Delhi District Court
Sharda Devi vs Sachin Jain on 27 September, 2023
THE COURT OF MS SHUBHI GUPTA
CIVIL JUDGE ( EAST), KARKARDOOMA COURTS,
DELHI
Civ Suit 518/18
Date of Institution of suit : 31.05.2018
Date of Reservation of Judgment : 11.09.2023
Date of Passing of Judgment : 27.09.2023
1. Smt. Sharda Devi W/o Sukhveer Singh
2. Sukhveer Singh S/o Sh. Sakru Ram
Both R/o H. No. 194-195, Block 30, (old)
Trilokpuri, Delhi-110091
2nd Address: CPA-13, New Seelampur,
Delhi-53
.................Plaintiffs
Vs.
1. Sachin Jain S/o Jai Kumar Jain
2. Smt. Anjali W/o Sachin Jain
Both R/o H.No. 29/160, Trilokpuri,
Delhi-110091
..............Defendants
SUIT FOR DECLARATION AND PERMANENT
INJUNCTION
EX-PARTE JUDGMENT
1. Brief facts of the present case as per plaint are that
the plaintiffs are the owners/landlors (allottees) and in actual and
physical possession of property/house/plot nos. 194-195, block
30 (old), Trilokpuri, Delhi-110091, measuring about 45 sq.yds.
(hereinafter called the same as suit property as show in in red in
Civ Suit 518/18 Sharda Devi Vs. Sachin Jain 1/16
the attached site plan). The plot no. 194, block-30, Trilokpuri,
Delhi was allotted to the plaintiff no. 1 in the year 1977 from the
DDA (Jhuggi Jhopri Removal Scheme) vide its possession slip
no. 2930 against the demolition slip no. 3950 dated 15.02.1977
and plaintiff no. 1 Smt. Sharda Devi deposited the required
amount of Rs. 144/- to the DDA on 18.10.1977 for the same.
Similarly, plot no. 195, block- 30, Trilokpuri, Delhi was allotted
to the father of plaintiff no. 2 namely Sakru Ram S/o Bhagwat
Parsad, in the year 1977 from the DDA (Jhuggi Jhopri Removal
Scheme) vide its possession slip no. 2931 against the demolition
slip no. 2931 against the demolition slip no. 3951 dated
25.02.1977 and Sakru Ram deposited the required amount of Rs.
146/- to the DDA on 18.10.1977 for the same, the possession
slips were deposited in the office of DDA at the time of
depositing the above said amount vide receipts dated 18.10.1977.
Both the persons Sharda Devi and Sakru Ram jointly constructed
the said both plots and remained in possession and residing there
alongwith their family members since the day of allotment.
2. It is further stated that plaintiff no. 1 Smt. Sharda
Devi and Sakru Ram were continuously residing in the above
said plots and both the persons have got their ration card at the
said address. Ration card no. 379978 dated 01.1.1983 was issued
in the name of plaintiff no. 1 at the address of plot no. 194,
block-30, Trilokpuri, Delhi and ration card no. 402145 dated
01.01.1983 was issued in the name of Sakru Ram at the address
plot no. 195, block-30, Trilokpuri, Delhi, both the persons were
taking Ration etc. through the said ration cards.
3. It is further stated that Sakru Ram has also obtained
the electricity connection at the suit property in the year 1982 and
deposited required amount for the same on 20.07.1982 and the
Civ Suit 518/18 Sharda Devi Vs. Sachin Jain 2/16
plaintiff no. 1 also applied for water connection and deposited
amount of Rs. 80/- for the same vide receipt no. 58021 dated
14.06.1989. The water connection was issued in the name of
plaintiff no. 1. MCD had also issued notice in the name of the
plaintiff for payment of property tax.
4. It is further stated that in the meantime plaintiff no. 2
had purchased a property no. CPA 13, new seelampur, Delhi and
some family members of plaintiffs were shifted there but
5. It is further stated that on 17.10.1994, Sakru Ram
has expired thereafter his only son plaintiff no. 2 became
owner/landlord of property plot no. 195, Block-30, Trilokpuri,
Delhi being his legal heir and remained in continuous possession
of the same.
