari, it is also mentioned that the new Khasra Nos. 96 and 98 are pertaining to the road/ rasta which fall over the Khasra no. 19/13, 19/14 and 19/18 and further the case of the defendant that consolidation officers also found that in the above said land the colony has already in existence and divided in various plots which were sold to different peoples whose name are recorded in the karwai register after the consolidation and the above said land had been included in lal dora abadi in the village and all the registering houses/ plots were treated as kayami and the occupiers of the said plots were given different numbers which are from 88 to 102 and the numbers 96 and 98 are for rasta.
22. Lastly, it is the contention of the defendant that as most of the plots were sold by the defendant and his father in law through GPA, Agreement to sell etc therefore, the names of the respective purchasers were not mutated in the revenue records and said land remained in the name of the plaintiff and his father in law in the revenue record. Now the contention of the plaintiff has become malafide and he wants to take the undue benefits of the revenue record which shows his name on the record. It is a settled law of land, that mere entry in the revenue record does not create any right, title or interest of a person.
23. It is further the contention of the defendant that in suit Page No. 12/73 bearing No. 460/95 on 07.11.2001 the defendant alongwith other persons filed an application under Order I, Rule 10 CPC read with Section 151 CPC and in the said application the defendant specifically stated that the defendant had purchased the land measuring 900 sq. yards by way of Agreement to Sell, Power of Attorney etc. from the plaintiff and also stated that the defendant is in possession of the said plot and alongwith the said application the defendant also filed the agreement to sell, GPA etc all dated 11.11.1987 executed by the plaintiff in favour of the defendant. However, the plaintiff never challenged the said documents till the filing of the present suit and the suit filed by the plaintiff is not maintainable and hit by provision of Section 41 (h), (i) and (j) of the Specific Relief Act and therefore, same is liable to be dismissed.
24. In reply on merits the defendant denied all the averments made by the plaintiff in his plaint except to the extent that the plaintiff had purchased the suit property in year 1985 and his name was mutated in the revenue records vide khatoni No. 9/17 min 1987-1988.
25. It is the submissions of the defendant that plot Nos. 88 to 99 are already in existence before the commencement of consolidation proceedings. On 29.07.2005 the consolidation officer also passed an order bearing Resolution No. 22 wherein he treated the plot No. 88 to 99 as kayami and the said resolution plot No. 91 is shown in possession and ownership of Page No. 13/73 the defendant. The passbook issued to the plaintiff has no authenticity the plaintiff has procured the passbook in collusion with the revenue officials.
26. In view of the above facts the defendant prayed for the dismissal of the suit with the exemplary costs.
27. In replication the plaintiff denied the averments of the defendant and reaffirmed the stand taken by him in the plaint and it was submitted by the plaintiff that plot No. 88 to 99 were allotted during the consolidation proceedings by the Assistant Consolidation Officer and was part of Khasra No. 19/13/1. It is further submitted by the plaintiff that the application under Order I, Rule 10 CPC filed by the defendant in suit No. 460/95 was dismissed by the concerned court and he never admitted the execution of alleged documents in respect of suit land (plot) in favour of the defendant.
28. On the basis of the pleadings of parties and the submissions advanced, the following issues were framed vide order dated 25.10.2018:
1)Whether the defendant is in possession of the suit property since about 11.11.1987 on execution of Agreement to Sell, GPA, Receipt and affidavit all dated 11.11.1987 in his favour by Trilok Chand Sharma (the plaintiff herein)? ....OPD
2) Whether the suit filed by plaintiff is barred by the law of limitation? ...OPD
3) Whether the jurisdiction of civil court is barred under Page No. 14/73 Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation), Act 1948 in respect of the suit property? ...OPD
4) Whether the defendant has acquired any right in the suit property on being treated as scheme kabiz of the suit property, during the consolidation proceedings? ...OPD
5) Whether the defendants have become the owner of the suit property by way of adverse possession? ...OPD
6) Whether the plaintiff is entitled for decree of possession of the suit property against the defendant? ...OPP
7) Whether the plaintiff is entitled for decree of permanent injunction against the defendant? ...OPP
8) Whether the plaintiff is entitled for a decree of recovery of damages @ Rs.5000/- per month for the period of three years prior to the date of filing of this suit i.e. 14.08.2007? ...OPP
9) Whether the plaintiff is entitled for mesne profits @ Rs.5000/- per month for the period of pendency of the suit up to the satisfaction of the decree? ...OPP
10)Whether the defendant is a bona fide purchaser of the suit property under khasra no,.19/13/1, 19/14 and 19/18 constituting part of the extended lal dora during consolidation proceedings? ...OPD
11) Whether the plaintiff has suppressed the material facts and material documents from this court? ...OPD
12) Relief, if any Page No. 15/73
29. In order to prove his case, plaintiff during his evidence, examined five (5) witnesses in all.
30. The plaintiff entered in witness box as PW-1 and tendered his evidence by way of affidavit Ex PW1/A and reproduced the facts already stated by him in his plaint and relied upon the below mentioned documents, he was cross examined at length by the counsel for the defendant and was discharged:-
Sl. Description of document(s) Exhibit/Mark No. No.
1. Sale Deed dated 02.12.1985 Ex.PW1/1(OSR)
2. Revenue report vide khatoni Ex.PW1/2 No.9/17min. Year 1987-88
3. Pass book by consolidation officer Ex.PW1/3 4. Kayami register Ex.PW2/1 5. Site plan Ex.PW1/5
6. Copy of case file of complaint case Mark-A bearing CC No.428590/16 titled Trilok chand v. Kundan Lal before Shri Siddharth Malik, Ld. MM, South West, Dwarka
7. Copy of FSL report dated 29.10.2013 Mark-B and C and 25.05.2014
8. Copy of summoning order dated Mark-D 11.02.2015
9. Legal notice dated 14.07.2007 Ex.PW1/10
10. Postal receipt dated 14.07.2007 Ex.PW1/11 Documents put to plaintiff during Cross examination
1. Certified copy of evidence by way of Ex.PW1/DX1 affidavit tendered, examination in (Colly.) chief dated 25.05.2004 and cross Page No. 16/73 examination recorded on 26.02.2005, 01.09.2005 and 13.10.2005 in Suit No.1109/16 (460/95)
2. Site plan bearing endorsement of Ex.PW1/DX2 Ex.PW1/E dated 26.02.2005
3. Application under Order I, rule 10, Ex.PW1/DX3 CPC
4. Khasra girdawaries for the year 1995- Ex.PW1/DX2 96, 1996-97, 1997-98, 2000-2001 (Colly) (Khasra No.19/13) and 19/14), 1989-
1990 (Khasra No.19/13/1, 19/14 and 19/18) and 2001-02 (Khasra No.19/18) 5 Halqua patwari report, register Ex PW1/DX-3 Karwahi Chakbandi and Khatuni of the (Colly) year 1990-1991 There is no documents exhibited as Ex.PW1/4, Ex.PW1/6, Ex.PW1/7, Ex.PW1/8 and Ex.PW1/9 as mentioned in evidence by way of affidavit Ex.Pw1/A.
31. PW-2, Rajesh Sharma, Halqua Patwari, Village Badusarai, Tehsil Kapashera, District South West Delhi appeared and proved the Khatauni Pamaish register pertaining to the year 2015-2016 as Ex. PW2/A.
32. PW-3 Sh.Pamod Kumar singh, Assistant Ahalmad from the court of Sh. Siddharth Malik, Ld. MM, Dwarka Courts, New Delhi has appeared and proved the following documents:
Sl. No. Descripiton of document(s) Exhibit/Mark No.
1. Summoning order dated Ex.PW3/1(OSR) 11.02.20215 passed in CC No.428590/16, PS Najafgarh Page No. 17/73
2. Investigation report filed by Ex.PW3/2(OSR) SI Veer Singh PS Najafgarh
3. FSL report which consists part Ex.PW3/3(OSR) of Ex.PW3/2
4. Complaint lodged by plaintiff Ex.PW3/4 Trilok Chand under Section 200 Cr.PC bearing CC No.428590/16
33. PW-4 Sh Manish Kanungo, Record room from SDM office Najafgarh, New Delhi appeared and proved the following documents:-
Sl. No. Descripiton of document(s) Exhibit/Mark No.
1. Extract of khatoni chakbandi Ex.PW4/A(OSR) pertaining to khata No.14/9min.
2. Extract of register karwahi Ex.PW4/B(OSR) pertaining to kh.No.88 to 99
3. Extract of masavi of village Ex.PW4/C(OSR) Badu Sarai
34. PW-5 SI Veer Singh appeared before this court and proved the documents i.e. certified copy of cross-examination of PW5 dated 09.01.2017 in CC No.428590/16 and same is Ex.PW5/DX1.
35. Thereafter, plaintiff closed his evidence and matter was fixed for defendant evidence.
36. In order to prove its case defendant examined five witnesses Page No. 18/73
37. The defendant entered in witness box as DW-1 and tendered his evidence by way of affidavit Ex DW1/A and relied upon the below mentioned documents:-
Sl. No. Description of document(s) Exhibit/Mark No.
