Delhi District Court
Also At vs Mahavir Singh on 17 May, 2014
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IN THE COURT OF SH. SIDDHARTHA MALIK CIVIL JUDGE (WEST) III
TIS HAZARI COURTS DELHI
SUIT NO. 160/10
DATE OF INSTITUTION : 08.09.2010
DATE ON WHICH RESERVED : 05.05.2014
DATE OF DISPOSAL : 17.05.2014
ZILE SINGH
S/O LATE SH. PHOOL SINGH
R/O VILLAGE AND POST OFFICE
NILOTHI, DELHI-110041
ALSO AT
A-22 DDA PLOTTED AREA
SECTOR-19, DWARKA, DELHI-75
....... PLAINTIFF
Versus
1 MAHAVIR SINGH
S/O ZILE SINGH
R/O VILLAGE AND POST OFFICE
NILOTHI, DELHI-110041
.....DEFENDANT
-:1:-
SUIT FOR PERMANENET INJUNCTION & DECLARATION
JUDGMENT
1. This common judgment will decide Suit No.24/10 and Suit No.160/10, pending in this Court between the same parties, which were consolidated for the purpose of evidence with consent of the parties.
2. In both the suits, Sh.Zile Singh is the plaintiff and Sh.Mahavir Singh is defendant no.1. In Suit No.24/10, the wife of Sh.Mahavir Singh is defendant no.2. Defendant nos. 3 & 4 in Suit No.24/10 did not contest the suit and were proceeded ex-parte.
3. Briefly stated, the case of the plaintiff is that the plaintiff is the recorded bhumidar and in possession of agricultural land comprised in Khasra No. 35/3 measuring 4 Bighas 16 Biswas & Khasra No. 35/4/1 measuring 3 Bighas, 4 Biswas & Khasra No. 35/4/2 measuring 1 Bighas 12 Biswas & Khasra No. 35/7 measuring 4 Bighas 16 Biswas & Khasra No. 35/8 measuring 4 Bighas 16 Biswas & Khasra No. 35/9/2 measuring 4 Bighas 8 Biswas, situated in revenue estate of Village Nilothi, Nangloi, Delhi (hereinafter referred to as 'suit property').
4. Further, the defendant no.1 is the son of the plaintiff who has not right, title or interest in the suit property. The plaintiff -:2:- avers that the defendants wish to take forceful possession of the suit property and have tried to carryout illegal construction in the property on a number of occasions. Plaintiff avers that the defendants are extending constant threats of encroachment and are interfering in the peaceful possession of the suit property by the plaintiff. Hence, the present suit.
5. Per contra, defendant no.1 & 2 have filed a detailed written statement submitting that the suit of the plaintiff has been filed without any cause of action. Defendants submit that the the land measuring 11 bighas & 16 biswas is in the possession of defendant no.1. Defendants aver that the plaintiff had executed a General Power of Attorney in favour of defendant no.1 on 11.01.1994 thereby authorizing the use and possession of the said portion to the defendant no.
1. Defendants have denied all the allegations leveled in the plaint.
6. After filing of WS by defendant nos.1 & 2, the plaintiff filed the Suit No.160/10 with the prayer of declaration that the alleged GPA dt. 11.01.1994 has been revoked/cancelled and does not confer any right or title to the defendant no.1. Plaintiff avers that the said GPA has been obtained by defendant no.1 after misusing the faith reposed by the plaintiff in defendant no.1, who is the son of the plaintiff. It is submitted that the plaintiff has cancelled the GPA vide revocation deed dt.28.05.2010.
-:3:-7. In reply to Suit No.160/10, the defendant no.1 submits in his WS that the GPA was executed by the plaintiff in all his senses in presence of the witnesses.
8. On the basis of the pleadings of the parties following issues were framed on 07.10.2010:
1 Whether the suit is not maintainable?OPD 2 Whether the plaintiff is entitled for a decree of permanent injunction, as prayed?OPP 3 Relief..
9. The following issues were framed in Suit No.160/10 on 06.01.2011:
1 Whether the present suit is not main being barred by Section 10 & Order 2 Rule 2 CPC?OPD 2 Whether the plaintiff has no locus standi to file the present suit?OPD 3 Whether the plaintiff has suppressed the material facts from the Court?OPD 4 Whether the plaintiff is entitled for the relief of declaration, as prayed?OPP 5 Whether the plaintiff is entitled for relief of permanent injunction, as prayed?OPP 6 Relief.
