Delhi District Court
Babu Ram S/O Sh. Lakhi Ram vs Mohd. Idris on 14 July, 2010
IN THE COURT OF MS. NIRJA BHATIA, SENIOR CIVIL JUDGE
(EAST), KKD, COURTS, DELHI
Suit No. 512/06
1. Babu Ram S/o Sh. Lakhi Ram
R/o Village Tukmirpur, Dayalpur,
Shahdara, Delhi110094
2. Santosh Kumar Sharma
S/o Late Sh. Krishan Lal Sharma
3. Satish Kumar Sharma
S/o Late Sh. Krishan Lal Sharma
4. Smt. Kamlesh Sharma
W/o Late Sh. Krishan Lal Sharma
5. Smt. Shashi Sharma
D/o Late Sh. Krishan Lal Sharma
(Defendant no. 2 to 5 are the Legal Representative of
Late Sh. Krishan Lal Sharma and are resident of
A12/19, Tukhmir Pur Road,
Dayal pur Extension, Delhi110094
6. Vajinder
S/o Sh. Ram Pal
R/o Chandu Nagar, Gali no.3,
Delhi94 ....Plaintiffs
Versus
1. Mohd. Idris
R/o F215218, Old Seemapuri,
Plot no. 8A, Chand Bagh
Main Road, Wazirabad,
Delhi
2. Smt. Yasmin
W/o Mohd Idris
R/o F215218, Old Seemapuri,
Delhi ...Defendants
Nature of Suit : Suit for Declaration, Possession, Recovery
of mesne profits and Injunction.
Date of Institution : 31/01/1995
Reserved for order : 05/07/2010
Date of Decision : 14/07/2010
Suits NO. 512/06 and 511/06 1/60
Suit No. 511/06
Dr.Mohd. Idrees (Raja)
S/o Sh. Jamaluddin
R/o F6, Chand Bagh, Wazirabad Road,
Delhi94 .... Plaintiffs
Versus
1. Parveen Kumar
S/o Sh. Sohan Lal
R/o IX/3496, Gian Mohalla
Dharampura, Gandhi Nagar,
Delhi
2. Babu Ram
C/o M/s National Property Dealers
A42, Chandu Nagar,
Karawal Nagar Road,
Delhi94
3. Anil Kumar Bhardwaj
PS Gokal Puri, Delhi94
4. Uddham Singh
PS Gokal Puri, Delhi94 ..... Defendants
Nature of suit : Suit for Perpetual Injunction
Date of Institution : 01/06/1989
Reserved for order : 05/07/2010
Date of Decision : 14/07/2010
JUDGMENT
1. By this judgment I shall decide the present suit filed by the plaintiff for seeking the relief of declaration, possession, recovery of mesne profits and injunction.
2. The brief facts necessary for the disposal of the present suit have been detailed as under.
3. It is disclosed by the plaintiffs that they are the owners of the plot Suits NO. 512/06 and 511/06 2/60 bearing no. 8A (Municipal No. F6), under Khasra no. 24/2, Chand Bagh, Delhi measuring 250 sq yards as shown red in the site plan. The plot is stated to be bounded as under: East : Plot no. 8 of Sh. Shyam Lal West : Plot no. 9 North : Street 15' wide South : Wazirabad Road
4. Plaintiffs state that initially Sh. Anoop Singh S/o Sh. Laja Ram R/o Village Maujpur, Illaqua Shahdara, Delhi was the recorded owner and Bhumidar of plot no. 8, Chand Bagh, Delhi under Khasra no.24/2. The said plot was measuring about 500 sq yards. Lateron Sh. Anoop Singh divided the plot in two parts of 250 sq yards each and renumbered it as the plot no. 8 and plot no. 8A respectively. Thereafter Sh. Anoop Singh sold plot no. 8 measuring 250 sq yards out of the above mentioned Khasra no. 24/2 to Sh. Shyam Lal S/o Sh. L. Jaswant Rai and Sh. Shanker Dass S/o Sh. Shyam Lal vide agreement to sell dated 07/03/1974 for a total consideration of Rs. 5000/. The said plot which has been sold to Sh. Shyam Lal has been bounded as under: East : Plot of Iliachi Devi West : Plot of Parveen North : Wazirabad Road South : Gali 15' wide.
Suits NO. 512/06 and 511/06 3/60
5. Consequent to the above mentioned sale agreement Sh. Anoop Singh received full consideration and delivered the possession of the plot no. 8, Chand Bagh to Sh. Shyam Lal and Shanker Dass. He also executed GPA in favour of Sh. Shyam Lal and Shanker Dass which was duly registered in the office of Registrar as document no. 5217, Volume no. 237, Additional Book no. 4 from page 63 to 64.
6. Sh. Anoop Singh thereafter agreed to sell plot no. 8A measuring 250 sq yards out of Khasra no. 24/2 to Sh. Parveen Kumar S/o Sh. Sohan Lal R/o 719/54B/2F, Mohalla Gian Nagar, Dharampura, Gandhi Nagar, Delhi31 vide agreement to sell dated 07/03/1974 for a consideration of Rs. 5000/. The said plot is bounded as under: East : Plot of Sham Lal West : Plot no. 9 North : Wazirabad Road South : Gali 15' wide
7. After receiving the entire consideration in pursuance of agreement to sell, vacant possession of plot no. 8A, Chand Bagh has been handed over to Sh. Parveen Kumar. It is stated that Sh. Anoop Singh also executed GPA dated 07/03/1974 in favour of Sh. Parveen Kumar in respect of plot no. 8A which is duly registered in the office of registrar as document no. 5215, volume no. 237, Additional Book no. 4, pages 65 to 66. Suits NO. 512/06 and 511/06 4/60
8. Plaintiffs state that lateron, Parveen Kumar constructed two shops, one room and boundary wall on and over the plot no. 8A, Chand Bagh. He also installed one hand pump in the said plot. On or about 25/04/1982 when Parveen Kumar visited the plot, he was shocked to find that one Sh. Habib Ahmed and Ramjan were in occupation of his plot. Both the above named persons were requested by Sh. Parveen Kumar to deliver back the possession, however, when they refused, Sh. Parveen Kumar initiated criminal proceedings u/s 145 Cr. PC against Sh. Habib Ahmed and Ramjan. Sh. Habib Ahmed and Ramjan contested the proceedings on the ground that they had purchased the property from Sh. Shyam Lal. During the proceedings they both were satisfied by the averments of Sh. Parveen Kumar that Shyam Lal was the owner of plot no. 8 and not of plot no. 8A and hence he had no right to sell plot no.8A, Chand Bagh. In pursuance of this, a compromise was arrived at between Sh. Parveen Kumar, Sh. Habib Ahmed and Sh. Ramjan whereafter they delivered the vacant possession of plot no. 8A. Thereafter Sh. Parveen Kumar did not cause appearance in the proceedings u/s 145 Cr. PC thereby letting it being dismissed in default on 20/03/1986.
