Delhi District Court
Sh. Pramod Kansal vs Sh. Umesh on 23 April, 2013
IN THE COURT OF MS. ANJANI MAHAJAN, CIVIL JUDGE17,
DISTRICT (CENTRAL), TIS HAZARI COURTS, DELHI
SUIT NO. 568/07
Unique ID No. 02401C0983982007
MEMO OF PARTIES
1.SH. PRAMOD KANSAL S/O SH TARA CHAND R/O FLAT NO.163, VENUS APARTMENT, ROHINI DELHI110085.
PLAINTIFF VS
1. SH. UMESH S/O SH. RAM CHANDER R/O WP376, VILLAGE WAZIRPUR DELHI110052.
2. SH MADAN LAL S/O SH. RATTAN SINGH R/O WP361, VILLAGE WAZIRPUR, DELHI110052.
3. SH. DEEPAK WADHWA, R/O SH. R.C. WADHWA R/O HOUSE NO. 2983/1A, STREET NO. 1011, RANJIT NAGAR DELHI110008.
DEFENDANTS
Date of institution of the suit : 03.10.2007
Date on which judgment was reserved : 04.04.2013
Date of announcement of judgment : 23.04.2013
Suit No. PRAMOD VS UMESH 1/19
SUIT FOR DECLARATION, PERMANENT & MANDATORY INJUNCTION EXPARTE JUDGMENT
1. Plaintiff has filed the present suit seeking the following reliefs :
(1) To pass a decree of permanent injunction in favour of the plaintiff against the defendant thereby restraining the defendant to create third party interest by way of selling, let out, transfer, mortgage, alienate in respect of plot measuring 330 square yard in
2 bigha 1 biswa out of khasra no. 309/2, Revenue Estate Village Siraspur, Delhi as shown in red colour in the site plan.
(ii) To pass a decree of mandatory injunction thereby directing the defendants not to remove boundary wall from the aforesaid property plot measuring 330 square yard in 2 bigha 1 biswa out of khasra no. 309/2, Revenue Estate Village Siraspur, Delhi as shown in red colour in the site plan.
(iii) Declare the documents of the plaintiff as genuine one in respect of plot measuring 330 square yard in 2 bigha 1 biswa out of khasra no. 309/2, Revenue estate Village Siraspur, Delhi and further, declare null and void documents of defendants.
(iv) Defendants may be restrained to create any interference Suit No. PRAMOD VS UMESH 2/19 in the peaceful enjoyment and possession of the premises in question as shown in red colour in the site plan of the property measuring 330 square yard in 2 bigha 1 biswa out of khasra no. 309/2, Revenue Estate Village Siraspur, Delhi.
(v) Defendants may be restrained not to forcibly dispossess the plaintiff from the premises in question as shown in red colour in the site plan measuring 330 square yards in 2 bigha 1 biswa out of khasra no. 309/2, Revenue Estate Village Siraspur, Delhi.
(vi) Cost of the suit may also be awarded in favour of the plaintiff and against the defendant.
(vii) Any other or further relief which this court may deem fit be passed in favour of the plaintiff and against the defendants.
2. The plaintiff claim is to be the owner of a plot measuring 330 square yards situated in 2 bighas 1 biswas out of khasra no. 309/2, Revenue Estate Village Siraspur, Delhi and has series of documents since 23.01.1987. The registered owner Shri Mangat Ram, S/o Sh Jangli, R/o Village Siraspur, Delhi sold the said property under his ownership and possession to Sh Satnam Singh, S/o Sh Lala Ram, R/o B12, Derawal Nagar, Delhi on a consideration amount of Rs 20,000/ and executed the sale Suit No. PRAMOD VS UMESH 3/19 documents i.e. Sale Deed dated 23.01.1987 vide Registration No. 749, Book No. 1, Volume No 5076, pages from 159 to 162, dated 23.01.1987, from the office of subregistrar, Kashmiri Gate, Delhi.