10. In PE, the plaintiff was examined as PW-1 on commission due to old age. The grand son of the plaintiff was examined as PW-2. In DE, defendant no.1 examined himself as DW-1, -:4:- Sh.Harbir Singh as DW-2 and one Sh.Rohtash was examined as DW-3.
11. Both the suits were consolidated for the purpose of evidence vide order dt. 04.04.2013 at request of both the parties.
12. Final Arguments were advanced by ld counsel for both the parties. I have perused the record and considered the arguments carefully and my issue-wise findings are as follows:-
Issue No. 2 of Suit No.24/10 & Issue Nos. 4 & 5 of Suit No. 160/10 2 Whether the plaintiff is entitled for a decree of permanent injunction, as prayed? OPP 4 Whether the plaintiff is entitled for the relief of declaration, as prayed?OPP & 5 Whether the plaintiff is entitled for relief of permanent injunction, as prayed?OPP
13. It is the case of the plaintiff that he is the bhoomidhar of the suit property and to establish the same the plaintiff has relied upon Ex.PW-1/1 to 1/3 in Suit No.24/10 i.e. the various revenue record documents such as Khatoni etc. which record the plaintiff as the bhoomidhar of the suit property.-:5:-
14. This fact has been admitted by the defendants and the bhoomidhari rights of the plaintiff over the suit property are not in dispute.
15. On the other hand, it is the case of the defendant no.1 that the plaintiff, who is the father of the defendant no.1, had executed a General Power of Attorney dt.11.01.1994 in the favour of defendant no.1 vide which the defendant no.1 came in actual physical possession of 11 bighas 16 biswas of the suit property.
16. The said GPA dt.11.01.1994 has been tendered in evidence as Ex.DW-1/2. The plaintiff has not disputed the existence of GPA but avers that the GPA was obtained by the defendant no.1 after misusing the trust reposed by the plaintiff upon defendant no.1. Further, the plaintiff submits that the GPA has been revoked vide Deed of Revocation dt. 28.05.2010 and a notice to the said revocation has been issued to the defendant no.1.
17. A perusal of the GPA Ex.DW-1/2 shows that the same is without any consideration and therefore is liable to be revoked by the executor at his own discretion. The GPA had only authorized the defendant no.1 to carry out certain acts on behalf of the plaintiff. No rights whatsoever have been transferred in favour of the defendant no.1. Thus, the defendant no.1 cannot claim ownership of the suit property portion on the basis of the GPA which confers no right in his favour.-:6:-
18. As the GPA Ex.DW-1/2 was not conferring any interest upon the defendant no.1 and was without any consideration, the plaintiff was well within his rights to revoke the same at his discretion. The plaintiff has placed on record the deed of revocation Ex.PW-1/1 dt.28.05.10 in Suit No.160/10. The Ex.PW-1/1 categorically states that the GPA dt.11.01.1994 has been revoked with immediate effect.
19. Plaintiff has further relied upon Ex.PW-1/2 in Suit No.160/10 which is the notice issued to the defendant no.1. The defendant no.1 has admitted during his cross examination to have received the said notice Ex.PW-1/2. Thus, the defendant no.1 had the knowledge of revocation of GPA in his favour dt.11.01.1994.
20. From the aforesaid it is clear that the plaintiff has validly revoked the GPA dt.11.01.1994 with effect from the deed of revocation i.e. 28.05.2010. Thus, from 28.05.2010 all authorities given to the defendant no.1 to manage a part of the suit property stood cancelled.
21. It is settled law that the possession of an attorney holder is in effect the possession of the person giving such attorney.
An attorney holder cannot set up a title which is independent and distinct from the executor of the attorney. Thus, the alleged possession of the defendant no.1 over a part of the suit property in pursuance to GPA dt.11.01.1994 is in effect the possession of the plaintiff himself. The -:7:- possession of defendant no.1 due to GPA dt.11.01.1994 cannot amount to alienation or dispossession of the plaintiff from the suit property.
22. As and when the GPA has been revoked, the permission granted to the attorney holder to use and manage the suit property has ceased to exist. Then onwards the attorney holder stops being in possession of the suit property, either on behalf of the executor or in any independent capacity.
23. The plaintiff is the admitted bhoomidhar of the suit property and S.22 of Delhi Land Reforms Act specifically provides that a bhoomidhar has the right to exclusive possession of his land holding. Thus, only the bhoomidhar i.e. the plaintiff or any person who has the authority of the bhoomidhar can use and manage the suit property.