1. Certified copy of evidence by Already way of affidavit tendered, Ex.PW1/DX1(Colly.) examination in chief dated 25.05.2004 and cross examination recorded on 26.02.2005, 01.09.2005 and 13.10.2005 in Suit No.1109/16 (460/95)
2. Site plan bearing endorsement of Already Ex.PW1/DX2 Ex.PW1/E dated 26.02.2005
3. Application under Order I, rule Already Ex.PW1/DX3 10, CPC
4. Electricity bills of electricity Ex.DW1/1(Colly) meter installed in the suit (OSR) property
5. Khasra girdawaries for the year Already 1995-96, 1996-97, 1997-98, Ex.PW1/DX2(Colly) 2000-2001 (Khasra No.19/13) and 19/14), 1989-1990 (Khasra No.19/13/1, 19/14 and 19/18) and 2001-02 (Khasra No.19/18)
6. Halqua patwari report, register Already Ex.PW1/DX-
karwahi chakbandi and the 3(Colly) khatauni of the year 1990-91
7. Photocopies of GPA sale Mark-A(Colly.) documents dated 11.1.1987 Documents put in Cross examination to DW-1
1. Reply dated 30.07.2007 to legal Ex.DW1/PX-1 notice dated 14.07.2007 Page No. 19/73
2. Copy of consolidation passbook Ex.DW1/2(Colly.) issued in the name of defendant (OSR) which contains relevant khasra numbers along with map and other relevant entries
38. DW-2 Satish Kumar and DW-3 Attar Singh appeared before this court and tendered their evidence by way of affidavit Ex DW2/A and Ex DW2/B, respectively and proved their affidavit Ex DW2/1 and Ex DW3/1(OSR).
39. DW4 -Rakesh Kumar, Kanungo Sub Division Najafgarh appeared in witness box and proved the following documents:
Sl. No. Descripiton of document(s) Exhibit/Mark No.
1. Register Karwahi chakbandi Ex.DW4/1(OSR) bearing Khasra Nos.19//13/1 and 14 of village Badu Sarai
2. Khasra Girdawari pertaining to Ex.DW4/2(OSR) year 1989-1990
3. Khasra Girdawari pertaining to Ex.DW4/3(OSR) year 1995-1996
4. Khasra Girdawari pertaining to Ex.DW4/4(OSR) year 1996-1997
5. Khasra Girdawari pertaining to Ex.DW4/5(OSR) year 1997-1998
6. Khasra Girdawari pertaining to Ex.DW4/6(OSR) year 1998-1999
7. Khasra Girdawari pertaining to Ex.DW4/7(OSR) year 1999-2000
8. Khasra Girdawari pertaining to Ex.DW4/8(OSR) year 2000-2001
40. DW-5 Unique Kaushik, Jr. Asst of Financial Page No. 20/73 Commissioner, Commissioner Civil Lines, Delhi appeared in witness box and proved the Patwari report dated 29.02.2007 filed in case No.205/07 before Financial Commissioner Delhi along with copy of register karwahi chakbandi dated 17.02.2007 and copy of khatauni pertaining to the year 1990- 1991 and same is Ex.DW5/A (running into 5 pages) (Colly.) (OSR).
41. I have heard the Ld. Counsel for both the parties at length and they are argued in tandem with the pleadings and evidence led on behalf of the respective parties and gone through the case file.
ADDITIONAL FACTS:
42. This court deems appropriate that before giving its issue wise finding some additional facts need to be reproduced for the just decision of this case i.e. Apart from the present suit filed by the plaintiff against the defendant, the plaintiff preferred three other suits regarding the other plots converted after consolidation of khasra No. 19/13/1 and 19/14, against three other persons the details of the suits is as under:-
(i) Civil suit No. CS DJ ADJ No. 15756/ 2016 titled as Trilok Chand v. Mahender Singh & Ors regarding possession/ other reliefs of plot No. 97 measuring 1550 sq. yards situated at Village Badusarai Delhi. It is also relevant to mention that before filing the above suit, the plaintiff initially filed the suit Page No. 21/73 in the year 1991, for permanent injunction bearing no.
460/1995 against the Mahender Singh and his four brothers from restraining them to interfere in the land measuring 1500 sq yds in khasra No. 19/13/1 on the ground that the defendants are trying to take the forcible possession of the. In the said suit the plaintiff filed the site plan Ex PW1/E showing the possession of certain persons in his property same was confronted to him during cross examination in the present suit, which is admitted by the plaintiff and the same is exhibited Ex PW-1/ DX-2. The plaintiff was also tendered his evidence by way of affidavit dated 25.05.2004 and the plaintiff was cross examined on 26.02.2005, 01.09.2005 and 13.10.2005 in the said suit, the plaintiff was confronted with the said testimony in the present suit during cross examination which is admitted by the plaintiff and the same is exhibited as Ex PW1/DX-1 (Colly) and also confronted with application under Order I, Rule 10 CPC filed by the land holders including the defendants in the present suit as well in the connected suits marked as Ex PW1/DX-3.
(ii) Civil Suit bearing No. - CS DJ ADJ No. 15757/2016 titled as Trilok Chand v. Suresh Devi w/o Sunder Lal regarding possession of plot No. 94 measuring 400 sq. yds situated at Village Badusarai Delhi, and
(iii) Civil Suit bearing No. - CS DJ ADJ No. 15758/2016 titled as Trilok Chand v. Suresh Kumar and Anr. regarding Page No. 22/73 possession of plot No. 88 measuring 150 sq yds situated at Village Badusarai Delhi.
FINDING
43. Before proceeding further for the purpose of better understanding of the case, from the pleadings of the parties the following facts emerge in brief:
44. Case of the plaintiff:
a. He is the owner of land measuring 7 bigha out of Khasra no. 19/13/1 (4 bigha-0 biswa) and 19/14 (3 bigha-0 biswa) situated at village Badusarai, Tehsil Najafgarh, New Delhi.
b. He sold some of the plots out of the said land. c. As property dealers sold plots by carving out residential colonies, the plots sold by him also stands converted into residential plots.
d. Consolidation proceedings commenced in the year 1996 in village badusarai, however, due to litigation, it effectively started in the year 1994 and concluded in the year 1995.
e. His land came within the extended lal dora abadi of village badusarai, Teh. Najafgarh, New Delhi. f. His land was converted into plots and new Khasra no. 88 to 99 was given and the consolidation officer issued Page No. 23/73 passbook in his name.
g. Out of plot nos. 88 to 99, he sold plot no. 89, 90,92,93,95 and 99 to the respective buyers, who are in possession of the same by raising super structure therein.
h. The remaining plots bearing Nos. 88,91,94,96,97 and 98 are in the sole and absolute ownership of the plaintiff and he with the help of family members and the friends raised the boundary wall and constructed one room and temporary tin shed in remaining four plots situated in the revenue state of Village Badusarai.
i. Villagers in order to grab his valuable property colluded with the revenue officials and got their name entered in Register Karwai Chakkbandi in the year 2005. j. Defendant on the basis of some forged and fabricated documents illegally trespassed in plot no. 91 measuring 950 sq. yards somewhere in 2004.
k. He came to know about the same in the year 2005 when he visited the suit property.
l. He requested the defendants to vacate the plot but in vain.
m. Police complaint was made on 13.11.2005 and thereafter as no action was taken by the police, he filed complaint case dated 22.12.2006 and the same is pending in the Court of Ld. MM, Dwarka.
Page No. 24/73n. He made visits to the suit plot on various dates but in vain and ultimately legal notice was served upon them on 14.01.2007 to vacate the suit property and pay mesne profit @ 5000 p.m. for illegal use and occupation charges.
45. Case of the Defendant.
a. Defendant had not denied the ownership of the plaintiff over the land measuring 7 bighas.
b. However, it is the stand of the defendant that alongwith plaintiff, his father-in-law namely Ram Niwas also purchased land measuring 3 bigha-5 biswa under Khasra no. 19/18.
c. Their land was adjacent and form one common land and no demarcation of the land ever took place and both the plaintiff and his father in law sold the entire land measuring 10 bigha-5 biswa by carving out a unauthorized colony to various persons including the defendant way before the commencement of consolidation proceedings.
d. The defendant purchased the land measuring 900 sq. yards comprising in Khasra no. 19/14 from the plaintiff by way of GPA, Agreement to sell, receipt, affidavit etc. all dated 11.11.1987 and taken the possession of the land on the same day and since then he is in peaceful possession of the suit plot.
Page No. 25/73e. As the entire colony was already in existence before the commencement of consolidation proceedings and majority of the land by way of unauthorized colony was sold through GPA sales and therefore, the names of the respective buyers were not entered in the revenue record and ownership of land still reflecting under the name of the plaintiff.
f. In the consolidation proceedings, after giving new Khasra numbers 88 to 99, the ownership of the plaintiff was shown but as the purchasers of the plots sold by plaintiff were already in possession their names were mentioned in the Register Karwai Chakkbandi as Kayami (Possessors).
g. Plaintiff already filed a Civil Suit no. 460/1995(1991) before the Civil Sub Judge, Tis Hazari, Delhi in the year 1991, against Mahender Singh and his brothers all sons of Rattan Singh and the plaintiff admitted in his plaint that he had already sold the entire land under Khasra no. 19/14 and one bigha land under Khasra no. 19/13 and as on the filing of the said suit he is only the owner and in possession of land measuring 3000 sq. yds. i.e. 3 bigha. h. The plaintiff in CS. 460/1995, filed a site plan and tendered the same in evidence as Ex. PW1/E, in which he had shown the defendant in possession of plot measuring 900 sq. yards, apart from other purchasers of Page No. 26/73 the plots in the land measuring 7 bigha.
i. The plaintiff is trying to take advantage of entries made in his name as owner in the consolidation passbook and his intention has become malafide.