3. Sh Satnam Singh sold the said property 2 Bigha 1 Biswa to Sh Dinesh Kumar and Suchita Mangla on 18.03.1997 and executed a General Power of Attorney which was notarised in the presence of (1) Sh Sujan Singh, and (ii) Sh Ved Prakash. Dinesh Kumar and Suchita Mangla sold the aforesaid property 2 Bigha 1 Biswa to Sh Ashok Kumar, S/o Sh Jai Narain, on a consideration amount of Rs. 2,00,000/ through Sale Deed dated 31.03.1997 vide Registration No. 2797, Book No. 1, Volume No. 320, Pages on 142 to 145 dated 31.03.1997. Sh Ashok Kumar sold the portion of plot i.e. 850 square yards to Sh Sanjay S/o Sh SR Aggarwal, on a consideration amount of Rs 1,50,000/ and executed GPA, Agreement to Sell, Affidavit, Receipt of Rs. 1,50,000/, Will & possession letter all dated 17.11.2005 and sold a portion of the plot i.e. 850 square yards to Sh Sanjay Kumar S/o Sh Nokhe Lal, on a consideration amount of Rs 2,50,000/ and executed GPA, Agreement to Sell, Affidavit, Receipt of Rs. 1,50,000/, Will & possession letter all the documents notarised by Notary Public.
Suit No. PRAMOD VS UMESH 4/19
4. Sh Sanjay Kumar S/o Sh S.R. Aggarwal, sold the 330 square yards plot to the plaintiff on a consideration amount of Rs. 1,20,000/ and executed a registered irrevocable GPA dated 08.03.2006 vide registration no. 6135, book no. 4, volume no. 157, pages from 132 to 135 dated 08.03.2006, receipt, Agreement to sell, Affidavit, possession letter all dated 08.03.2006. On 04.09.2007, plaintiff went to look after the aforesaid plot and found that the boundary wall has been broken by the defendants who were trying to capture the aforesaid plot. Plaintiff tried to stop them, and brother of plaintiff Sh Mohan Lal made a call from his mobile at 100 number, however, the defendants 1 & 2 threatened to kill the plaintiff, and further plaintiff and his brother were implicated in false kalandra u/s 107/150 Cr.P.C dated 04.09.2007 in collusion with officials of P.S. Samaypur Badli and were arrested by the police officials and remained in custody for one day.
5. It is averred that defendants 1 & 2 filed their documents in the court of the Special Executive Magistrate, Jahangir Puri, Delhi and the plaintiff obtained the copy of the same which were apparently forged and by these documents, it was revealed to the plaintiff that defendants 1 & 2 were claiming and alleging that the defendants Suit No. PRAMOD VS UMESH 5/19 were showing the documents of 1989 to be executed by Sh Mangat Ram. It was submitted that those documents were unregistered and further did not bear the actual thumb impression of Sh Mangat Ram and further these documents were bogus since prior to 1989, i.e. in the year 1987, Sh Mangat Ram had sold the said property to Sh Satnam Singh by way of sale deed dated 18.03.1987 registered on 23.01.1987. It was submitted that the documents were apparently bogus because at one stage, the defendants were showing Mr Deepak Wadhwa as owner and on the other hand, Mr Umesh and Vinod were creating interference in the peaceful possession of the plaintiff and further committing trespass and mischief. It was submitted that defendants by making forged, bogus and fabricated documents with the help of Mr Vinod Kumar, Mr K.L. Nagpal, Mr Sushil Kumar, Mr Umesh, Mr Deepak Wadhwa were claiming their rights over the plaintiff's property.
6. Plaintiff further submitted that the cause of action firstly arose on 04.09.2007, when the defendants tried to trespass over the property in question, it again arose when a false Kalandra was made by police officials in collusion with the defendants and further, they were threating to create third party interest over the said property Suit No. PRAMOD VS UMESH 6/19 in question. Hence plaintiff filed the present suit.
7. In this case, defendant no. 1 appeared in response to the summons and filed his written statement however stopped appearing after the stage of framing of issues. Defendant no. 2 was served by way of affixation however did not put in appearance or file the written statement. Defendant no. 3 was served by way of publication however he also did not put in appearance or file written statement. Both the defendants 2 & 3 were proceeded exparte on 10.03.2008.
8. Various preliminary objections were taken by defendant no. 1 in his written statement. It was submitted by the defendant no. 1 that the suit filed by the plaintiff was not maintainable and there was mis joinder and nonjoinder of the necessary parties. There was no cause of action and the suit was liable to be dismissed under order 7 rule 11 CPC. It was submitted that the plaintiff has claimed the relief of declaration qua the agriculture land the bar of the provision of Delhi Land Reforms Act was pleaded. It was further stated that the present suit is not maintainable against the defendant no. 1 because he had already transferred the land measuring 1000 square yards to one Sh Deepak Wadhwa i.e. defendant no. 3 through Registered Suit No. PRAMOD VS UMESH 7/19 Sale deed dated 23.01.2013.