6. It is further stated that plaintiffs being
owner/landlord are residing and remain in possession of the suit
property since the day of allotment of the same from the DDA.
Neither any other person except plaintiffs are the owner/landlord
nor remain in possession at any portion of the suit property.
7. It is further stated that the suit property was never
allotted to any Banshi Lal or Parkash and they were never
remained in possession of the same. Defendants and their
associates got prepared forged and fabricated documents i.e.
possession slip no. 1519 in the name of Bansi Lal S/o Ram Lal
and possession slip no. 1520 in the name of Prakash S/o Bal
Kishan in back date 28.03.1977 and further got prepared forged
and fabricated notarized General Power of Attorney, Agreement
to sell, Affidavit, possession letter, Will deed and receipt of full
and final payment etc vide dated 03.10.17 from the said Bansi
Lal and Prakash in the name of defendant no. 1 Sachin Jain. The
said persons are not known in the locality and they are fictitious
Civ Suit 518/18 Sharda Devi Vs. Sachin Jain 3/16
persons, thereafter, defendant no. 1 got prepared forged,
fabricated, void and illegal documents in the name of his wife
defendante no. 2 i.e. Registered General Power of Attorney dated
02.11.2017. Defendant no. 2 filed a civil suit for possession with
intention to grab the suit property in the court of Ld. SCJ East,
vide CS No. 998/17 Anjali Vs Sukhveer Singh etc without
jurisdiction, valuation and without cause of action and defendant
no. 2 has filed said forged and fabricated documents in the said
civil case and copies of the said forged documents supplied to the
plaintiffs with summons of the case CS no. 298/2017 on
20.12.2017 and then first time plaintiffs got the knowledge about
the said documents.
8. It is further stated that onn 08.10.2017 defendant no.
1 Sachin Jain and his associates threatened the plaintiffs to take
forcible/illegal possession on the suit property and for putting
their locks on the door of the suit property at any time in future
and also threatened to kill the plaintiffs and their family
members, if they objected or obstructed them in their illegal
objects. The plaintiffs called the PCR on 08.10.2017 and also
moved a complaint to the SHO PS Mayur Vihar, Delhi vide DD
no. 42-B dated 09.10.2017 and a complaint to the DCP dated
11.10.2017 and 10.01.2018 against the defendants and their
associates but police did not take any action by saying that it is a
property dispute and the same shall be decided by the civil court.
9. It is further stated that the property of the plaintiff
no. 2 situated at Seelampur, Delhi which is 22 sq.yds and not
sufficient for a family of 8 members to reside there, so the
plaintiffs with some family members are residing in the suit
property bu the plaintiffs are in grave apprehension that the
defendants and their associates would dispossess the plaintiffs
Civ Suit 518/18 Sharda Devi Vs. Sachin Jain 4/16
illegally and forcibly from the suit property at any time in future
and would cause any dangerous criminal incident by themselves
or through their hired criminal elements.
10. It is further stated that on 16.03.2018, the defendants
and their associates openly threatened that they are
builders/contractors and used to take forcible possession of such
plots and construct flats and sell the flats to different persons and
set them in possession on the basis of forged and fabricated
documents and no legal action would be done against them
because they are having good links with the police, MCD, DDA,
BSES and other departments and also threatened to dispossess
the plaintiff from suit property. When the plaintiffs raised the
objections, the defendants threatened to kill the plaintiffs and
their family members and also flatly refused to cancel their above
said forged documents, while all the said documents mentioned
in para 7 of the plaint is in the name of Bansi Lal, Prakash and
defendants are forged, fabricated, null and void.