Examination of the plaintiff as PW-1.
46. Before giving issue wise finding, it is relevant to produce the testimony of the plaintiff who entered the witness box as PW-1 and was cross-examined at length.
47. Plaintiff tendered his evidence by way of affidavit Ex PW1/A wherein he reiterated the stand taken by him in the plaint and is not reproduced for the sake of brevity.
48. In his cross examination the plaintiff admitted that his father-in law Ram Niwas in the year 1985, simultaneously on the same day also purchased the property admeasuring 3 bighas and 5 biswas situated under Khasra No. 19/18 in Village Badusarai. He further admitted that Khasra No. 19/13/1 measuring 4 bighas, Khasra No. 19/14 measuring 3 bigha and Khasra No. 19/18 measuring 3 bigha 5 biswa are adjoining to each other and formed contiguity. He further admitted that no demarcation of the land under Khasra No. 19/13/1, 19/14 and 19/18 has been done till date (20.03.2019, the date of deposition).
49. During cross examination he further admitted that plot measuring 2920 sq. yards out of Khasra No. 19/18 measuring 3 Page No. 27/73 bigha 5 biswa was sold to Ratan Singh father of Ishwar Pahlwan on 05.10.1989 and he further deposed that five brothers brought land measuring 1500 sq. yards under Khasra no.19/18 and these five brothers informed my father in law that there is dispute among themselves and they will buy land measuring 2920 sq. yards in the name of their father within Khasra No. 19/18 and they would return him the power of attorney, however, despite purchase of 2920 sq. yards in the name of their father they did not return the power of attorney to my father in law. In the latter part of the cross examination plaintiff admitted that Sh. Ishwar Pahlwan is occupancy and in possession of land ad-measuring 1500 sq. yards in Khasra No. 19/13/1. In the voluntary statement he submitted that Mahender Singh, Ishwar Singh, Phool Singh, Sunder and Rajbir are showing the papers of land under Khasra No. 19/18 signed by Ram Niwas as land under Khasra no. 19/13/1 and all these persons are in forceful occupation of land. The plaintiff further admitted that on the same day when Ratan Singh purchased 2920 sq yds another sale deed of land measuring 1080 sq. yards comprised in Khasra no. 19/18 and 19/13/1 was executed in the name of Smt. Shakuntala w/o of Col. Dhaiya. In voluntary statement the plaintiff submitted that out of 1080 sq. yards, 580 sq yards was from Khasra No. 19/18 and balance 500 sq yds was from Khasra no. 19/13/1. He denied the suggestion that area ad-measuring 750 sq. yards Page No. 28/73 was sold under Khasra no. 19/13/1. In answer to the question put to the plaintiff that when after sale of 2920 sq. yards in favour of Rattan Singh, only land of 330 sq. yards was left under Khasra No. 19/18, how you could sell 580 sq yards under Khasra No. 19/18 to which the plaintiff simply replied that he do not know how much land Ram Niwas sold, he only told me that he had purchased 3500 sq. yards and not 3250 sq yards.
50. In cross examination he further admitted that on 20.06.2002 he sold 400 sq. yards under Khasra No. 19/13/1 to one Angoori Devi r/o Bersari and the possession of the 400 sq. yards land was handed over to her. In voluntary statement plaintiff submitted that land to Angoori Devi was sold under Agreement to Sell and it was written that I will execute the sale deed when she wants to get it registered.
51. In his further cross examination dated 22.03.2019, the plaintiff initially denied about the suggestion that there is rasta opposite to the plot of Mahender and his brothers and Dharambir Singh and Rohtash Singh. However, in voluntary statement he submitted that it is true that there is rasta on both the locations mentioned above. Two plots no. 96 and 98 were given to me during chakbandi and there was no rasta. The five brothers Mahender Singh, Ishwar Singh, Phool Singh, Sunder and Rajbir had taken illegal possession of plot No. 97 and carved out a rasta. He further submitted that plot No. 96 is 250 Page No. 29/73 sq. yards and plot No. 98 is 400 sq. yards. In answer to the question put to him the plaintiff admitted that combined area under plot No. 96 and 98 is more than 1300 sq. yards and both are rastas. He denied the suggestion that Rajbir and Suresh are in possession as owner of land ad- measuring 250 sq. yards situated in Khasra No. 19/14. In voluntary statement he submitted that plot No. 88 under their occupation as per chakkbandi pass book is 150 sq. yards. They are in illegal possession of land exceeding 150 sq. yards under Khasra No. 19/14.
52. The plaintiff in his cross examination further admitted that he sold plot No.89 in Khasra No. 19/14 measuring 500 sq. yards to Ranbir Singh s/o Sher Singh. In voluntary statement he stated in the agreement it was written that the sale deed will be registered when the case will become final. At this stage, court question was asked to the plaintiff to tell about the particulars of the agreement stated by him in voluntary statement. In answer to the court question, the plaintiff deposed as follows:
" There is stay order passed by Tis Hazari court with regard to land under khasra No. 19/13, 19/14 though he do not know the exact date of stay but it was somewhere in the year 1991 . He do not remember the date of signing the agreement to sell but the agreement to sell was signed and executed between Ranbir Singh and brother of Ranbir Singh. Both of them entered Page No. 30/73 agreement with regard to 500 sq. yards each. The agreement with both of them was of Rs 50,000/-. I do not signed any and execute any other document other than agreement to sell to Ranbir Singh s/o Sher Singh and Randhir s/o Ram Swaroop with regard to plot No. 89 and 90 respectively under Khasra No. 19/14 and further submitted that he handed over the possession to both of them at the time of signing of agreement.
53. The plaintiff further admitted that he sold plot No. 92 measuring 900 sq. yards to Ram Kaur d/o Ichha Ram in Khasra No. 19/14. He further admitted that he had sold plot No. 93 measuring 550 sq. yards to Surender Kumar s/o Mukhtiyar Singh, Balwan Singh s/o Mange and Ravinder Kumar s/o Om Prakash. He denied the suggestion that plot No. 93 is under Khasra no. 19/14. In voluntary statement he stated that the same is in Khasra No. 19/13/1.
54. He further admitted that he has sold plot No. 95 to Rohtas s/o Phool Singh measuring 300 sq. yards and the same is under Khasra No. 19/13/1 and not 19/14.
55. The plaintiff further admitted that it is correct that his land ad-measuring 7 bighas under Khasra No. 19/13/1 and 19/14 neither increased nor decreased after completion of chakkbandi proceedings. He denied the suggestion that after mujrahi his land holding decreased by 800 sq. yards. However, the court made the observations that from Ex PW1/3 the total area land before consolidation proceedings --- Chakkbandi Page No. 31/73 was 6 bighas and 5 biswas and after consolidation proceedings the chakkbandi was 6 bighas 17 biswas.
56. The plaintiff further admitted that he has filed a suit for permanent injunction in the year 1991 in Tis Hazari court. The plaintiff was confronted with the certified copy of evidence by way of affidavit tendered in examination in chief dated 25.05.2004 and cross examination recorded on 26.02.2005, 01.09.2005 and 13.10.2005 in suit No. 1109/06 (new number) and bearing previous suit No. 460/95 dated 16.12.1995/1991 marked as Ex PW1/DX-1 (Colly), site plan bearing endorsement of Ex PW1/E dated 26.02.2005 is marked as Ex PW-1/DX-2 and application under Order I, Rule 10 CPC marked as Ex PW1/DX-3.
57. In answer to the question put to the plaintiff, the plaintiff admitted that the contents of paragraph No. 4 of his evidence by way of affidavit in Ex PW1/DX-1 (colly) are correct, wherein he had stated that he has sold the whole land under Khasra No. 19/14.
58. Attention of the plaintiff was drawn to point C to D of Ex PW1/DX-1 (Colly) wherein he admitted that 380 sq. yards in plot No. 94 was sold to Suresh Devi as admitted by him in his cross examination dated 01.09.2005. In voluntary statement the plaintiff tried to deny the statement on the pretext that the document during recording of his statement was shown to him from a distance and therefore, I wrongly answered it as yes. In Page No. 32/73 his further cross examination he admitted that he has never filed any application before the concerned court seeking the rectification of the error committed during the earlier cross examination on 01.09.2005.
59. The plaintiff in his further cross examination on 29.03.2019 admitted that as on today he is not in possession of any land of suit property and he last visited the suit property in the year 2005.
60. Plaintiff admitted the site plan bearing endorsement of Ex PW1/E dated 26.02.2005 filed by him in suit No. 460/95 filed by him before Tis Hazari Court in the year 1991. He deposed that site plan was prepared by draftsman upon his instructions in Tis Hazari Court. In answer to the question he admitted that in the site plan he has shown a plot of land in the blue colour ink measuring 1500 sq. yards in the names of Sh. Mahender, Ishwar Singh, Surender, Raghubir and Phool Singh, all sons of Rattan Singh as they were in possession at the time of preparation of site plan. He further admitted that in his cross examination Ex.PW-1/DX-1 dated 13.10.2005 that he correctly deposed that the land measuring 1500 square yards is under Khasra no. 19/13/1, subject matter of suit no. 460/1995 was lying vacant till the year 1990. He further admitted that same is plot no. 97.