9. Defendant no. 1 on merits stated that defendant had also purchased a plot out of Khasra No. 309/2 measuring 1000 square yards situated within the Revenue Estate of village Siraspur Delhi from one Sh Sushil Kumar vide Registered GPA and other documents including cash receipt on 29.06.2000. It was submitted that the possession was handed over by Sh Sushil Kumar to the defendant no. 1 immediately after the execution of the transfer documents on 29.06.2000. It was submitted that the defendant no. 1 erected a boundary wall over the said plot and remained in uninterrupted and peaceful possession of the said land till the date it was transferred by the defendant no. 1 to one Sh Deepak Wadhwa through Registered Sale Deed dated 23.01.2003. It was submitted that plaintiff in collusion with some other anti social elements had been advancing threats to the defendant no. 1 either to cancel the sale deed or to face the consequences. It was submitted that the plaintiff was in collusion with the local police and was doing the entire exercise in order to make out false evidence in his favour.
10. It was specifically denied by the defendant no.1 that on 04.09.2007 plaintiff went to look after the aforesaid plot and found Suit No. PRAMOD VS UMESH 8/19 that the boundary wall has been broken by the defendants. It was also denied that defendants threatened to kill the plaintiff and plaintiff and his father were implicated in false kalandras. It was submitted that on 04.09.2007 defendant was invited by the plaintiff for getting verified the exact location of the plot and the plaintiff and his other associates including his father were found tresspassing in other's property. It was submitted by defendant no. 1 that there is no averment in the entire plaint regarding who had constructed the boundary wall on the alleged plot of the plaintiff, therefore present suit false, and not maintainable and liable to be dismissed.
11. It was submitted that the plaintiff had no right, title or interest to the property transferred by the defendant no.1 to Sh Deepak Wadhwa.
12. Replication was filed by the plaintiff to the written statement of defendant no. 1 denying the contentions raised by defendant no. 1 in his written statement and reaffirming the contents of the plaint.
13. In between, an application u/o 1 Rule 10 CPC was filed by one Sh Bijender. The applicant was directed to bring all the documents on the basis of which he claimed ownership of the suit property. The applicant failed to file the documents and also did not appear Suit No. PRAMOD VS UMESH 9/19 therefore application u/o 1 rule 10 was dismissed on 20.10.2011. The applicant moved an application for restoration and rehearing of the aforesaid application and was again directed to supply copy of the documents to counsel for plaintiff but again the same was not done finally, after the applicant failed to avail of the opportunity to the applicant to address arguments and produce title documents the application of the applicant was dismissed in default for non prosecution.
14. Vide order dated 22.04.2010, the following issues were framed in this case :
(1) Whether on the basis of plaint allegations plaintiff is entitled for a decree of permanent injunction as prayed for? OPP. (2) Whether on the basis of plaint allegations plaintiff is entitled for a decree of mandatory injunction as prayed for ? OPP. (3) Whether on the basis of plaint allegations plaintiff is entitled for a decree of declaration in respect of the documents mentioned in clause III in prayer clause as prayed for? OPP. (4) Whether the present suit is barred by provisions of Delhi Land Reforms Act? OPD.
(5) Whether the defendant is owner of the suit property? OPD. Suit No. PRAMOD VS UMESH 10/19 (6) Any other relief which the plaintiff may be entitled for ? OPP.
15. Thereafter, matter was fixed for exparte PE. Plaintiff in order to prove his case examined himself as PW1 and relied on the following documents :
Ex PW 1/1 : Site plan
Ex PW 1/2(OSR) : Certified copy of sale deed dated
23.01.1987.
Mark A : True copy of GPA dated 18.03.1997.
Ex PW 1/4(OSR) : Sale deed dated 31.03.1997
Ex PW 1/5(OSR) : Certified copy of GPA dated 17.11.2005.