9. Sh. Parveen Kumar on 16/05/1989 entered into agreement to sell with the present plaintiff for a total consideration of Rs. 1,35,000/ and Suits NO. 512/06 and 511/06 5/60 after receiving the entire sale consideration issued receipt on the same day which was registered with the office of Registrar as document 23600, in additional Book no. 4, Volume 2236 on page 83. In part performance of agreement Sh. Parveen Kumar delivered the possession of plot no. 8A with superstructure to the plaintiff and also executed GPA in favour of the plaintiff. Thus it is claimed that plaintiff became lawful owner of the plot bearing no. 8A, Chand Bagh bearing Municipal NO. F6 alongwith its superstructure.
10. Plaintiffs claim that they appointed Smt. Shakila as caretaker to lookafter the property in suit. After appointment, Smt. Shakila had to visit her village and before leaving she put her locks on the doors and went to her native village. When Smt. Shakila came back on 28/05/1989 she was surprised to find that locks put by her have been removed and other locks have been put on the suit property. On inquiry plaintiffs came to know that locks have been put by one person who called himself ' Doctor' . On subsequent inquiry plaintiffs came to know that defendant no. 1 had put his locks on the door. Plaintiffs thereafter requested defendant no. 1 to deliver back the possession as he was in wrongful occupation of the suit property, however defendant no. 1 instead of delivering back the possession of the suit property filed the suit for perpetual injunction against the plaintiff Suits NO. 512/06 and 511/06 6/60 being suit no. 288/89 titled as Mohd Idris @ Raja v. Parveen Kumar and others. The said suit is stated to be pending for disposal at that time before the court of Ms. Poonam Chaudhary, the then Civil Judge, Delhi
11. It is further claimed that defendant no.1 in the said suit filed against Sh. Parveen Kumar has falsely alleged that he is the owner of the suit property having purchased the same from Smt. Sayeeda Khatoon vide agreement to sell dated 09/04/1986 for a total consideration of Rs.10,000/. It is claimed that defendant no. 1 has falsely alleged that Smt. Sayeeda Khatoon had purchased the suit property from Sh. Habib Ahmed who in turn purchased the same from Sh. Shyam Lal. It is claimed that Sh. Shyam Lal was not owner of the suit property and hence he had no right to transfer the property in dispute as person having no title can transfer no title better than he himself has. Plaintiffs state that in the above suit defendant no.1 has admitted that Sh. Parveen Kumar was the owner of the suit property. It is further submitted that the defendants have forged and fabricated the documents. Plaintiffs further averred that defendants are in wrongful occupation of the suit property having no right to retain the same and their possession is that of tresspasser. Accordingly the plaintiffs have made avarments claiming that defendants are liable to pay damages/mesne profits @ Rs. 1000/ per month.
Suits NO. 512/06 and 511/06 7/60
12. Plaintiffs further claimed that on 20/12/1994 they came to know through property dealers that defendants are intending to sell, alienate and or hand over the possession of the suit property in which background of facts, the present suit is filed.
13. Defendants filed their Written Statement jointly and took preliminary objections that the suit of the plaintiff is barred by limitation. It was alleged that as Sh. Parveen Kumar himself was dispossessed from the suit property on 25/04/1982 and since then neither he nor the plaintiff have taken any steps to claim the possession from Sh. Habib,the predecessor in interest of defendant no. 1 and as such on this ground itself the suit is barred.
14. It was averred by the defendants that the possession of Sh. Habib Ahmed was hostile, continuous, undisturbed and peaceful qua Parveen Kumar from whom the plaintiff has claimed interest in the suit property. Defendants alleged that the suit of the plaintiff is even otherwise bad for non joinder of necessary parties as Sh. Anoop Singh, Sh. Sham Lal, Sh.Sohal Lal, Sh. Parveen Kumar, Sh. Habib Ahmed, Sh. Ramzan, Smt.Shakila and Smt. Sayeeda Khatoon towards whom it was claimed that they are the transferers of the suit property one after other and on the said ground also the defendants claimed that the suit of the plaintiff is liable to Suits NO. 512/06 and 511/06 8/60 be rejected.
15. Defendants further alleged that the suit of the plaintiffs is bad for misjoinder of defendant no.2 who is wife of defendant no. 1 and it was stated that she has no independent right, title or interest in the suit property and is in occupation of the same being wife of defendant no.1 and as such it was averred that she is neither necessary nor formal party to the suit and her name was claimed to be liable to struck off from the array of the parties.
16. Defendants averred further that the plaintiffs have approached the court with unclean hands and are guilty of suppression of material facts. It was claimed that the plaintiff has given the address of the defendants as F215 to 218, Old Seema Puri, Delhi whereas defendants have been served with the summons only at the address F6,Chand Bagh, Wazirabad Road, Delhi94.
17. It was further claimed that the suit of the plaintiff is liable to be stayed u/s 10 CPC as defendant no. 1 has already filed a suit for injunction stating the correct facts. It was claimed that as suit filed by the defendants involves the same parties and subject matter and has been filed earlier to the suit of present plaintiff, the suit filed by Sh. Babu Ram is liable to be stayed.
Suits NO. 512/06 and 511/06 9/60
18. It was claimed that Sh. Anoop Singh was having the plot no. 8 measuring 500 sq yards in his name in Khasra no. 24/2 situated within the revenue estate of Village Ziauddinpur, Shahdara Delhi which plot was purchased by Sh. Shyam Lal and Sh. Sohan Lal, father of Sh. Parveen Kumar on 07/03/1974. Sh. Sohan Lal purchased the plot in the name of his son Sh. Parveen Kumar who was minor at the relevant time and as such it was argued that the said agreement is void, illegal and unenforceable. Defendants averred that after dividing the plot in two portions, each measuring 250 sq yards, one plot was numbered as plot no. 8 and other as plot no. 8A. One plot was in the name of Sh.Shyam Lal through the documents such as agreement to sell, affidavit etc dated 07/03/1974 and the possession of the plot was also delivered to Sh. Shyam Lal. Sh. Shyam Lal sold the plot no. 8A through agreement to sell and GPA dated 19/03/1982 to Sh. Habib Ahmed and possession in part performance thereof was also delivered to Sh. Habib Ahmed. It is stated that on 30/04/1982 Sh. Parveen Kumar S/o Sh. Sohan Lal with malafide intentions filed petition u/s 145 Cr. PC against Sh. Habib Ahmed alleging that Sh.Habib Ahmed has wrongfully and forcibly dispossessed him from plot no. 8A measuring 250 sq yards (disputed property).