61. He further admitted that in the site plan a plot ad- measuring 950 sq. yards reflects in the name of Kundan (the Page No. 33/73 defendant herein). In voluntary statement the plaintiff submitted that the land/plot of 950 sq. yards is under Khasra No. 19/14 and presently it is plot No. 91.
62. The attention of the witness is also drawn to point A to point B in the site plan and question was asked to tell who is in possession of the land mentioned at point A to point B. In answer to the question, plaintiff admitted in possession of Suresh Devi. In voluntary statement the plaintiff submitted that at the time when the site plan was prepared the land under point A to point B in site plan was vacant and Suresh Devi w/o Surender on the basis of bogus and forged documents has become occupant/ owner of said land. The plaintiff further admitted that Ran Singh is in possession of plot measuring 200 sq. yards reflecting in the site plan from point C to point D. He further admitted that Ran Singh is the father of one of the defendants (arrayed as defendant in another suit filed along with this suit) namely, Suresh.
63. The plaintiff in his cross examination dated 04.04.2019 shown the General Power of Attorney dated 18.09.1986 filed by the plaintiff alongwith documents in suit titled as Trilok Chand Sharma Vs Mahender Singh bearing CS No. 15756/2016 (old suit No. 460/1995). In answer to the question the plaintiff admitted that it the same GPA about which he had earlier stated to not have been returned by the five brothers i.e. Ishawar Singh and etc to his father in law Ram Niwas. The Page No. 34/73 plaintiff in answer to another question, answered in affirmative that the GPA dated 18.09.1986 and affidavit dated 18.9.1986 was executed by his father in law Ram Niwas. The plaintiff further admitted that the sale deed executed in favour of Shakuntala Devi w/o Col. Dhaiya in which land measuring 1080 sq. yard comprised under Khasra. No. 19/18 and 19/13/1 was sold by him and his father in law and it bears their signatures.
64. In answer to the question that since 1989-1990 constructed houses and boundary walls are present in the entire land in question. The other villagers were in possession of all three Khasra Nos. 19/13/1, 19/14 and 19/18, the plaintiff denied the question and answered as follows:
In the year 1995 the five brothers Mahender and others tried to forcibly occupied the land under khasra No. 19/13/1 measuring 1500 sq yds. Thereafter I lodged a police complaint and also filed a civil suit against them. I was granted stay and there was construction undertaken on land on khasra No. 19/13/1. There was no construction on land under khasra No.19/13/1 and 19/14. I have no knowledge about khasra No. 19/18.
65. As the plaintiff during his cross examination admitted his evidence by way of affidavit dated 25.05.2004 and cross examination recorded on 26.02.2005, 01.09.2005 and 13.10.2005 in previous suit No. 460/95 marked as Ex Page No. 35/73 PW1/DX-1 (Colly) and the site plan bearing endorsement No. Ex PW1/E dated 26.02.2005 marked as Ex PW1/DX-2, it is relevant to reproduce certain important facts/ contents deposed by the plaintiff in civil Suit No. 460/95.
66. In his evidence by way of affidavit dated 25.05.2004, the plaintiff deposed that he has already transferred one bigha out of Khasra No. 19/13/1 and whole land i.e 3 bighas out of Khasra No. 19/14 and at present left with 3000 sq. yards i.e. 3 bighas in Khasra No. 19/13/1 shown in red colour in the site plan. He further deposed that the site plan is Ex PW1/E was prepared on his instructions and in his presence.
67. In cross examination dated 01.09.2005, the plaintiff deposed that he lastly visited the suit property only in the year 1990. The entire property in dispute is built up and 10-12 families are residing therein. He further admitted that as per aks-sizra Ex PW1/D-1, the Khasra mentioned in the above documents are adjacent to each other and also adjutant to the abadi of village Badusarai. He further admitted that the land measuring 1080 sq. yards was sold to Smt. Shakuntala vide sale deed Mark A out of Khasra no. 19/18 and 19/13/1 and only 150-200 sq. yards were from Khasra no. 19/13/1 and rest from Khasra no. 19/18. He further admitted that land measuring 496 sq. yards out Khasra No. 19/13/1 was sold to Sh. Varinder Singh and Sh. Ravinder Kumar on 19.05.1988 vide power of attorney Mark 'B'. Land measuring 300 sq. Page No. 36/73 yards out of Khasra No. 19/13/1 to Rohtash and Mahesh s/o of Phool Singh on 31.10.1990 vide documents Mark 'C' (collectively 6 pages). Land measuring 380 sq. yards out of Khasra No. 19/13/1 to Smt. Suresh on 04.06.1994 vide documents Mark 'D' (collectively 6 pages). Land measuring 1000 sq. yards out of Khasra No. 19/14 to Ram Kaur on 18.09.1986 vide documents Mark 'E' (Collectively 6 pages). Land measuring 500 sq. yards out of Khasra no.19/14 to Ranbir Singh s/o Sher Singh vide document Mark 'F' (collectively 6 pages) on 16.04.1987. Land measuring 500 sq yards out of Khasra No. 19/14 to Randhir Singh s/o Ram Swarup Singh vide document Mark 'F' (collectively 6 pages) on 16.04.1987.
68. The plaintiff further deposed that he filed the suit in 1991 and executed the above documents of sale prior to 1991 and even thereafter, he denied his knowledge about the fact whether the purchaser constructed houses on or not. He further admitted that the site plan Ex PW1/E is not correct as per site as upto date, however, in voluntary statement he stated that when the site plan was prepared, it was correct as per site and subsequent constructions have been made thereafter. He further admitted that the particular land which he had sold out Khasra no. 19/14 and 19/18 presently a colony has been in existence. He further admitted that at present (at the time of his deposition in cross examination) he is not in possession of any Page No. 37/73 part of land in Khasra No. 19/13/1 and 19/13/15.
69. In his further cross examination dated 13.10.2005, the plaintiff deposed that he cannot say that in the entire suit land the colony has been developed. He has not seen the suit property after the year 1990. He cannot say that on 01.11.1991 the unauthorized colony has already developed in the suit. He admitted that he and Ram Niwas carved out the unauthorized colony in village Badusarai. He further admitted the fact that "it is correct that to whom I sold the land through GPA, an agreement to sell etc, in those purchaser (sic) purchases the land has not been mutated in the revenue record. It is correct that I am no in possession of any land bearing khasra No. 19/13/1 and 19/14 of village Badusarai".
70. The plaintiff further admitted that the entire construction over the property had held much prior to year 1994. He further admitted that he have never taken any action against the person who had encroached upon my land. He further admitted that it is correct that land which is in possession of the defendants (i.e. Mahender, Ishwar Singh, Surender, Raghubir and Phool Singh) on the spot is having Khasra no. 19/18 of Village Badusarai. It is also correct that the defendants are not in possession of land bearing Khasra no. 19/13/1. The plaintiff further deposed that, I have right only to one plot of Khasra no. 19/14 but I cannot tell the measurement of the said plot.
Page No. 38/7371. It is pertinent to note that plaintiff during cross examination in the present suit as well as in civil suit no. 460/1995 denied the suggestion that he had sold the land to Kundan Lal, the defendant herein.
ISSUEWISE FINDING
72. This Court deems appropriate to decide Issue no.2 first, as the issue of limitation is a mixed question of fact and law and has direct bearing on the remaining issues.
ISSUE NO.2 Whether the suit filed by the plaintiff is barred by law of limitation? ... OPD
73. The onus to prove the present issue was on the defendant. It is settled law that onus can be discharged by a party by leading his own evidence or by demolishing the case of the opposite party during cross examination.
74. In the present case, during his cross examination the plaintiff specifically admitted the site plan Ex. PW1/E filed by him in civil suit No. 460/95 titled as Trilok Chand Vs. Mahender Singh & Anr as Ex. PW-1/DX2. He further specifically admitted that the suit No. 460/95 was filed in the year 1991. He further specifically admitted that the site plan was prepared at his instance. He further specifically admitted Page No. 39/73 as correct that in the site plan a plot measuring 950 sq. yards reflects in the name of Kundan (the defendant herein) marked in blue ink. In voluntary statement he further submitted that the above land (950 sq. yards) is in Khasra No. 19/14 and presently it is plot No. 91.
75. Plaintiff even during cross examination dated 22.03.2019 at page No.4 in the present suit, specifically admitted in answer to the question put to him that it is correct that he had sold the whole land under Khasra No. 19/14 and he had stated so at point No. A to B in his evidence by way of affidavit Ex PW1/DX-1 filed in civil Suit No. 460/95.
76. From the above deposition, without going into the question that whether the defendant is in possession of the suit property on the basis of GPA, Agreement to sell etc. dated 11.11.1987 alleged to be executed by the plaintiff, it stands proved that the defendant is in possession of the suit property since 1991 (as per site plan). Plaintiff further specifically admitted that plot No. 91 measuring 950 sq. yards falls under Khasra No. 19/14 and from the deposition of plaintiff it stands proved that at the time of filing CS. 460/1995 in the year 1991, he had already sold the entire land under Khasra No. 19/14 . He further specifically admitted in cross examination that till date (date of deposition) that he has not taken any action against the persons shown to be in possession of the land.
77. Further the plaintiff have not brought anyone from his Page No. 40/73 family or friends to prove that after the conclusion of the consolidation proceedings he with their help raised a boundary wall and constructed one room and temporary tin shed in remaining four plots situated including the suit plot.