11. It is further stated that on 11.04.2018 at about 3:10
a.m, the defendants through their hired 4-5 gundas with deadly
weapons at the suit property tried to break open the door but they
could not succeed in their illegal aim but they openly abused and
threatened the plaintiffs and his family members who were inside
the suit property to vacate the suit property otherwise they would
kill them at any time. The plaintiffs called the PCR immediately
bu the police reached at the spot after a long time but did not take
any action. Then the plaintiffs moved a written complaint to the
SHO PS Mayur Vihar, Phase-I, vide DD no. 30-B dated
11.04.2018 and other police authorities but no avail.
12. The defence of the defendant had struck off due to
non prosecution of the defendant vide order dated 25.09.2018.
Civ Suit 518/18 Sharda Devi Vs. Sachin Jain 5/16
Accordingly, the defendant was proceeded ex-parte vide order
dated 22.02.2022 by Ld. Predecessor of this court.
13. In order to prove its case plaintiff has examined
herself as PW-1 and has tendered in evidence duly sworn in
affidavit of herself. Same is Ex. PW 1/A and has relied upon the
following documents :
1. Ex. PW-1/1 (OSR) : Site plan of suit
property.
2. Mark PW-1/A : Copy of possession
slip no. 1519.
3. Mark PW-1/B : Copy of possession
slip no. 1520.
4. Mark PW-1/C(colly 29 pages) : Copy of GPA,
Agreement to sell,
affidavit, possession
letter, Will deed,
receipt of full and
final payment all
dated 03.10.2017
executed by Prakash
and Bansi Lal in
the name of Sachin
Jain (separate two
sets).
5. Mark PW-1/D(colly 6 pages) : Copy of registered
GPA dated
02.11.2017
executed by Sachin
Jain in the name of
Civ Suit 518/18 Sharda Devi Vs. Sachin Jain 6/16
Anjali.
6. Ex. PW-1/2 (OSR) : DDA receipt dated
18.10.1977 in the
name of Sharda
Devi.
7. Ex. PW-1/3(OSR) : DDA receipt daed
18.10.1977 in the
name of Sakru Ram.
8. Ex. PW-1/4 (OSR) : Receipt dated
20.07.1982 Delhi
Electricity Board.
9. Ex. PW-1/5(OSR) : Receipt of Delhi Jal
Board dated
14.06.1989.
10. Ex. PW-1/6(OSR) : Paid bill of DJB
dated 26.12.2017.
11. Ex. PW-1/7(OSR) : Old ration card of
Sharda Devi issued
on 01.01.1983.
12. Ex. PW-1/8 (OSR) : Old ration card of
Sakru Ram issued on
01.01.1983.
13. Ex. PW-1/8A(OSR) : Birth certificate of
Nisha D/o Aman Pal
dated 11.11.1987.
14. Ex. PW-1/9(OSR) : Aadhaar Card of
Sukhveer Singh.
15. Ex. PW-1/10(OSR) : Aadhaar Card of
Sharda Devi.
16. Ex. PW-1/11(OSR) : Police complaint
Civ Suit 518/18 Sharda Devi Vs. Sachin Jain 7/16
dated 09.10.2017.
17. Ex. PW-1/12(OSR) : Police complaint
dated 11.10.2017.
18. Ex. PW-1/13(OSR) : Police complaint
dated 10.01.2018.
19. Ex. PW-1/14(OSR) : Police complaint
dated 11.04.18 (vide
DD no. 30B).
20. Ex. PW-1/15(OSR) : Complaint dated
11.10.2017 to BSES.
21. Ex. PW-1/16(OSR) : Application dated
19.12.2017 to BSES.
22. Ex. PW-1/17(OSR) : Acknowledgement
for new connection
dated 04.12.2017.
23. Ex. PW-1/18(OSR) : Notice dated
18.01.2018 u/s 123A
& 123B of DMC Act
in the name of the
plaintiff no. 1.
24. Ex. PW-1/19(OSR) : Notice dated
18.01.2018 u/s 123A
& 123B of DMC Act
in the name of the
plaintiff no. 2.
25. Ex. PW-1/20(OSR) : Certified copy of
plaint CS no.
998/2017
titled Smt. Anjali Vs.