19. However, Sh. Habib Ahmed sold the suit plot to Smt. Sayeeda Suits NO. 512/06 and 511/06 10/60 Khatoon and executed GPA in her favour. The possession of the plot was also handed over to her, whereafter Smt. Sayeeda Khatoon constructed one room with boundary wall over the plot and since then she was in possession thereof till the time the plot is sold to defendant no. 1 whereafter he made further developments thereupon.
20. It is averred further that Sh. Habib Ahmed by contesting the proceedings u/s 145 Cr. PC disclosed that he had sold the property to Smt.Sayeeda Khatoon. Smt. Sayeeda Khatoon also filed her WS stating that she is in possession of the suit property. The proceedings u/s 145 Cr.PC initiated by Sh. Parveen Kumar were dismissed in default on 20/03/1986 and the possession of the plot remained with Smt. Sayeeda Khatoon. On 19/04/1986 defendant no. 1 purchased the property by way of agreement to sell, GPA of same date executed by Smt. Sayeeda Khatoon whereafter defendant no.2 is in uninterrupted possession of the property in question. It is claimed that predecessor in interest of defendant no.1 Sh.Shyam Lal,Habib Ahmed and Smt. Sayeeda Khatoon had transferrable right, title and interest which has been parted to defendant alongwith possession over the suit property.
21. Defendant no.1 averred that after purchasing the plot in question he raised further construction and is in legal possession of the property in Suits NO. 512/06 and 511/06 11/60 question. It was argued that the present suit is barred by the principle of estoppel of acquiescence as father of Sh. Parveen Kumar from whom the plaintiff are claiming title has already sold the plot of Sh. Parveen Kumar on 26/10/1982 and he consented to it. Sh. Parveen Kumar never raised any objection within three years of his majority.
22. Defendants alleged that suit of the plaintiffs discloses no cause of action and plaint was claimed to be barred by Order 7 Rule 11 CPC. Defendant no.1 stated that he has became the owner of the suit property even otherwise by way of adverse possession as father of Sh. Parveen Kumar sold the plot and further allowed this plot to be sold by Sh. Shyam Lal to Sh. Habib Ahmed and the sale agreement coupled with the possession and payment of consideration has never been questioned within the period of limitation by Sh. Parveen Kumar of which act the title of defendant no .1 have been confirmed.
23. While replying on merits, the contents of the plaint were denied. It was denied that plaintiffs are the owners of the plot bearing no. 8A, bearing Municipal NO. F6 in Khasra no. 24/2, Chand Bagh, Delhi measuring 250 sq yards as shown red in the suit plan annexed. It was denied that the property is bounded as described in the plaint.
24. Defendants admitted that Sh. Anoop Singh was the original Suits NO. 512/06 and 511/06 12/60 Bhumidar of the plot measuring 500 sq yards, Chand Bagh, Delhi in Khasra no. 24/2 of Village Ziauddinpur, Shahdara, Delhi and he divided the plot in two parts of 250 sq yards each and renumbered them as plot no.8 and plot no. 8A respectively. It was further admitted that Sh. Anoop Singh agreed to sell one plot of 250 sq yards to Sh. Shyam Lal by virtue of sale agreement dated 07/03/1974. The boundaries shown in the para of the plaint were denied by the defendant, however defendants did not dispute that Sh. Anoop Singh had delivered peaceful vacant possession of original plot no. 8, measuring 250 sq yards to Sh. Shyam Lal and he executed registered GPA in favour of Sh. Shyam Lal. Defendants further admitted that Sh. Anoop Singh agreed to sell remaining portion of the plot no. 8 measuring 250 sq yards to Sh. Parveen Kumar S/o Sh. Sohan Lal through Sh. Sohan Lal vide agreement to sell dated 07/03/1974. However, it is argued by the defendants that the above agreement was not a valid agreement as the status of Sh. Parveen Kumar at the relevant time was that of minor. The boundaries mentioned in respect of the plot sold to Sh.Parveen Kumar have been denied. It is alleged that agreement executed in favour of Sh. Parveen Kumar is void abinito as being minor Sh. Parveen Kumar was not competent to enter into agreement of purchase of the property.
Suits NO. 512/06 and 511/06 13/60
25. Defendants denied that Sh. Anoop Singh received the entire consideration qua agreement dated 07/03/1974 in favour of Sh. Parveen Kumar in respect of plot no. 8A and accordingly handed over the peaceful vacant possession of the plot no. 8A to Sh. Parveen Kumar after executing the agreement to sell. Defendants further denied that Sh. Parveen Kumar raised constructions of two shops, one room and boundary wall over this plot (disputed plot). It is alleged that Sh. Parveen Kumar has never been in possession of the plot in dispute and has never installed any hand pump in the disputed plot. The allegations that Sh. Parveen Kumar visited the suit plot on 25/04/1982 and found Sh. Habib Ahmed and Ramjan in occupation of the plot as unauthorised occupants have been denied. It is admitted that Sh. Habib Ahmed was in physical and peaceful possession of the plot as same was handed over to him by virtue of agreement dated 19/03/1982 by Sh. Shyam Lal. It was denied that Sh. Parveen Kumar requested Sh. Habib Ahmed to deliver back the possession. However, it is admitted that Sh.Parveen Kumar initiated the proceedings u/s145 Cr. PC against Sh.Habib Ahmed and Sh. Ramjan.