Ex PW 1/6(OSR) : Certified copy of Agreement to sell
Ex PW 1/7(OSR) : Certified copy of affidavit dated 17.11.2005
Ex PW 1/8(OSR) : Receipt of Rs 1,50,000/ dated 17.11.2005
Ex PW 1/9 (OSR) : Certified copy of will dated 17.11.2005
Ex PW 1/10(OSR) : Certified copy of possession letter dated
17.11.2005
Ex PW 1/11(OSR) : Certified copy of GPA dated 08.03.2006
Ex PW 1/12(OSR) : Certified copy of receipt dated
08.03.2006
Ex PW 1/13(OSR) : Certified copy of agreement to sell
Suit No. PRAMOD VS UMESH 11/19
dated 08.03.2006
Ex PW 1/14(OSR) : Certified copy of affidavit dated
08.03.2006.
Ex PW 1/15(OSR) : Certified copy of possession letter letter
dated 08.03.2006
Ex PW 1/16(OSR) : Certified copy of will dated 08.03.2006
Ex PW 1/17 : Certified copy of kalandara
Ex PW 1/18 : Copy of DD No. 26B
Ex PW 1/19 : Copy of complaint dated 18.09.2007
Mark B(Colly) : Some photographs of suit premises
Ex PW 1/21 : Newspaper dated 25.09.2007.
Thereafter exparte final arguments were advanced by Ld Counsel for plaintiff. I have heard arguments advanced by Ld Counsel for the plaintiff and carefully scrutinized the record. My issue wise findings are as under :
Issue No. (1) Whether on the basis of plaint allegations plaintiff is entitled for a decree of permanent injunction as prayed for? OPP.
(2) Whether on the basis of plaint allegations plaintiff is Suit No. PRAMOD VS UMESH 12/19 entitled for a decree of mandatory injunction as prayed for ?
OPP.
(3) Whether on the basis of plaint allegations plaintiff is entitled for a decree of declaration in respect of the documents mentioned in clause III in prayer clause as prayed for? OPP :
16. These issues are taken up together being inter connected. The onus of issue no.3 due to an apparent typographical mistake wrongly reads as OPD. The same is corrected to read as 'OPP.'
17. The plaintiff has produced the chain of documents of the suit property starting from the original sale deed executed by Sh.Mangat Ram in favour of Sh. Satnam Singh as Ex PW 1/2 (OSR) which is duly registered with the SubRegistrar's office. Thereafter, Mark A and Ex PW 1/4 (OSR) to Ex PW 1/16 (OSR) is the chain of documentation of transfer proved by the plaintiff's uncontroverted testimony. The defendant no. 1 though filed a written statement alleging to have purchased a plot of 1000 square yards out of khasra No. 309/02, Village Siraspur, Delhi from one Sh. Sushil Kumar, and made the further averment that the said plot had been sold to Sh. Deepak Wadhwa through registered Sale Deed however did not Suit No. PRAMOD VS UMESH 13/19 choose to contest the case and lead evidence to prove his case.
18. Through the certified copy of the kalandra Ex PW 1/17 and DD entry Ex PW 1/18, the plaintiff established that an incident took place on 04.09.2007 between the plaintiff and the defendants 1 & 2 whereafter both parties were arrested and remained in custody for one day. The plaintiff's allegations that defendants were threatening to create third party interest in the suit property have gone untraversed. The plaintiff also relied on the judgment passed by the Ld Civil Judge, Delhi in suit no 554/07 dated 27.08.2012 titled Smt Nirmala Devi Vs Mr Umesh & Ors which pertained to 400 square yards in 2 bighas 1 bishwa of khasra no. 309/02, Village Siraspur, Delhi and had been filed against the same defendants. It was argued by Ld Counsel for the plaintiff that the said suit had infact been a connected suit filed on the same cause of action and for the same reliefs and had been decreed in favour of the plaintiff therein. Needless to say, with respect, the said judgment of the Ld Civil Judge is not binding on this court and this court shall decide the suit on the basis of material on record in the case at hand.