78. The plea of the plaintiff that the defendant trespassed into the suit plot sometime in the year 2004 is not believable as how the plaintiff can raise boundary wall etc in 2005, while as per his own averment, the defendant trespassed sometime in 2004?
79. Therefore, from the testimony of the plaint himself, it stands established that the defendant is in possession of the suit plot even before the filing of the Civil Suit no. 460/1995 in the year 1991 and further it stands established that the suit plot falls under Khasra no. 19/14 and it is the case of the plaintiff himself that at the time of filing the Civil suit no. 460/1995 in the year 1991, he has already sold the entire land under Khasra no.19/14.
80. As per Article 65 of the limitation act, 1963, a suit on the basis of title can be filed within 12 years when the possession of the party becomes adverse.
81. In the present case once it is admitted and stands proved by the deposition of the plaintiff himself that the defendant is in possession of suit plot since 1991 and admittedly, the present suit for possession on the basis of title has been filed on 14.08.2007 by the plaintiff i.e. after a lapse of 16 years, Page No. 41/73 which is clearly shows that the suit of the plaintiff for recovery of possession is beyond the period of limitation and thus barred.
82. Therefore, as per Section 27 of the limitation act, 1963, not only the remedy but also the right of the plaintiff to seek possession stands extinguished.
83. Even though the suit is liable to be dismissed on the basis of the finding given by this court on issue No.2 i.e. the present suit is barred by law of limitation however, as per the mandate of Rule 2 Order XIV of Code of Civil Procedure 1908, this Court proceeds further to decide the remaining issues.
84. Order XIV of CPC, 1908 provides as follows:-
"Court to pronounce judgment on all issues"
(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to -
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.
Page No. 42/7385. It is the settled law laid down in catena of judgments especially in judgment titled as Anil Rishi v. Gurbakh Singh 2006 (5)SCC 558, wherein it was held that ordinarily the burdened of proof would be on the party who asserts the affirmative of the issue and not the party who denies it.
86. Further in Sebastio Luois Fernendes v. K.V.P. Shastri , 2014 AIR (SC) 977 it was held that burden of proof lies upon a person who has to prove the fact and which never shifts.
87. In view of the ratio of the above cited judgments, in the present case the initial burden lies upon the plaintiff to prove that in the year 2005 after the conclusion of the consolidation proceedings, the defendants trespassed and forcibly taken possession of suit property measuring 1550 sq yds. Therefore, this court deems appropriate to take up Issue no.6 first.
ISSUE No. 6:- Whether the plaintiff is entitled for the decree of possession of suit property against the defendant? OPP
88. The onus to prove the present issue was on the plaintiff, it is the plaintiff who must at first instance prove by affirmative evidence that he was in possession of the suit plot and thereafter the possession was forcibly taken by the defendants on the basis of forged and fabricated documents.
89. The stand of the plaintiff as per pleadings is that after the Page No. 43/73 consolidation proceedings and allotment of new Khasra numbers, he sold some of the plots and he remained in possession of the remaining plots including the plot in issue in the present suit i.e. plot no.91.
90. No doubt it already stands established on the basis of the finding in issue no.2 that the defendant is in possession of the plot way before 2004, however, if the issue is taken up independently of the finding on issue no.2, the plaintiff never produced any family member or friend as a witness to prove that he has raised the boundary wall etc. on the suit plot as pleaded by him in the pleadings.
91. Further, the pleadings of the plaintiff are self contradictory. On one hand stated that the consolidation proceedings completed in March-April 2005 and passbook was handed over to him by the consolidation officer of new Khasra no. 88 to 99 and thereafter, he raised boundary wall, constructed one room and temporary tin shed in remaining 4 plots (including the plot in question) and on the other hand he stated that the defendant on the basis of forged and fabricated documents forcibly trespass in the plot sometime in the year 2004.
92. It is not explained by the plaintiff in his entire case that how the defendant can enter in 2004, while he himself was in possession of the plot in 2005?
93. On the other hand, it is the case of the defendant the Page No. 44/73 plaintiff on 11.11.1987 executed agreement to sell, GPA, receipt and affidavit all dated 11.11.1987 in his favour and since then he is in possession of the suit property, whereas it is the stand of the plaintiff that the documents are forged and fabricated and he never executed those documents.
94. In order to discharge the onus, the defendant himself entered into the witness box as DW-1 and reiterated the stand taken by him in the written statement by way of affidavit Ex. DW1/A.
95. In the cross examination the defendant denied the suggestion that the plaintiff or his father in law, namely, Ram Niwas never sold the suit property to him. Even the court observed that the witness got upset on being putting the suggestion to him that he never purchased the suit property from the plaintiff and his father in law. He further denied the suggestion that the documents dated 11.11.1987 marked A (Colly) are forged and fabricated document and he further denied the suggestion that he had not taken the possession of the suit property from Trilok Chand and Ram Niwas. The defendant further deposed that the plaintiff by collusion got his name recorded in the consolidation pass book. He further deposed that the aforesaid documents dated 11.11.1987 mark 'A' was submitted to IO Veer Singh in criminal case. He further identified the signature of plaintiff at point A, B, C, D,E and F of mark A (Colly) i.e. GPA, Agreement to sell, affidavit Page No. 45/73 etc. all dated 11.11.1987. He further deposed that Sh. Maya Ram r/o Kangan Heri and one Attar Singh are the attesting witnesses to documents Mark A (Colly). He further deposed that the signature of Maya Ram were already appended on the documents when the said documents were handed over to him whereas the signature of witness Attar Singh affixed in his presence after he has received the documents. After denying the suggestions that the signature of Trilok Chand is forged the defendant Vol. Stated that "I had been handed over the pre signed documents and who else if not the plaintiff could have signed the documents". In answer to the Court question that who handed over the pre signed documents to him? The defendant deposed that "the pre signed documents were handed over to me by Trilok Chand (plaintiff) and his father in law Ram Niwas". He further deposed that at the time of purchase of suit property he was aware that the colony is unauthorized colony. He further deposed that he met and negotiated with plaintiff and Ram Niwas in person and settled the price @ Rs 30,000/- and thereafter on 11.11.1987 he made the payment to the plaintiff and his father and they told him that I can take the possession and after two days the documents and paper will be submitted by them and it is around 14.11.1987 they called the paper and delivered to him. In Vol. Statement he deposed that the possession of the property was handed over to him at the time of payment of Rs 30,000/- to Page No. 46/73 them. However, in the cross examination the defendant deposed that as mentioned by him in para N.4 of his affidavit in evidence he has not filed any application under Order I, Rule 10 CPC. On 07.11.2001 in Civil Suit No. 460/1995 as Trilok Chand (plaintiff) told me that my land is in different Khasra number i.e. khasra No. 19/14 and he told me that the is not claiming an inch of land under my khasra No. 19/14 by way of said suit (CS No. 460/1995).
96. The defendant further produced the attesting witness namely Attar Singh as DW-3. Attar Singh in his chief examination by way of affidavit Ex. PW-3/A, deposed that he is the ex-pardhan of the village and the defendant alongwith his father by carving out unauthorized colony sold the land in village badusarai out of their Khasra numbers. He further deposed that plaintiff sold the land measuring 900 sq. yards to defendant after receiving entire sale consideration amount and executed GPA, Agreement to Sell, Receipt and affidavit etc. all dated 11.11.1987 and on same day handed over the possession to the defendant and the defendant had constructed boundary wall, 4 pucca rooms, latrine, bathroom, kitchen, Cowshed etc. Rest of the contents of the affidavit is reproduction of the stand taken by the defendant in written statement, therefore, not reproduced herein.
97. In his cross examination, DW-3, deposed that in his presence no negotiation and deal in respect of the suit property Page No. 47/73 took place. In Vol. Statement he deposed that neither the deal nor the sale consideration was paid in his presence, however, the defendant alongwith his father in law handed over the pre- signed documents to the plaintiff and told me that they have sold the plot to plaintiff and asked me to sign the documents as a witness and further the plaintiff and his father in law told in my presence that we have received the money, you can construct your house anytime.
98. It was one of the arguments of the Ld. Counsel for the plaintiff that the attesting witness DW-3 is not witness to the transaction and the plaintiff admittedly not signed in his presence, hence the defendant failed to prove the documents.
99. After hearing the arguments of the respective Counsel, it is observed that firstly, it is not the requirement of law that the witness should have seen the executor of the document, it is sufficient that if he has received the personal knowledge from the executant about the signing of the documents by him and the witness put his signature on the document in the presence of the executant. The definition of "Attested" as laid down in Section 3 of the TP, Act, is reproduced herein:
"attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from Page No. 48/73 the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary .
100. Therefore, once the witness DW-3, deposed that the plaintiff and his father in law told him that they have sold the land to the defendant and asked him to append his signatures on the documents, it amounts to sufficient proof that the document was executed in his presence.
101. It was also one of the arguments of the Ld. Counsel for the plaintiff that in the complaint case the GPA, Agreement to Sell etc. all dated 11.11.1987 was sent to FSL for examination and as per the FSL report, the documents are forged and fabricated.
102. Accordingly, this Court proceeds further to see whether by virtue of FSL, report, the signatures of the plaintiff are forged and fabricated?