26. Defendants denied that any settlement or compromise was ever reached between Sh. Parveen Kumar and Habib Ahmed whereafter proceedings were allowed to be dismissed as is claimed by the plaintiff. It Suits NO. 512/06 and 511/06 14/60 is claimed that Sh. Shyam Lal and Sh. Sohan Lal, father of Sh. Parveen Kumar, were related to each and Sh. Sohan Lal sold half of the plot no.8 owned by Sh. Parveen Kumar to one Sh. Kanhiya Lal through one Sikandar on 26/10/1981 and handed over the possession to him whereas Sh. Shyam Lal sold remaining half plot of the original plot no. 8 to Sh.Habib Ahmed on 19/03/1982 and hence there was no occasion for any compromise during the proceeding u/s145 Cr. PC as is mentioned by the plaintiff. It was further denied that vacant peaceful possession of the plot has been handed over to Sh Parveen Kumar by Sh. Habib Ahmed whereafter he withdrew from the proceedings u/s 145 Cr. PC. Defendants claimed that the date on which the proceedings were initiated against Sh.Habib Ahmed, he was not in possession of the suit plot as same was occupied by Smt. Sayeeda Khatoon and hence no occasion as such existed with Sh.Habib Ahmed to hand over the vacant peaceful possession of the suit plot to Sh. Parveen Kumar.
27. Defendants has denied that the plot in question had been sold by Sh.Parveen Kumar to the present plaintiff for an amount of Rs.1,35,000/. It is denied that Sh. Parveen Kumar delivered the possession of the plot alongwith its super structure. It is further denied that sale in favour of the plaintiff is a valid sale by virtue of GPA dated 16/05/1989 and/or by virtue Suits NO. 512/06 and 511/06 15/60 of execution of documents, the plaintiff has become lawful owner of the suit plot alongwith super structure raised thereon. Defendants asserted right, title and interest in the suit plot and denied all remaining contents of the plaint claiming it to be a concocted and false story. In the backdrop of above, it was prayed that the suit of the plaintiff be dismissed.
28. Replication had been filed wherein contents of the plaint have been reafirmed and those of WS have been denied. It is denied that the suit of the plaintiff is barred by limitation. Plaintiffs alleged that defendants have concocted a false story in respect of the possession. It is stated that possession of Sh. Habib Ahmed was neither hostile nor undisturbed or peaceful qua Parveen Kumar. It is denied that suit of the plaintiff is bad for non joinder of necessary parties and for misjoinder of wife of defendant no.1. Plaintiffs claimed that defendants are rank trespassers and have no right,title or interest to occupy the suit plot. Rest of the allegations made by the defendants have been denied vehemently.
29. After completion of pleadings issues were framed on 03/01/1996 as follows:
1. Whether the plaintiff is entitled to a decree of possession of the suit property?OPP
2. Whether the plaintiff is entitled to a decree of declaration in Suits NO. 512/06 and 511/06 16/60 terms of prayer B?OPP
3.Whether the plaintiff is entitled to a decree of Rs. 2700/? OPP
4.Whether the plaintiff is entitled to future mesne profits from 01/12/1994 and if so, at what rate and interest if any?OPP
5. Whether the suit of the plaintiff is barred by time in view of the preliminary objection no.1 of the written statement of the defendants ?OPD
6.Whether the suit of the plaintiff is bad for misjoinder/non joinder of the necessary parties?OPD
7.Whether the suit of the plaintiff is liable to be stayed in view of the earlier suit filed by the defendant for injunction?OPD
8.Relief.
30. During the proceedings, vide order dated 26/09/2000 the present suit and other suit filed by present defendants titled as Mohd. Idris v. Parveen Kumar bearing no. 51/2000 were consolidated. It was ordered that the present suit filed for the relief of possession shall be treated as main case and evidence shall be recorded in the present suit which shall be read in both cases.
31. Prior to the above consolidation being made, misc applications Suits NO. 512/06 and 511/06 17/60 filed u/o 22 for impleading LR of plaintiff no.2 who had died on 14/07/1998 was disposed off. Two applications u/o 6 Rule 17 CPC were moved by the plaintiffs which was allowed vide order dated 01/03/2001. After disposal of the misc applications parties were called to lead their respective evidence. Plaintiff appeared himself as PW1. He produced Sh.Anoop Singh S/o Sh. Lajja Ram as PW2. Sh. Parveen Kumar Garg was produced by plaintiff as PW3. Sh. Raghubar Dayal S/o Sh. Horam Singh appeared as PW4. Smt. Prem Lata, Head Clerk, Sub Registrar Office, Seelampur, Delhi appeared as PW5. Whereafter PE was closed on recording statement of plaintiff' s counsel on 26/05/04. However, plaintiff moved application u/o 16 Rule 3 CPC which had been treated by my Ld. Predecessor one as filed u/o 18 Rule 3 CPC. The said application was dismissed vide separate order by imposing cost of Rs.2000/ on the plaintiff. However, plaintiff was allowed to lead further evidence in re examination after, closer of defendant's evidence. On 15/11/07 Sh.P.K. Narula, Assistant Electoral Registration Officer, D.C. Office was called as PW6. Sh. Nain Singh, UDC, House Tax Department, Shahdara North, MCD was called as PW7. Sh.Krishan Pal Section Supervisor, MTNL, Commercial Section was summoned as PW8. One Sh. Munesh Kumar, Record Clerk, Office of Sub Registrar IV, was called as PW8A. Sh.Naveen Suits NO. 512/06 and 511/06 18/60 Dutt Sharma, UDC, office of CEO, Kashmere Gate was summoned as PW9. Defendant filed his affidavit as DW1. He did not produce any other witness. Opportunity was given to the counsel to make their final arguments by way of oral submissions. Ld. counsel for the plaintiff availed sufficient number of opportunities for making his submission whereafter written arguments has also been filed. Ld. counsel for the defendant has also filed written submission on record. I have perused the same and have gone through the record.
32. Now I propose to deal with the issues and record my findings in the following manner: ISSUE NO. 7
33. The onus to prove the issue was upon the defendant as it was claimed that the present suit is liable to be stayed, in view of another suit filed by the defendant herein for relief of injunction between the same parties on same subject matter. It be observed that vide order dated 26/09/2000, Ld. ADJ received the other file bearing no. 51/2000 titled as Mohd. Idris v. Praveen Kumar which was being tried in the court of Sh.Inderjeet Singh, the then CJ. In the order of the application of Ld. counsel for the plaintiff both the suits were ordered to be tried by the court of Ld. ADJ who was pleased to consolidate both the suits by way of above Suits NO. 512/06 and 511/06 19/60 mentioned order holding as under: " An application is moved by Mr. Sharma for consolidation of the suits. In view of request made by him and considering the facts that both the cases relates to same property and are between the same parties, both the suits bearing no. 264/98 and 51/2000 are hereby consolidated and suit for possession shall be treated as the main case i.e. suit no.264/98 and evidence shall be recorded in suit no.264/98 which shall be read in both cases."