19. Plaintiff has sought a declaration that the documents of the plaintiff in respect of the suit plot are genuine and a further Suit No. PRAMOD VS UMESH 14/19 declaration that those of the defendants are null and void. The documents of the defendants have not been brought on record and tendered in evidence and in absence of this vital condition being fulfilled, no declaration can be granted regarding the documents of the defendants being null and void. However, since through the plaintiff's unrebutted testimony and the chain of documents starting from Ex PW 1/2(OSR) Registered Sale Deed in favour of Sh Satnam Singh to the documents of the plaintiff i.e. the Registered GPA (Ex PW 1/11), Receipt (Ex PW 1/12), Agreement to sale (Ex PW 1/13), Affidavit (Ex PW 1/14), possession letter (Ex PW 1/15) and will (Ex PW 1/16) all dated 08.03.2006 which stand proved the plaintiff is entitled to the declaration that the documents of the plaintiff are genuine. It is however made clear that neither has the plaintiff sought, nor can the grant of the aforesaid declaration be construed, to be a declaration regarding the ownership of the suit property since the documentation in favour of the plaintiff are admittedly the GPA, Agreement to Sell etc which as per settled law, are not strictly legally considered to be the documents of title. The parties would be at liberty to agitate the issue of ownership in appropriate legal proceedings as per legal advice received. Suit No. PRAMOD VS UMESH 15/19
21. However with respect to the suit property, since the plaintiff possesses the chain of documentation, the plaintiff has shown an interest/right better than that of the defendants through the uncontroverted chain of documentation exhibited and proved by the plaintiff. The threat to his right has also been proved by the plaintiff's untraversed oral and documentary. In absence of any opposition from the defendants the plaintiff has sufficently proved his case and entitlement to the reliefs of permanent injunction restraining the defendants from creating third party interest by selling, letting out, mortgage alienating etc the suit property as shown in red in the site plan as Ex PW 1/1. Plaintiff is also entitled to the relief of mandatory injunction against the defendants directing the defendants not to remove the boundary wall from the aforesaid property.
22. Further, plaintiff is entitled to the relief of permanent injunction against the defendants from creating third party interference in the peaceful enjoyment and possession of the suit property as well as permanent injunction restraining the defendants from forcibly dispossessing the plaintiff from the suit property as shown in red in the site plan Ex PW 1/1.
Issues 1 and 2 decided in favour of the plaintiff. Issue no. 3 decided Suit No. PRAMOD VS UMESH 16/19 partly in favour of the plaintiff.
Issue no. 4 : Whether the present suit is barred by provisions of Delhi Land Reforms Act? OPD.
23. The plaintiff has claimed the reliefs of injunctions and declaration regarding genuineness of the documents of the plaintiff and nullity of the documents of the defendants. Under Delhi Land Reforms Act, the kind of cases in respect of which the jurisdiction of the civil courts is barred has been specifically provided for. The plaintiff has not sought declaration of Bhumidar/Assami rights. The defendants were under a duty to show as to under which particular provision of the DLR Act the suit is barred which they failed to do. As such, the declarations and injunctions as sought by the plaintiff in this suit are not barred under the DLR Act.
Issue decided against the defendants.
Issue no 5: Whether the defendant is owner of the suit property? OPD.
24. The onus was cast on the defendants to prove this issue. The defendant has chosen not to contest the case and enter the witness box. He has miserably failed in discharging his onus. Suit No. PRAMOD VS UMESH 17/19
Issue is thus decided against the defendants. Issue no 6 : Any other relief which the plaintiff may be entitled for ? OPP.
25. In view of my discussion, on issues 1 to 5 above, I hold that the suit of the plaintiff stands partly decreed. The plaintiff is entitled to a decree of permanent injunction restraining the defendants from creating third party interest in the suit property as shown in red in the site plan as Ex PW 1/1. Plaintiff is further entitled to a decree of mandatory injunction restraining the defendants not to remove the boundary wall from the suit property. Further, plaintiff is entitled to a declaration that the documents of the plaintiff pertaining to the suit property (i.e. Ex PW 1/2 to Ex PW 1/16) are genuine however it is made clear that this declaration does not amount to a declaration of ownership of the suit property in favour of the plaintiff which issue may be agitated in accordance with law in appropriate proceedings as per legal advice received. The plaintiff is not entitled to a declaration regarding the documents of the defendants being null and void.
26. The plaintiff is however entitled to a decree of permanent Suit No. PRAMOD VS UMESH 18/19 injunction restraining the defendants from creating interference in the peaceful enjoyment and possession of the plaintiff in the suit premises. The plaintiff is also entitled to a decree of permanent injunction restraining the defendants from forcibly dispossessing the plaintiff from the suit property, shown in red in the site plan as Ex PW 1/1. No order as to costs.
27. Decree sheet be prepared accordingly.
28. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON 23.04.2013.
(ANJANI MAHAJAN) CIVIL JUDGE 17, CENTRAL, DELHI 23.04.2013 Suit No. PRAMOD VS UMESH 19/19