103. The plaintiff produced Parmod Kumar, Assistant Ahlmad, Court of Sh. Siddarth Malik, Ld.MM, Dwarka Court New Delhi, who tendered into evidence the summoning order dated 11.02.2015 passed in CC no. 428590/2016, PS najafgarh as Ex. PW-3/1(OSR), investigation report filed by SI Veer Singh, PS Najafgarh as Ex. PW3/2 (OSR), FSL report which Page No. 49/73 constitutes part of Ex.PW3/2 as Ex. PW-3/3 dated 23.05.2014 (OSR) (mode of proof objected to by the ld. Counsel for the defendant as a photocopy of report dated 29.10.2013 is enclosed with) and complaint lodged by plaintiff u/s 200 Cr.PC as Ex. PW3/4(pending before Ld. MM).
104. Plaintiff further produced IO Veer Singh, belt no. D4893, PS Dwarka North, New Delhi as PW-5 who deposed in his chief examination that (only relevant portion reproduced) as per direction of the Ld.MM dated 18.07.2012 he conducted the investigation and collected the documents of plot no. 88 from Suresh Kumar & ors. and plot no. 91 from plaintiff and of plot no. 94 from Suresh Devi. Thereafter, he took the admitted signatures of complainant ( plaintiff herein) and sent the same to FSL, Rohini and thereafter he collected the report and submitted the same before the Court of Ld. CMM, South West, Dwarka. When he demanded the documents of plot no. 97 from Ishwar & others they produced GPA pertaining to Khasa no. 19/18/1.After that he received record of plot no. 97 from Halka Patwari and he came to notice that plot no. 88 to 97 came under Khasra no. 19/13/1/14 situated in vill Badusarai and thereafter he filed the original halka patwari report, sijra report, original documents pertaining to plot no.88,91 and 94, FSL report in the Court of Ld. CMM, Dwarka.
105. In cross examination he admitted that he did not prepare any seizure memo with regard to the documents seized by him.
Page No. 50/73He further admitted that he had not given any notice u/s 160 Cr.pc to the accused persons and not prepared any road certificate. He further admitted that the specimen signatures of kundan lal and not taken signatures of the accused persons (defendant in present case as well as connected cases). He further admitted that the signatures were taken without the permission of the Court and he took the signatures of Kundan lal at his own volition.
106. On the basis of above deposition of PW-5, the fact that comes into light before the Court is that the signatures of plaintiff was taken by the IO at his own volition. Therefore, it is not clear that which 'admitted' signatures of the plaintiff were sent from comparison to FSL? As it is the case of the defendant that the document in question were executed by the plaintiff in the year 1987 whereas it is the case of the plaintiff that they are forged and fabricated in the year 2005 meaning thereby either the admitted signatures of the plaintiff of the year 1987 or 2005 are relevant for comparison and in absence of any proof that signatures of which year were sent for comparison, this Court comes to the conclusion that the FSL report cannot be relied upon.
107. Further on perusal of FSL report, it is observed that there are two reports on record, one dated 29.10.2013 and another dated 22.05.2014. As per report dated 29.10.2013, the FSL, Rohini, mentioned that on the basis of standard Page No. 51/73 writing/signatures marked S1 to S4 & A1 to A18 of Trilok Chand Sharma (plaintiff) sent on 24.06.2013 & 14.08.2013, under the head LABORATARY EXAMINATION, PART-II, it has not been possible to express any opinion, however, further attempt can be made if some more genuine admitted writing/signatures preferably of contemporary period as well as some more specimen writing or signature of the person concerned are produced and sent to laboratory.
108. While in report dated 22.05.2014, on the basis of documents sent on 20.12.2013, on the basis of standard writing/signatures marked as S1 to S4 & A1 to A18 of Sh. Trilok Chand Sharma ( plaintiff), the FSL gave its finding that the signatures differ from the specimen in comparison with the signatures on transfer documents i.e GPA, ATS, etc.
109. Therefore, it transpires that the signatures of plaintiff are taken and sent twice for examination by the IO, whereas, the IO never deposed to this effect in his testimony. Additionally, examiner of the documents from the FSL, Rohini, is not called as a witness to authenticate the finding given by him on the basis of two set of signatures sent for comparison.
110. Therefore, merely on the basis of FSL report without calling the expert in the witness box, especially under the circumstances that it is not clear that which signatures of the plaintiff, from which documents-whether of relevant period or present period and in presence of whom those signatures were Page No. 52/73 taken, are sent to FSL by the IO that too without the prior permission of the Court of LD. MM, the FSL report per se cannot be relied upon to declare that the signatures of the plaintiff are forged.
111. Further, the evidence of the expert is relevant only when there is no direct evidence before the Court. In the present case the attesting witness DW-3, who is an ex-pardhan of the village and also remained member of the committee during consolidation proceedings and deposed elaborately about the ownership and possession of land by the villagers in different Khasra numbers and therefore, no plausible ground is made out to discard his testimony. Even the plaintiff failed to create any contradiction in the testimony of the defendant during cross examination.
112. It is also one of the argument of the Ld. Counsel for the plaintiff that in view of the Ratio laid down in Suraj Lamp & Industries (P) Ltd. (2) vs. State of Haryana (2012) SCC 656, the defendant on the basis of GPA/SPA/AS sales cannot claim any right , title or interest in the suit property.
113. It is apposite to mention that the Hon'ble Supreme Court in judgment titled as Suraj Lamp (Supra), no doubt held that SA/GPA/WILL sales by itself cannot confer title over the suit property and that can be done only on the basis of registered conveyance (sale) deed. However, it was also held in the judgment by the Hon'ble Supreme Court that if under the Page No. 53/73 agreement the possession is also handed over to the purchaser and if the same is executed before the amendment act of 2001 in such case the transferee has the right to defend his possession by virtue of Section 53 A of the Transfer of Property Act, 1953.
114. Section 53A of the TP Act, provides as follows:-
Part Performance. - Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to consti- tute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwith- standing that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed thereof by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforc- ing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly pro- vided by the terms of the contract Page No. 54/73 Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
115. On plain reading of the section, it provides that if under agreement to sell, the possession of the property is handed over to the transferee by the transferor and the transferee has done some act in furtherance of the contract and has performed or is willing to perform his part of the contract in such circumstance, the transferor or his representatives are barred from taking the possession of the property from the transferee.
116. Moving further, It is noteworthy to observe that in fact the documents dated 11.11.1987 were executed by the plaintiff in favour of the defendant stands corroborated from the testimony of the plaintiff himself as (1) He himself shown the defendant in possession of plot measuring 900 sq. yards in the Site plan Ex. PW1/E ( admitted during cross examination in the present suit as PW-1/DX-2) filed by him in Civil Suit no. 460/1995 in the year 1991and (2) in his pleadings in CS- 460/1995 and cross examination in the said suit (Ex. PW- 1/DX-1) and even during cross examination in the present suit specifically admitted that before 1991, he sold the entire land under Khasra number 19/14 of village badusarai under his ownership and possession.
117. Therefore, once it is proved that the documents dated Page No. 55/73 11.11.1987 were executed by the plaintiff in favour of the defendant in respect of land measuring 900 sq. yards and already full and final payment is paid to the plaintiff by the defendant, nothing left to be performed by the defendant under the agreement to sell, thus, the plaintiff by virtue of Section 53A of the transfer of property Act, has no right to disturb the possession of the defendant over the suit property.
118. It is further apposite to mention that if the version of the plaintiff is believed as per his own deposition, it is observed that in fact he is not even in possession of an inch of land under his ownership and possession under Khasra no. 19/13/1 and 19/14 at the time of the filing of the present suit as well as the at the time of commencement of Consolidation proceedings and reasons for the such observation are discussed herein below and it seems that the plaintiff and his father in law sold the excess land by way GPA/SPA sales.
119. On the basis of the cross examination of the plaintiff in the present suit as well as his examination in chief and cross examination Ex PW1/DX-1 (colly) in suit no. 460/1995, this court comes to the following conclusion :
(a) Plaintiff and his father in law namely Ram Niwas, simultaneously purchased land comprising in Khasra no.
19/13/1, 19/14 and 19/18 at village Badusarai, Tehsil Najafgarh New Delhi. The land under the above Khasra numbers is adjacent to each other and forms contiguity Page No. 56/73 and further no demarcation of the land took place at any point of time.
(b) Plaintiff and Ram Niwas sold the land under their joint share holding by cutting plots to different persons and that too before the commencement of the consolidation proceedings
(c) The colony already came into existence before the commencement of consolidation proceedings and 10-12 families were already residing there.
(d) Plaintiff admitted that he has already sold the land under khasra no. 19/13/1 and 19/14 to different persons by GPA/SA sales before the commencement of consolidation proceedings and as per his deposition last plot was sold in the year 2002 to Angoori Devi.
(e) Plaintiff further admitted that plot no. 96 and 98 measuring 1300 sq. yards is rasta in the colony. The fact also stands corroborated by the testimony of PW-4 namely Manish, kanungo, produced by the plaintiff himself and he deposed that as per Masavi Ex. PW4/C, plot no. 96 & 98 is rasta measuring 1300 sq. yards.
(f) Plaintiff further admitted that the land measuring 1500 sq. yards is under alleged illegal possession of Mahinder Singh & others at least before the execution of sale deed in favour of their father namely Rattan Singh by his father in law Ram Niwas vide sale deed dated Page No. 57/73 05.10.1989.