Suits have been consolidated during the course of evidence on the application of defendant himself. While deciding and determining the present issue order dated 30/11/99 of Ld. Sh. Inderjeet Singh, the then Civil Judge is also required to be read. This order had been made on the application of the present defendant, who was plaintiff in the said suit, filed u/s151 CPC on 11/08/99 for adjourning the above mentioned suit sine die till the final outcome is made in the present suit bearing no.264/99. Ld CJ while disposing off the said application observed as under: " ...... Parties to both the suit are not similar. To say, except the suit property neither the parties are same nor the cause of the suit is same as the present suit was filed for injunction but the other suit is for declaration/ possession/mesne profits/injunction. ..... as apparent, section 10 of CPC does not apply to the present circumstances nor section 151 CPC applies."
34. Ld. Civil Judge also went on to hold that it cannot be observed from the statement of parties and perusal of record that either of the Suits NO. 512/06 and 511/06 20/60 parties is abusing process of the court and apparently the provision of section10 CPC does not apply to the circumstances of the present case. It was also observed that even the provisions of u/s 151 CPC do not aid the case of the plaintiff and after recording above observation, the application was disposed off.
35. Thus it is apparent that the contentions in respect of application of section 10 CPC have already been recorded and findings in this regard has been made. Defendant herein who has challenged the maintainability of the present suit, seeking stay of the same, has not challenged the decision on the application u/s151 CPC wherein observation on the applicability of section 10 CPC have also been recorded. Rather it is the defendant himself who has sought consolidation of both suits and on his application Ld. District Judge has been pleased to consolidate the suits which are to be disposed of by single judgment. The fact that the defendant has continued of proceedings of the suit filed by him and even after getting his examination orally in his suit, has tendered fresh affidavit for recording of his evidence in this suit and has been cross examined, indicates to the circumstances that the defendant is not serious to challenge and/or seeking stay of this suit on the objection taken u/s 10, in view of the Suits NO. 512/06 and 511/06 21/60 above it is to be observed that issue invoked has become redundant. ISSUE NO.1 & 2
36. The onus to prove these issues was upon the plaintiff as it was for the plaintiff to show that plaintiff is entitled to the relief of possession as well as that of declaration prayed for in the present suit. It was argued that onus to prove the plaintiff' s entitlement has not been duly discharged by the plaintiff as plaintiff has failed to produce any reliable and admissible evidence in his favour. It was averred that suit filed by the plaintiff claiming title in the suit property is based on plaintiff' s proving his subsisting valid title. It was argued that in AIR 1959 SC 31, Hon' ble Supreme Court has detailed clearly that it is the strength of the plaintiff' s title and not the absence of title in the defendant that matters in a suit for possession.
37. Ld. counsel sought to demolish the claim of plaintiff in his written submissions filed on record, alleging that plaintiffs who claim themselves as purchaser of the suit property are required to prove that their vendor had the necessary title as is held in AIR 1991 MP 15 and thus the plaintiff has to prove clearly and specifically that their predecessor had the title and had been in possession of the suit property within 12 years before the suit for possession is filed by them and/or Suits NO. 512/06 and 511/06 22/60 otherwise the provision of article 65 of Limitation Act comes into force and time began to run when the possession of defendant or anybody through whom the defendant is claiming become adverse to the plaintiff. Ld. Sh. Chander Mal, Advocate for the defendant during arguments disputed that Sh. Praveen Kumar, predecessor in interest of the plaintiff herein had the necessary title over the suit property when it was sold to the plaintiff and/or the factum of Praveen Kumar' s possession on the suit property before the same being delivered to the plaintiff. It was argued that Sh. Praveen Kumar claimed to have acquired the right in the suit property only by virtue of GPA and no sale deed has been executed in his favour. It is averred that as per admission of Sh. Anoop Kumar, the Bhumidar who sold the property to Sh. Praveen Kumar, no documents such as Will, agreement to sell or receipt has been executed in favour of Sh. Praveen Kumar. No possession letter has also been given to Sh.Praveen Kumar. Further at the time of execution of GPA, Praveen Kumar was minor, aged about 89 years old as per the version of Sh.Praveen Kumar himself that he was aged 13 years when the GPA was executed. It is claimed that due to the fact of Sh. Praveen Kumar's minority he was not competent to enter into any contract of sale and purchase and could not have even received any property by virtue of Suits NO. 512/06 and 511/06 23/60 such agreement. It is argued that in such circumstances Sh. Praveen Kumar acquired no right, title or interest in the suit property which he could have further transferred to the plaintiff herein.
38. Ld. counsel for the defendant has proceeded to point out defects in document Ex. DW1/1, GPA in favour of Sh. Praveen Kumar and has averred that GPA does not disclose about the status of plot no. 8A qua which the same is executed and it does not show that whether there was any construction on the plot and/or the same was lying vacant and the GPA is not disclosing about the exchange of money as it does not show that from whom the executant received Rs.500/ and to whom it is sold, the GPA lacks the element of transaction of sale and in view of judgment of AIR 1999 SC 1441 that in order to constitute a sale, there must be a transfer of ownership from one person to another. The GPA is not a competent document to be relied upon for praying necessary title in favour of plaintiff. Thus transaction of Sh. Anoop Singh and Sh.Praveen Kumar cannot be categorized to be a valid sale, capable of transfer of any right, title or interest any further, least, in favour of plaintiff. It is further averred that as Sh. Praveen Kumar being minor was not capable of having animus possidendi and was incompetent to exercise any legal rights of ownership as is held in AIR 1941 Nagpur Suits NO. 512/06 and 511/06 24/60
357. Sh. Chander Mal, Ld. Advocate for the defendant in furtherance of the above circumstances has argued that Sh. Praveen Kumar within three years of his attaining majority could have either challenged the transaction which has not been done or in alternate accepted the attorney executed in his favour and as he has not challenged the power of attorney, he has merely becomes the attorney of Sh. Anoop Singh and competent to act as per powers given in Ex. DW1/1, as GPA is not the title deed as is held in 32 (1987) DLT 241. Reliance is also made in AIR 2003 Delhi 120.
39. It is argued that contents of GPA are contrary to the pleadings and testimonies of plaintiff and in such circumstances evidence of plaintiff cannot be held to be reliable to prove the ownership.
40. It was averred that the plaintiff' s own case reflects that Sh.Praveen Kumar never gained possession of the suit property as at the time of alleged transaction he was minor and transaction was made on his behalf by his father Sh. Sohan Lal and in that event also the suit of the plaintiff is bad as Sh. Praveen Kumar was never in possession of the suit property.