24. In the present suit, the suit property is vacant agricultural land and the possession of the same is only symbolic which is depicted in the revenue records. This is not a case like built up structures which require actual entering and living in the structure to constitute possession. Thus, once the plaintiff has revoked the authority of defendant no.1 to enter the suit property, no further act such as actual transfer of possession is required.
25. Except for the existence of GPA dt.11.01.1994, the defendant no.1 has not avered any independent right which would entitle him to possess the suit property.
-:8:-26. At this stage it is important to note that the defendant no.1 has relied upon Mark A which is the photocopy of an alleged panchayati decision vide which the suit property portion was given to the defendant no.1. However, the said Mark A has not been tendered in evidence as per the provisions of Indian Evidence Act. The Mark A is a photocopy document but the defendant no.1 has not given any explanation for not producing its original. The defendant has avered that the original is with the plaintiff but has not taken any legal steps to compel the plaintiff to produce the same.
27. It is settled law that primary evidence i.e. the original document is required to prove a document. A secondary evidence such as a photocopy can only be allowed if the non production of the primary evidence can be sufficiently established within the contours of Evidence Act. The testimony of DW-2 & DW-3 regarding their signatures on Mark A does not dispense with the requirement of proving a document by primary evidence.
28. Moreover, if it is assumed that the averment of defendant no.1 is correct and that Mark A indeed amounted to partition of suit property in favour of the defendant no.1, it required compulsory registration as a right was being created in favour of the defendant no.1. On this account also Mark A is not admissible in evidence in view of S.17 of Registration Act. In addition to the aforesaid, a bare perusal of Mark A shows that the same is written in vague terms and there is -:9:- no identification of the properties alleged given to the defendant no.1 and there is nothing to suggest that the same relates to the suit property.
29. In view of the aforesaid, it is clear that after revocation of GPA dt.11.01.1994, the defendants had no right to interfere in the peaceful possession of the suit property by the plantiff.
30. Accordingly, the aforesaid issues are decided in favour of the plaintiff and against the defendants.
Issue No.1 of Suit No.24/10 & Issue Nos.1, 2 & 3 of Suit No.160/10 1 Whether the suit is not maintainable?OPD & 1 Whether the present suit is not maintainable being barred by Section 10 & Order 2 Rule 2 CPC?OPD 2 Whether the plaintiff has no locus standi to file the present suit?OPD & 3 Whether the plaintiff has suppressed the material facts from the Court?OPD
31. The onus to prove these issues was upon the defendants. However, no evidence has been led by the defendants to establish these issues.
32. The subject matter and relief sought in Suit No.24/10 & Suit No.160/10 were different and it cannot be held that the pre -:10:- existence of Suit No.24/10 would attract S.10 CPC. Further, the cause of action for Suit No.160/10 arose only after filing of WS in Suit No.24/10 and thus, it cannot be held that the plaintiff should have included the relief of Suit No.160/10 in the Suit No.24/10 so as to invoke Order 2 Rule 2 CPC.
33. Moreover, as the plaintiff is the admitted bhoomidhar of the suit property, there can be no question regarding the locus of the plaintiff to institute the suit for declaration or injunction. Further, the defendants have failed to disclose any material fact which the plaintiff has concealed from the Court.
34. Accordingly, the aforesaid issues are decided against the defendants.
Issue No.3 of Suit No.24/10 & Issue No.6 of Suit No.160/10 3 Relief & 6 Relief
35. In view of the aforesaid discussion, the suit of the plaintiff is decreed against the defendants. It is declared that the plaintiff has legally revoked the General Power of Attorney dated 11.01.1994 in favour of defendant no.1. The defendants and any person claiming through them are restrained from interfering in the peaceful possession of the plaintiff in agricultural land comprised in Khasra No. 35/3 measuring 4 Bighas 16 Biswas & Khasra No. 35/4/1 measuring 3 Bighas, 4 Biswas & Khasra No. 35/4/2 -:11:- measuring 1 Bighas 12 Biswas & Khasra No. 35/7 measuring 4 Bighas 16 Biswas & Khasra No. 35/8 measuring 4 Bighas 16 Biswas & Khasra No. 35/9/2 measuring 4 Bighas 8 Biswas, situated in revenue estate of Village Nilothi, Nangloi, Delhi and are further restrained from creating any third party interest qua the aforesaid property. Plaintiff is also entitled to costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the Open Court today i.e 17.05.2014 (Siddhartha Malik) CJ(West)III,THC/Delhi 17.05.2014 -:12:-