Sukhveer Singh
Civ Suit 518/18 Sharda Devi Vs. Sachin Jain 8/16
etc.
26. Ex. PW-1/21(OSR) : Certified copy of
order dated
20.07.2018
in case CS no.
998/2017 titled Smt.
Anjali Vs. Sukhveer
Singh etc.
14. Plaintiff had also examined Sh. Sukhbir Singh S/o
Late Sakru Ram R/o H.No. 194-195 Block 30, Trilokpuri, Delhi-
91 as PW-2 and has tendered in evidence duly sworn in affidavit
of himself. Same is Ex. PW2/A and has relied upon the
documents already Ex. PW-1/1 to Ex. PW-1/21 (OSR). He has
also relied upon the documents already Mark A, B, C, D i.e.
Copy of possession slip no. 1519 and 1520 and Copy of GPA etc
containing pages 29 and copy of registered GPA containing pages
6.
15. Plaintiff had also examined Sh. Alok Mishra, S.S.A.
LM East, DDA as PW-3 who was called for original records of
possession slip vide book no. L, no. 1520 dated 28.02.1977 in
the name of Prakash S/o Bal Kishan, with demolition slip no. 794
JJ Colony TP (Trilokpuri) plot no. 30/195 and possession slip
vide book no. L, no. 1519 dated 28.02.1977 in the name of Bansi
Lal S/o Ram Lal with demolition slip no. 793 JJ Colony TP
(Trilokpuri) plot no. 30/194. It was stated by PW-3 that the
abovesaid records are not traceable in their office. He also stated
that he was not sure whether the aforementioned possession slips
are issued from DDA or DUSIB.
Civ Suit 518/18 Sharda Devi Vs. Sachin Jain 9/16
16. Plaintiff has also examined Sh. Shriniwas, MTS,
Office at Sub-Registrar VIII, Geeta Colony who was called for
original records of General Power of Attorney executed by Sh.
Sachin @ Sachin Jain S/o Sh. Jai Kumar Jain R/o House No.
29/160, Trilokpuri, Delhi-110091 in favour of his wife Smt.
Anjali and certified copy of the same is Ex. PW-4/A(colly 6
pages) which is registered vide registration no. 1282 in Book No.
4, Volume No. 4384 on pages 37 to 40 on 14.11.2017.
17. Plaintiff had also examined Sh. Manoj Kumar S/o
Sh. Sukhbir Singh R/o H.No. CPA-13, New Seelampur, Delhi-53
and has relied upon Ex. PW-5/1 (OSR) which is the Aadhaar card
of PW-5.
18. I have heard the final arguments adduced by Ld.
counsel for plaintiff and perused the record.
19. It is to be noted that :
Order VIII Rule 5 of CPC provides:
5. Specific denial
(1) Every allegation of fact in the plaint, if not denied
specifically or by necessary implication, or stated to be not
admitted in the pleading of the defendant, shall be taken to
be admitted except as against a person under disability.
Provided that the Court may in its discretion require any
fact so admitted to be proved otherwise than by such
admission.
(2) Where the defendant has not filed a pleading, it shall be
lawful for the court to pronounce judgment on the basis of
the facts contained in the plaint, except as against a person
under a disability, but the Court may, in its discretion,
require any such fact to be proved.
Order VIII Rule 10 of CPC provides:
Civ Suit 518/18 Sharda Devi Vs. Sachin Jain 10/16
10. Procedure when party fails to present written statement
called for by Court.--
Where any party from whom a written statement is
required under rule 1 or rule 9 fails to present the same
within the time permitted or fixed by the Court, as the case
may be, the Court shall pronounce judgment against him,
or make such order in relation to the suit as it thinks fit and
on the pronouncement of such judgment a decree shall be
drawn up.
Section 58 of Evidence Act provides:
58. Facts admitted need not be proved.--No fact need be
proved in any proceeding which the parties thereto or their
agents agree to admit at the hearing, or which, before the
hearing, they agree to admit by any writing under their
hands, or which by any rule of pleading in force at the time
they are deemed to have admitted by their pleadings.