41. Defendant further argued that in the cross examination, Sh.Praveen Kumar admitted that his father sold the adjoining plot to one Suits NO. 512/06 and 511/06 25/60 Sh. Sikandar. It is claimed that adjoining plot had been sold on the basis of power of attorney of the original owner. Though Sh. Praveen Kumar sought time to produce the power of attorney executed by Sh.Shyam Lal, allegedly on letter head, he did not produce the same claiming it to have been lost or misplaced after the demise of his father. It is thrusted that the above piece of testimony of Sh. Praveen Kumar proved that adjoining plot had been sold by Sh. Sohan Lal which in fact was owned by Sh. Shyam Lal to Sh. Sikandar and not to Sh. Attar Singh as alleged to be proved by calling the record fro m the office of Sub Registrar for whom the witness PW8A has been sought to be produced. It is argued that as Sh. Praveen Kumar withheld the attorney of Sh. Shyam Lal, adverse inference is required to be drawn against the plaintiff in view of AIR 1968 SC 1413. Ld. counsel for the defendant argued further that Sh.Praveen Kumar was confronted with site plan filed by him in proceedings u/s 145 Cr. PC wherein the suit plot was shown as vacant. It is claimed that statement of Sh. Praveen Kumar is not creditable as he was not forthcoming qua the fact of construction of one room which, the defendant claims to have been constructed by Sh.Habib Ahmed and/or his friend. It is argued that this shows that at the time of initiating proceedings u/s 145 Cr. PC suit plot was lying vacant. Suits NO. 512/06 and 511/06 26/60
42. It is averred that as per judgment reported in AIR 1946 Privy Council 59 plaintiff can succeed in suit for ejectment only strength of his title. It is the obligation of the defendant to plead possible defects in the plaintiff's title which may manifest themselves when the title is disclosed. It is claimed that it is sufficient that in the written statement defendant denies the plaintiff' s title under this plea he can avail himself of any defect which such title discloses. It is averred that in view of the proceedings u/s 145 Cr. PC where Sh. Habib Ahmed disclosed that he was not in possession of property in question and Smt. Sayeeda Khatoon was in possession of the same and that she had raised the construction over the suit plot and that in view of the above Sh. Praveen Kumar moved an application for impleadment of Smt. Sayeeda Khatoon on 06/11/1982 and that the documents filed by Sh. Habib Ahmed in the proceedings u/s 145 Cr.PC informing the SDM that he has sold the suit property and as Smt. Sayeeda Khatoon has sold the property to defendant no.1 on 19/04/86 after enjoying the possession of the property with her family since 1982 and as the present suit has been filed on 31/01/1995, the limitation period for eviction against the defendants have expired on which ground also it is argued that plaintiff is not entitled to any relief. It was further contended that plaintiff even in the Suits NO. 512/06 and 511/06 27/60 present suit has not made any pleadings for challenging the documents filed by the defendant.
43. Sh. Chander Mal, Ld. Advocate for the defendant in the written submissions also averred that there had been no compromise between the parties before SDM for exchange of possession of the suit property in favour of Sh. Praveen Kumar. It is argued that had possession of disputed land being restored to Sh. Praveen Kumar the same must have resulted in a compromise statement being recorded and not dismissal of the proceedings in default, which fact shows that there was no compromise between the parties as alleged by the plaintiff. It is argued further that in view of law laid down in 85(2002) DLT 558, AIR 1961 Cal 359 and 1998 (46) DRJ 7, the circumstances not put to opponent witness in cross examination, are presumed to be admitted. It is averred that for want of any appropriate cross examination of defendant on the aspect of possession by Sh. Habib Ahmed and Smt. Sayeeda Khatoon the above facts are deemed proved. It is further argued that as plaintiffs have acted fraudulently in filing the present suit, the plaintiffs are not entitled to the equitable relief of declaration as is detailed in 1941 Nagpur 357. It is further argued that in view of 1998(46) DRJ 7 and 85 (2000) DLT 558 the defendant' s defense claiming that he purchased the Suits NO. 512/06 and 511/06 28/60 suit property from Smt. Sayeeda Khatoon who purchased the same from Sh. Habib Ahmed, who purchased the same from Sh. Shyam Lal, being not disputed the above facts, are proved. It is further claimed that defendant in his statement has claimed that possession of Sh. Habib Ahmed who was predecessor in interest of defendants was hostile, continuous, undisturbed and peaceful qua Sh. Praveen Kumar who was the predecessor in interest of the plaintiffs. It is claimed that he further testified that even otherwise defendant and his wife have became owner of the suit property by adverse possession and it was in the knowledge of Sh. Praveen Kumar that Sh. Shyam Lal had sold the suit property to Sh. Habib Ahmed and Sh. Habib Ahmed was in exclusive possession of the suit property. It is averred that Sh. Praveen Kumar was also having knowledge of fact that Sh. Habib Ahmed has sold the suit property to Smt. Sayeeda Khatoon which is in her exclusive and peaceful possession and was further transferred in favour of defendant. It is claimed that since the defendant and his predecessors in interest were in continuous, uninterrupted, peaceful and hostile possession to the possession of plaintiff and his predecessor in interest for more than 12 years, the plaintiff' s suit is barred by limitation. It is claimed that there is no cross examination on this aspect which is testified by the defendant as DW1 in Suits NO. 512/06 and 511/06 29/60 his affidavit in para no. 22 which is tendered on record.
44. It is stated that as starting point of limitation commenced from the date of possession of the defendants and their predecessor which becomes adverse and commenced w.e.f. 19/3/1982 when the GPA, agreement to sell were executed by Sh. Shyam Lal in favour of Sh. Habib Ahmed and possession of suit property was delivered to Sh.Habib Ahmed shows that Sh. Praveen Kumar, predecessor in interest of plaintiff was in the knowledge of fact of purchasing of property and possession of Sh. Habib Ahmed and Smt. Sayeeda Khatoon through the proceedings u/s 145 Cr.PC and hence the pleadings of the plaintiff cannot be believed. It is averred that Sh. Praveen Kumar never obtained the possession of the suit land and the document Ex.PW1/2 to Ex.PW1/6 purportedly showing his receiving the possession from Sh. Habib Ahmed are forged documents and are mere paper transactions. It is claimed that evidence is created with intention to evict the defendant from the suit property.