(g) Plaintiff further admitted that on the same day when sale deed of land measuring 2920 sq. yds out of Khasra no. 19/18 was executed in favour of Rattan Singh by his father in law, Ram Niwas, Sale deed of land measuring 1080 sq. yards was also executed by him and his father in law in favour of Smt. Shakuntla w/o Col/ Dhayia out of Khasra no. 19/18 and 19/13/1. However, it is the stand of the plaintiff that while under cross examination in civil suit no. 460/1995 that only a area of 150-200 sq. yards is sold from Khasra no. 19/13/1 and the remaining portion is sold from Khasra no 19/18 of his father in law, whereas, during cross examination in the present suit, the plaintiff deposed that land measuring 500 sq. yards is sold out of his Khasra no. 19/13/1 and the balance land is sold from Khasra no. 19/18 of Ram Niwas.
(h) The testimony of the plaintiff is contradictory in both the cross examinations and further it is established and admitted fact that Ram Niwas is owner of only 3 bigha-5 biswa land i.e. 3250 sq. yards( 1 bihga=20 biswa, 3 bigha=60 biswa+5 biswa=65 biswa, 1 biswa=50 sq.yds, hence, 65 X50= 3250 sq. yards) and out of 3250 sq. yards he already sold 2920 sq.yds to Rattan Singh, therefore, only 330 sq. yards left under Khasra no. 19/18 under the ownership of Ram Niwas and therefore, the Page No. 58/73 remaining land of 750 sq. yards after adjusting 330 sq yds out of khasra No. 19/18 was sold out of Khasra no. 19/13/1 of the plaintiff to Smt. Shakuntla w/o Col. Dhayia vide registered sale deed dated 05.10.1989. This fact also stands corroborated from the revenue record of Khatauni of village Badusarai of year 1987-88 relied upon by the plaintiff himself as Ex.PW1/2, wherein, it is specifically mentioned that ownership of 0-15 biswa i.e. 750 sq. yds. of land under Khasra no.19/13/1 stands transferred in the name of Smt. Shakuntla on the basis of sale deed executed by plaintiff and his father in law in her favour.
(i) It is further admitted by the plaintiff that the persons to whom the land is sold through GPA, agreement to sell etc., their names has not been mutated in the revenue record.
(j) On the basis of testimony of the plaintiff, now it has to be seen whether he is in occupation of any land under Khasra no. 19/13/1, 19/14 before the commencement of the consolidation proceedings.
(k) As already observed, land under Khasra no. 19/18 measuring 3250 sq. yards of Ram Niwas on 05.10.89 by regd. sale deeds of even date stands sold to Rattan Singh i.e. 2920 sq. yards and balance 330 sq. yds to Smt. Shakuntla w/o Col Dhayia, therefore no land left under Page No. 59/73 the ownership of Ram Niwas under Khasra no. 19/18 and further it also stands proved that remaining 750 sq. yards of land to Smt. Shakuntla was sold from khasra 19/13/1 of the plaintiff. Therefore, the plaintiff left with 3 bigha-05 biswa land under Khasra no. 19/13/1 i.e. 3250 sq. yd and 3 bigha land under Khasra no. 19/14 i.e. 3000 sq. yard and total 6 bigha -05 biswa i.e. 6250 sq. yd under both Khasra nos. ( * in the consolidation pass book of the plaintiff Ex. Pw-1/3, 6 bigha-5 biswa is shown to be under the ownership of plaintiff at the commencement of the consolidation proceedings)
(l) Now, out of 6 bigha-5 biswa land i.e. 6250 sq. yards, the plaintiff as per his own testimony sold the land to following persons as described in the chart.
S.no Date and Land Khasr Name of the Plot no. given in
mode of Sold in a No. purchaser Consolidation
Transaction sq. yd Proceeding
1. 19.05.88 496 19/13 Virender -----
GPA/AS Singh &
sale Ravinder
Kumar
2. 31.10.90 300 19/13 Rohtas s/o 94
GPA/AS /1 Phool Singh
sale
3. 04.06.1994 380 19/13 Smt. Suresh 88
GPA/AS /1
sale
4 18.09.1986 900 19/14 Smt. Ram 92
Page No. 60/73
GPA/AS Kaur
Sale
5. 16.04.1987 500 19/14 Ranbir Singh 89
AS sale s/o sher
singh
6. 16.04.1987 500 19/14 Randhir 90
AS sale Singh s/o
Saroop
7. 20.06.2002 400 19/13 Angoori
AS sale /1 Devi
8. ------ 550 19/13 Surender 93
/1 (p) Kumar,
19/14 Balwan &
(D) Mange ram
TOTAL 4026
Sq.
yards
9. GPA dated 1500 19/13 Mahender 97
11.11.1987 /1 Singh &
under others
challenge
10. Admittedly 1300 19/13 96 & 98
Rastaa /1/14
Total land 6826
sold sq.
yards
(m) In view of the chart prepared above, interestingly the
plaintiff has sold 4026 square yards of land to different persons and left 1300 sq. yards as passage and 1500 sq. yards is under challenge on the ground of alleged illegal possession of Mahender Singh & Ors and thus, a total land measuring 6826 sq. yards, while he was in possession of 6250 sq. yards of land Page No. 61/73 only, meaning thereby the plaintiff sold land measuring 576 sq. yds in excess land under Khasra no. 19/13/1 and 19/14. It is worthwhile to mention the above chart does not include the suit land measuring 950 sq. yards.
(n) Once, it stands admitted by the plaintiff that no separate demarcation of the khasra numbers was ever done, it becomes immaterial that which plot as claimed by the plaintiff is sold out of which khasra number to the purchasers. The fact will remain firm that going by the deposition of the plaintiff himself, no land is left under the title and possession of plaintiff.
VALIDITY OF CONSOLIDATION PROCEEDINGS.
120. It is observed that the root cause of the entire controversy in the present case is the consolidation pass book issued by the consolidation officer to the plaintiff at the conclusion of the Consolidation proceedings, wherein the plaintiff is shown to be the owner of new Khasra no. 88 to 99. Which is exhibited as Ex PW1/3?
121. On perusal of pass book the land in Khasra No. 19/13/1 and 19/14 is shown to be 6 bigha 5 biswa i.e. 6250 sq yds and after the conclusion of consolidation proceedings the khasra No. 19/13/1 and 19/14 is converted into khasra No. 88 to 99 showing total land as 6 bigha 17 biswa i.e. 6850 sq yds under Page No. 62/73 the ownership of the plaintiff.
122. As already observed, except Smt. Shakuntla, the plaintiff sold the entire land by converting into plots to different persons including the defendant by GPA sale and therefore, the names of the purchasers are not reflected in the revenue record and as such at the commencement of the consolidation proceedings after deducting the 15 biswa land sold to Smt. Shakuntla by way of sale deed, it is rightly shown that the land under the ownership of plaintiff was 6 bigha-5 biswa i.e. 6250 sq. yards, however, it is hard to believe and no plausible reason cameforth before this Court during the course of evidence or arguments that how land measuring 6 bigha-17 biswa i.e. 6850 sq. yards is shown under the ownership of the plaintiff?
123. Another moot question before the Court is whether the entries in the name of plaintiff of new Khasra no. 88 to 99 in the consolidation pass book Ex PW1/3 only shows his ownership or it also reflects the possession of the plaintiff and this Court is of the considered view that the entry in the passbook only shows the ownership status of the plaintiff and not the possession for the following reasons:
a. It already stands established from the testimony of the plaintiff himself that all the land stands sold to the different purchasers and also left for passage in the colony before the effective commencement of consolidation proceedings in the year 2004.Page No. 63/73
b. However, the names of the different purchasers are not shown against the specific Khasra number in the consolidation passbook, which shows that the consolidation passbook only shows the ownership of the plaintiff and not his possession.
124. Therefore, on the basis of above observations, his Court has no hesitation to observe that the consolidation passbook Ex. PW1/3, heavily relied upon by the plaintiff does not reflect the true picture on twin grounds-Firstly, there is no justification regarding increase of area of land after consolidation proceedings from 6250 sq. yards to 6850 sq. yards which is neither justifiable nor plausible and Secondly, non-mentioning of the name of the purchasers to whom the plaintiff already sold the land before the commencement of the proceedings as possessors in the consolidation passbook. Therefore the same cannot be relied upon.
125. The plaintiff has tried to make out a case in his favour and pleaded that after the conclusion of the consolidation proceedings out of Khasra no. 88 to 99 (plot), he sold the plots bearing no. 89,90,92,93,95 and 99 to the respective buyers, whereas, from his own deposition it stands established that plots were already sold to the respective buyers before the commencement of consolidation proceedings and plot numbers were given subsequently in the consolidation proceedings.
Page No. 64/73126. Further, it is the case of the plaintiff that he never sold the remaining plots i.e. no. 88,91,94,96,97 and 98 to any one and some of the villagers in order to grab the valuable properties of the plaintiff colluded with revenue officials and got their names in the kayami register of the year 2005 by taking benefit of his absence.
127. Whereas, the defendant produced the witness namely Unique Kaushik, Jr. Assistant, from the Court of financial Commissioner Delhi as DW-5, who brought the patwari report dated 29.02.2007 filed in case no. 205/07 before financial commissioner Delhi alongwith copy of register karwai chakbandi dated 17.02.2007 and copy of Khatauni pertaining to the year 1990-91 and tendered them in evidence as Ex. DW5/A(OSR)(Colly, running into 5 pages).