Provided that the Court may, in its discretion, require the
facts admitted to be proved otherwise than by such
admissions.
Order 9 Rule 6 of CPC provides:
Procedure when only plaintiff appears.--(1) Where the
plaintiff appears and the defendant does not appear when
the suit is called on for hearing, then--
(a) When summons duly served.--if it is proved that the
summons was duly served, the Court may make an order
that the suit shall be heard ex parte;
In Balraj Taneja & Anr vs Sunil Madan & Anr (1999)
8 SCC 396, Hon'ble Supreme Court held that:
"There are thus two separate and distinct provisions under
which the Court can pronounce judgment on the failure of
the defendant to file Written Statement. The failure may be
either under Order 8 Rule 5(2) under which the Court may
either pronounce judgment on the basis of the facts set out
in the plaint or require the plaintiff to prove any such fact;
or the failure may be under Order 8 Rule 10 CPC under
which the Court is required to pronounce judgment against
the defendant or to pass such order in relation to the suit as
it thinks fit.
Civ Suit 518/18 Sharda Devi Vs. Sachin Jain 11/16
This court, in Sangram Singh v. Election Tribunal, Kotah
& Anr. AIR 1955 SC 425 = 1955 (1) SCR 1, observed on
page 432 of the report as under :
"(32) We have already seen that when a summons is issued
to the defendant it must state whether the hearing is for the
settlement of issues only or for the final disposal of the suit
(O.5, R.5). In either event, O.8, R.1 comes into play and if
the defendant does not present a written statement of his
defence, the Court can insist that he shall; and if, on being
required to do so, he fails to comply "the Court may
pronounce judgment against him, or make such order in
relation to the suit as it thinks fit." (O.8, R.10).
This invests the Court with the widest possible discretion
and enables it to see that justice is done to `both' sides; and
also to witnesses if they are present: a matter on which we
shall dwell later.
(33) We have seen that if the defendant does not appear at
the first hearing, the Court can proceed `ex parte', which
means that it can proceed without a written statement; and
O.9, R.7 makes it clear that unless good cause is shown the
defendant cannot be relegated to the position that he would
have occupied if he had appeared. That means that he
cannot put in a written statement unless he is allowed to do
so, and if the case is one in which the Court considers a
written statement should have been put in, the
consequences entailed by O.8, R.10 must be suffered.
What those consequences should be in a given case is for
the Court, in the exercise of its judicial discretion, to
determine. No hard and fast rule can be laid down. In some
cases, an order awarding costs to the plaintiff would meet
the ends of justice: an adjournment can be granted or a
written statement can be considered on the spot and issues
framed. In other cases, the ends of justice may call for
more drastic action.
....
As pointed out earlier, the Court has not to act blindly upon the admission of a fact made by the defendant in his Written Statement nor the Court should proceed to pass judgment blindly merely because a Written Statement has not been filed by the defendant traversing the facts set out by the plaintiff in the plaint filed in the Court. In a case, Civ Suit 518/18 Sharda Devi Vs. Sachin Jain 12/16 specially where a Written Statement has not been filed by the defendant, the Court should be a little cautious in proceeding under Order 8 Rule 10 CPC. Before passing the judgment against the defendant it must see to it that even if the facts set out in the plaint are treated to have been admitted, a judgment could possibly be passed in favour of the plaintiff without requiring him to prove any fact mentioned in the plaint. It is a matter of Court's satisfaction and, therefore, only on being satisfied that there is no fact which need be proved on account of deemed admission, the Court can conveniently pass a judgment against the defendant who has not filed the Written Statement. But if the plaint itself indicates that there are disputed questions of fact involved in the case regarding which two different versions are set out in the plaint itself, it would not be safe for the Court to pass a judgment without requiring the plaintiff to prove the facts so as to settle the factual controversy. Such a case would be covered by the expression "the Court may, in its discretion, require any such fact to be proved" used in sub- rule (2) of Rule 5 of Order 8, or the expression "may make such order in relation to the suit as it thinks fit" used in Rule 10 of Order
8."