45. It is claimed that suit of the plaintiff is based on false evidence as Sh. Praveen Kumar has made contradictory statements qua construction of the suit property. In order to stress the factum of defendant' s possession over the suit property, it is claimed that plaintiff's Suits NO. 512/06 and 511/06 30/60 witness from House tax Department shows that defendant was in possession of the property w.e.f. 01/04/1983 as from 01/04/83 uptil 31/3/90 the property was assessed in the name of Jamaluddin, father of the defendant and thereafter in the name of defendant himself. It is claimed that similarly PW6 Sh. P.K.Narula from Election Office brought the record of year 2007 which shows that Smt. Sayeeda Khatoon left the property in 1986 and handed over the possession to the defendant. Similar statement have been made in respect of other witness who have been summoned by the plaintiffs. It is averred that even the report of Ld. Local Commissioner favours the defendant and in view of the documents Ex. DW1/48 dated 25/12/86, Ex. DW1/43, electrol card of the defendant from the period 198687, Ex. DW1/44, it is shown that defendant' s possession in the suit property has not been challenged and in view of the above the plaintiff' s suit holds no ground and is to be dismissed.
46. Ld. counsel for the plaintiff has also filed written submission and has rebutted the challenge to his case thread bare. I have heard the submissions as observed above.
47. It be observed that the defendant has challenged the suit of eviction prayed by the plaintiff mainly on the ground of defect in title of Suits NO. 512/06 and 511/06 31/60 Sh. Praveen Kumar claiming that mere execution of GPA in favour of Sh. Praveen Kumar is not a document sufficient to transfer any right, title or interest in his favour and for want of which he was incapable to transfer any such right further to the plaintiff. The capability of Sh.Praveen Kumar to transfer the property to present plaintiff has been challenged on the ground of his minority as well as it is averred that being minor he was not competent to receive the property by way of agreement and such an agreement was null and void. Besides raising other instances on merits of the case wherein it is claimed that defendant has acquired his independent right, title or interest from Smt. Sayeeda Khatoon who purchased the property from Sh. Habib Ahmed who in turn was given the right in the suit property by Sh. Shyam Lal by virtue of documents executed in his favour by original Bhumidar Sh. Anoop Singh. In contrast it is also pleaded that defendant has acquired right, title or interest by continuous and uninterrupted possession which is hostile to interest of the plaintiff and his predecessors which fact he claims to have not been sought to be challenged and thus confer conclusive title of the defendant. It is also averred that plea taken by the plaintiff in respect of acquiring possession from Sh. Habib Ahmed as a consequence of compromise allegedly reached during the proceedings Suits NO. 512/06 and 511/06 32/60 u/s 145 Cr. PC is a forged plea and the documents purported to be executed reflecting the above fact have been forged and are incapable of providing conclusive proof to the fact of possession being restored to the predecessor in interest of the plaintiff. It is argued vehemently that for want of plaintiff's capacity to prove his own title in the suit property he is incapable to seek ejectment of defendant as before demolishing the defendant's defense, the onus to prove the title of plaintiff has not been discharged through reliable and admissible evidence.
48. It be observed that pleas taken by the defendant shows that defendant is trying to sail through two boats at the same time. At one place defendant has claimed to have acquired his ownership which fact is being reiterated through his pleadings and examination in chief of having purchased the suit property from the chain of persons i.e. Smt.Sayeeda Khatoon, Sh. Habib Ahmed, Sh. Shyam Lal and on the other hand the claim of the defendant, is that he is enjoying the possession of the property for want of plaintiff's a vailing any appropriate proceedings against him and or is predecessors imparting him the rights of prescription as per section 65 of Limitation Act.
49. It is settled law that defendant cannot take two conflicting Suits NO. 512/06 and 511/06 33/60 pleas. Defendant could either establish his right to enjoy the property by virtue of his being owner of the suit property and/ or by claiming adverse possession. For the inherent conflict in the nature of the pleas taken by defendant both the pleas cannot be entertained and applied at the same time. Defendant cannot be allowed to seek adverse possession against his own ownership if he pleas the same. For claiming adverse possession, the defendant has to admit the ownership of the plaintiff in absence of which it cannot be presumed that he made any open declaration of his being enjoying the possession hostile to the right, title or interest of the plaintiff. By making both averments simultaneously defendant has created conflict for himself and has made contradictory submissions. Defendant thus has not been able to plead even conclusively either of the fact. In the judgment of R. Chandevarappa and ors v. State of Karnataka and ors. Reported as (1995) 6SCC 309 wherein Hon'b le Supreme Court has held as under: " The question then is whether the appellant has perfected his title by adverse possession. It is seen that a contention was raised before the Assistant Commissioner that the appellant having remained in possession from 1968, he perfected his title by adverse possession. But the crucial facts to constitute adverse possession have not been pleaded. Admittedly the appellant came into possession by a derivative title from the original grantee. It is seen that the original grantee has no right to alienate the land. Therefore, having come into possession under colour of title from original grantee, if the appellant intends to Suits NO. 512/06 and 511/06 34/60 plead adverse possession as against the State, he must disclaim his title and plead his hostile claim to the knowledge of the State and that the State had not taken any action thereon within the prescribed period. Thereby, the appellant's possession would become adverse. No such stand was taken nor evidence has been adduced in this behalf. The counsel in fairness, despite his research, is unable to bring to our notice any such plea having been taken by the appellant." In judgment of Hon' ble Supreme Court in T. Anjanappa and ors. v.
Somalingappa and another reported as (2006) 7SCC 570, law in respect of adverse possession is discussed as follows: " 11. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of any person to whom the land rightfully belongs and tends to extinguish that person's title, which provides that no person shall make an entry or distress, or bring an action to recover any land or rent, but within twelve years next after the time when the right first accrued, and does away with the doctrine of adverse possession, except in the cases provided for by Section 15. Possession is not held to be adverse if it can be referred to a lawful title. According to Pollock, " In common speech a man is said to be in possession of anything of which he has the apparent control or from the use of which he has the apparent powers of excluding others" . It is the basic principle of law of adverse possession that (a) it is the temporary and abnormal separation of the property from the title of it when a man holds property innocently against all the world but wrongfully against the true owner; (b) it is possession inconsistent with the title of the true owner."
Suits NO. 512/06 and 511/06 35/60
It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action."