128. The report of the patwari dated 29.02.2007 is reproduced herein (Note the same was in Hindi and converted into English for better understanding) " In reference to case bearing no.100/06-CA and case bearing no.102,103,101/06-CA, the inspection was conducted at the spot of Khasra no. 19/13/1(4-0) and 19/14 ( 3-0). It is submitted that the aforesaid Khasra numbers are prior to the consolidation proceedings and their ownership is in the name of Trilok Chand s/o Sh. Hardwari lal Sharma r/o 165-Wz, harinagar, Delhi, (the plaintiff herein). The ownership of 0-15 biswas out of Khasra no.19/13/1 is in the name of Smt. Page No. 65/73 Shakuntla Kumari w/o Sh. S.S. Dhayia r/o Khanda, District Sonepat, Haryana. On inquiry it came to the knowledge that the above person about 10 years ago after cutting the plots out of the aforesaid Khasra numbers as a colony sold the same to different buyers, whose names after consolidation are recorded in the Register Karwai. Sir, after consolidation the Khasra numbers came within the jurisdiction of extended lal dora of village Badusarai. The name of the persons who were residing in those plots after construction of their houses, were recorded as kayami as per their possession in the plots/houses and after conclusion of consolidation proceedings their names were entered in the register karwai Chakbandi and all the plots/houses were given different numbers i.e. number 88 to 102 out of which Khasra no. 96 and 98 is passage. Sir, before consolidation the Khasra numbers were of agricultural land and developing them as a colony was not lawful and after consolidation as per section 21 of the DRC Act, the land has to vest in Gram Sabha, however, as the Khasra numbers were in the ownership of Trilok Chand Sharma therefore after consolidation the ownership was recorded in his name and the persons who were in possession at the spot, they were recorded as possessors. The farad before and after the consolidation is attached herewith".
129. The above report was filed by the halqa patwari in the proceedings filed by the plaintiff to challenge the entries made Page No. 66/73 in the register karwai chakkbandi by the consolidation officer on the basis of the settled possession of the persons in specific khasra no. 88 to 99 ( except 96 and 98 which is raasta left in the colony).
130. During cross examination it is admitted by the plaintiff that he challenged the entries in the kayami register before the Financial Commissioner and deposed as follows:
It is correct that I had approached the Financial Commissioner with regard to challenging the entries of name in karwai register during the consolidation proceedings. Vol. I had filed a revision petition under the impression that my name was deleted. During the course of proceedings I learnt that my name is very well intact in the karwai register and thus I withdrew my revision petition.
131. However, as per the report of the Halqa patwari (DW5/A), entries stands in the name of the possessors and not the plaintiff. Therefore, the deposition of the plaintiff that he withdrew the revision petition as his name was very well intact in the Karwai register stands negated.
132. In the Register Karwai Chakkbandi, all the purchasers including the defendant are shown in the possession of different Khasra numbers and the defendant is shown in possession of Khasra no. 91 measuring 0-18 biswa i.e. 900 sq. yards.
Page No. 67/73133. Therefore, the entire case of the plaintiff based on the consolidation passbook as well as his plea that the villagers in connivance with revenue officials got their names entered into the register karwayi chakbandi falls flat as it is specifically mentioned in the report of the patwari that the names of the persons were recorded as kayami on the basis of their previous possession over the plots.
134. Therefore, the plaintiff miserably failed to prove that he was in possession of any portion of land under khasra No. 19/13/1 and 19/14 or in possession of suit property at the effective commencement of consolidation proceedings in 2004 and at the completion the consolidation proceedings in 2005. He further failed to prove that he constructed one room, tin shed etc as claimed by him in the year 2005 with the help of his family and friends. Whereas on the other hand the defendant is successful in proving that plaintiff sold the suit property by way of GPA , agreement to sell etc all dated 11.11.1987 to him and he is in possession of the suit plot since then.
135. Accordingly, on the basis of detailed discussion and observations made above, the issue No. 6 is decided against the plaintiff and in favour of the defendant and it is held that the plaintiff is not entitled for decree of possession.
136. As issue No.6 is decided against the plaintiff, the issue No.7,8 and 9 being consequential reliefs dependent upon the Page No. 68/73 finding on issue No.6, are also decided against the plaintiff and in favour of the defendant.
137. This Court proceeds further to decide the remaining issues i.e. Issue no. 1,3,4,5,10 and 11.
138. It is observe that the issue No.5 framed in the present suit i.e. Issue no.5 :- Whether the defendant has become the owner of the suit property by way of adverse possession? And Issue No.1 - Whether the defendant is in possession of the suit property since about 11.11.1987 on execution of Agreement to Sell, GPA, Receipt and affidavit all dated 11.11.1987 in his favour by Trilok Chand Sharma (the plaintiff herein)? ....OPD are contradictory to each other.
139. In Dagadabai (Dead) By Lrs v Abbas @ Gulab Rustum Pinjari (2017) 13 SCC 705 the Hon'ble Apex Court held that "a person first admit the ownership of the true owner over the property before claiming ownership on the strength of adverse possession. Inconsistent plea cannot be taken by a party when claiming title by way of adverse possession i.e. a party cannot claim his ownership over a property on the basis of title and by way of adverse possession simultaneously as both such Page No. 69/73 pleas are mutually inconsistent."
140. It is also significant to note that the defendant never pleaded adverse possession in his written statement, rather he is claiming himself to be the owner of the suit property on the basis of agreement to sell, GPA, receipt and affidavit, etc. all dated 11.11.1987 alleged to be executed by the plaintiff in his favour and also it is the stand of the defendant that on the same day the defendant handed over the actual, physical possession of the suit property to him and since then the defendant is residing therein with his family members. Therefore, the issue No.5 as framed is beyond the pleadings and additionally it is contradictory to Issue no.1 and therefore, the issue no.5 need not to be dwelt upon, whereas issue No.1 is rightly framed.
141. This Court has already discussed in detail and covered the issue no.1 while deciding the issue no.6, therefore, for the sake of brevity the same is not reproduced again and therefore, in view of the detailed discussion and observations made while deciding the issue no.6, the issue no.1 is decided in favour of the defendant and against the plaintiff.
142. Issue no.3:- Whether the jurisdiction of civil court is barred under Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation), Act 1948 in respect of the suit property? ...OPD Page No. 70/73
143. No evidence is lead by the defendants to prove the present issue accordingly the issue is decided against the defendants and in favour of the plaintiffs.
144. Issue no. 4:- Whether the defendant has acquired any right in the suit property on being treated as scheme kabiz of the suit property, during the consolidation proceedings? ...OPD
145. Onus to prove the issue in question was on the defendants and as per the Halqa Patwari report Ex DW5/A (Colly), it is specifically mentioned that the purchasers including the defendants is recorded as possessor only on the basis of his previous possession and not as per resolution as record him scheme kabiz and in view of the above report the present issue is decided against the defendant and in favour of the plaintiff.
146. Issue no.1:-Whether the defendant is a bona fide purchaser of the suit property under khasra no,.19/13/1, 19/14 and 19/18 constituting part of the extended lal dora during consolidation proceedings? ...OPD
147. The issue in question is interlinked to the issue no.1 and the finding of the issue no.1 has direct bearing on the present issue and as the issue no.1 is decided in favour of the defendant, the present issue is also decided in favour of the defendant and against the plaintiff.
Page No. 71/73148. Issue no.11- Whether the plaintiff has suppressed the material facts and material documents from this court? ...OPD
149. The onus to prove the present issue is on the defendant and as per the pleadings of the defendant, evidence adduced before this Court by the defendant especially the cross examination of plaintiff in Civil Suit no. 460/1995 before the Ld. Civil Judge, New Delhi, there is no iota of doubt that the plaintiff suppressed the material facts and documents from this Court. The present suit filed by the plaintiff is an example of epitome of greed, wherein he himself despite specifically representing the defendant as in possession of suit plot before the year 1991 in civil suit no. 460/1995 and also specifically pleaded in the said civil suit and also admitting the same as correct in his cross examination in the present suit that he has already sold the entire land under Khasra no. 19/14 and blatantly himself claiming that the suit plot no.91 is under Khasra no. 19/14, which is clearly a contradictory statement and all of this done under the garb of entries in the consolidation passbook only because his name is still reflecting in the revenue record as he had sold the entire property by carving out plots through GPA/SPA/AS and tangled the defendant in this long battle of almost one and half decade as the present suit was filed in the year 2008, dragging the defendant in this uncalled saga and causing him physical and mental agony apart from draining him economically in this Page No. 72/73 fierce litigation, shows a sorry state of affairs. Accordingly not only the issue is decided in favour of the defendant but the defendant also deserves to be compensated for all the difficulties faced by him.
Relief:
150. In view of the issue wise findings given by this Court, especially the finding on issue No. 1,2 and 6, the suit of the plaintiff is hereby dismissed and for suppressing material facts and documents from this Court and causing undue harassment to the defendant by filing the frivolous litigation and dragging the defendant in this frivolously case for a period of approximately 15 long years, the plaintiff is directed to pay Rs.50,000/- as compensation to the defendant subject to the statuary period of appeal or in case the appeal is filed till the decision in the appeal, whichever is earlier.
151. Decree sheet be drawn up accordingly.
152. File be consigned to record room after due compliance and necessary action as per Rules. SACHIN Digitally signed by SACHIN JAIN JAIN Date: 2022.05.17 17:04:51 +0530 Pronounced in the open Court (Sachin Jain) on 13.05.2022 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi Page No. 73/73