In the matter of Anil Rishi V/s Gurbaksh Singh, (2006) 5 SCC 558, Hon'ble Supreme court has observed that:
"The initial burden of proof would be on the plaintiff in view of Section 101 of the Evidence Act, which reads as under:-
"Sec. 101. Burden of proof. # Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."
In terms of the said provision, the burden of proving the fact rests on the party who substantially asserts the affirmative issues and not the party who denies it. The said rule may not be universal in its application and there may be exception thereto. The learned trial Court and the High Court proceeded on the basis that the defendant was in a Civ Suit 518/18 Sharda Devi Vs. Sachin Jain 13/16 dominating position and there had been a fiduciary relationship between the parties. The appellant in his written statement denied and disputed the said averments made in the plaint.
Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side."
20. It is apropos to mention that in order to prove its case plaintiff got examined herself as PW-1. Mark PW-1/A and Mark PW-1/B are the possession slips no. 1519 and 1520 in the name of Bansi Lal and Prakash respectively. The plaintiff has deposed that the documents of the defendant i.e. Mark PW-1/A to Mark PW-1/D are forged and fabricated. Ex. PW-1/2 is the DDA receipt dated 18.10.1977 in the name of the plaintiff and Ex. PW- 1/3 is the DDA receipt dated 18.10.1977 in the name of Sakru Ram. The plaintiff in the present suit has sought declaration of the documents i.e. Mark PW-1/A to Mark PW-1/D as null and void. The plaintiffs have stated that they came to know about these documents when defendants filed a civil suit for possession of the suit property in the case bearing no. 998/17. The plaintiffs herein had examined PW-3 who is the summoned witness of DDA who stated that the possession slips no. 1519 and 1520 in the name of Bansi Lal and Prakash are not traceable. He further Civ Suit 518/18 Sharda Devi Vs. Sachin Jain 14/16 deposed that he is not sure whether aforementioned possession slips are issued from DDA or DUSIB. The plaintiff herein has not examined any witness from DUSIB. The summoned witness of DDA has not stated that the possession slips in the name of Bansi Lal and Prakash are not issued from DDA or DUSIB. He has not stated that this record is not found in DDA.
21. This court is of the considered opinion that the plaintiffs have not discharged their initial burden to show that the documents filed on behalf of the defendants are null and void, therefore, the relief sought in prayer clause "A" of the plaint is declined.
22. The plaintiffs had deposed that they are in the possession of the suit property. Ex. PW-1/6 is the water bill dated 26.12.2017 in the name of the plaintiff showing that plaintiff is still in the possession of suit property.
23. Record reveals that plaintiffs are in settled possession of the suit property. Plaintiffs have stated that they are in settled possession of the suit property. The testimony of the plaintiff remained unrebutted as the defendants were proceeded ex-parte.
24. Therefore, considering the settled possession of the plaintiffs qua the suit property; defendants, their agents, attorneys are restrained from forcibly entering and interfering in the peaceful use and possession of the plaintiffs qua the suit property. The defendants are further restrained from dispossessing the plaintiffs from the suit property except with due process of law and from creating any third party interest qua the suit property.
25. It is hereby clarified that in present judgment, the court has not declared in any manner the plaintiff to be the rightful allottee of the suit property in fact, the court has not Civ Suit 518/18 Sharda Devi Vs. Sachin Jain 15/16 passed any kind of opinion whether or not plaintiff is the allottee of the suit property on the basis of the documents filed on behalf of the plaintiff.
26. No order as to costs.
27. Decree sheet be prepared accordingly.
28. File be consigned to Record Room after due compliance.
(this order contains 16 pages and each page has been signed by me.) Pronounced in the open court (Shubhi Gupta) today i.e. on 27.09.2023 Civil Judge(East)/Delhi Civ Suit 518/18 Sharda Devi Vs. Sachin Jain 16/16