" The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise."
ble Supreme Court in Hemaji
50. In recent judgment of Hon' Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and ors reported as AIR 2009 SC 103, The Hon' ble Supreme Court has detailed that a Suits NO. 512/06 and 511/06 36/60 person claiming adverse possession has to show: a. On what date he came into possession?
b. What was the nature of his possession?
c. Whether factum of possession was known to other party. d. How long his possession has continued?
e. His possession was open and undisturbed
51. Though defendant through his arguments claimed to have gained the possession on 19/03/82 from the date of Sh. Habib Ahmed 's acquisitioning alleged right, the defendant has not produced any document to show the possession being enjoyed by either by Sh. Habib Ahmed and/or Sayeeda Khatoon. In fact, as admitted by defendant and the witness produced by the plaintiff PW7 from House Tax Dept. House tax of the property in dispute is being assessed from the year 1983 in the name of father of the plaintiff. Had Smt. Sayeeda Khatoon enjoyed the property at any point of time after 1986 defendant must have brought something to prove the above fact. It is further unexplained by the defendant that prior to the year 1986 when admittedly he was not in possession of the suit property and in turn Smt. Sayeeda Khatoon and prior to her Sh. Habib Ahmed were enjoying the possession of the property then how the same was assessed in the name of Jamaluddin Suits NO. 512/06 and 511/06 37/60 (father of the defendant herein).
52. It be observed that in Judgment titled as Mohan Lal (deceased) through his LRs Kachru and ors. v. Mirza Abdul Gaffar and Another reported as 1996 (1) SCC 639, Hon' ble Supreme Court was again observed that: " plea of ownership alongwith alternate plea of adverse possession are inconsistent and the litigant pleading the right through the prescription must " First"d isclaim his right and thereafter plead and prove the assertions of his independent hostile adverse possession to the knowledge of transferor or his successor in title or interest and that latter had acquiesced to his illegal possession during the entire period of 12 years upto completing of period of his title by prescription."
Thus the party claiming right, title or interest in the suit property by way of adverse possession, is not only required to first leave the inconsistent plea of having acquired any independent right by way of ownership but also, to prove the assertion of acquisition of entitlement through prescription by showing an open declaration qua hostile possession, the factum of is being in possession hostile to the owner, the knowledge on the part of the owner of such party's open and hostile possession and acquiesce on part of true owner to such Suits NO. 512/06 and 511/06 38/60 possession.
53. Defendant in the present case has claimed that uptil 1986 Smt. Sayeeda Khatoon was enjoying the possession of the property. It is claimed that Smt. Sayeeda Khatoon received the property by virtue of documents executed by Sh. Habib who acquired the right through Sh.Shyam Lal. The factum of the possession being adverse to the present plaintiff and also qua his predecessor' s in interest is being claimed by the defendant, right from the time of Habib Ahmed. The defendant has nowhere specifically pleaded as on which date Sh. Habib Ahmed, the predecessor in interest of the defendant made a declaration of his enjoying the possession of the suit property hostile and being adverse to the right of Sh. Praveen Kumar, predecessor in interest of the present plaintiff. In fact the defendant has not produced any evidence on this aspect at all and through his own pleadings has admitted the fact that Sh. Praveen Kumar challenged the possession of Sh. Habib Ahmed and initiated proceedings u/s145 Cr. PC against him. The said proceedings admittedly were contested by Sh. Habib Ahmed. Further as per the admissions of defendant himself Smt. Sayeeda Khatoon, successor of Habib Ahmed also moved an application for her impleadment before Ld. SDM. The defendant during his cross Suits NO. 512/06 and 511/06 39/60 examination has disclosed that during the proceedings under section 145 Cr. PC before SDM, defendant himself accompanied Smt. Sayeeda Khatoon. All the above facts show that acquisition of possession of Habib Ahmed was challenged and this fact was in the knowledge of his successors all the time, who also attended and watched such proceedings. Thus the fact that Sh. Habib Ahmed' s possession was perfected on the ground of it is not being challenged the required years could not even remotely was proved by the defendant as it is apparent that defendant has claimed to have acquired the right in 198283 whereas the proceedings against Sh.Habib Ahmed were filed in March April 1982. For the fact that the possession of predecessor in interest of defendant were not unchallenged for a period of 12 years, it cannot be concluded that defendant has fulfilled the requisites for claiming title qua the property in dispute by virtue of section 65 of Limitation Act. Thus the defendant has not been able to establish the necessary ingredient to claim the adverse possession against the plaintiff.
54. Now coming to the plea of his claiming ownership in respect of the property in dispute. Defendant claimed that Sh. Sohan Lal, father of Sh. Praveen Kumar, the predecessor in interest of the plaintiff had sold the plot owned by Sh. Shyam Lal whereafter an understanding was Suits NO. 512/06 and 511/06 40/60 reached between Sh. Sohan Lal and Shyam Lal that Sh. Shyam Lal would acquire right upon the plot which is the suit property. The defendant in the present WS has not made any such plea specifically and rather when he is confronted with contents of the replication during the cross examination, has disputed the same by alleging that contents of the replication were not in his knowledge and his earlier counsel Mr. M.L. Sharma drafted the same and took his signatures on the last page. After making such statement on oath, the reflection of this fact is made during the cross examination of Sh. Praveen Kumar which fact is argued by Ld. counsel for the defendant. It is claimed that Sh. Praveen Kumar has admitted that his father Sh. Sohan Lal sold the property of Sh. Shyam Lal to one Sh. Sikander against the power of attorney. It is alleged that when Sh. Praveen Kumar was asked to produce the power of attorney obtained by Sh. Sohan Lal from Sh. Shyam Lal, he initially took time to produce the same, however, lateron did not bring such documents on record establishing the averments of defendant that Sh. Sohan Lal had already sold their property and suit plot belonged to Sh. Shyam Lal. The onus to prove this averment was on the defendant. Defendant had not made any effort to prove any such oral settlement reached between Sh. Sohan Lal and Sh. Shyam Lal whereby the right, title or interest of Suits NO. 512/06 and 511/06 41/60 suit plot is shown to have been exchanged. There is no material which could indicate to such circumstances as are alleged by the defendant. The defendant has not even pointed out to any date, month or year when such arrangement was agreed by Sohan Lal and Sh. Shyam Lal. It is not stated that any witness was present when such arrangement was reached. Interestingly, the defendant himself did not rely on this plea and disowned the above plea by claiming it to be imaginary and concocted by his earlier counsel, when he was confronted with the replication during his cross examination. At this state it be also observed that the relevant provisions of Transfer of Property Act read with the provisions of Registration Act, prescribes and prohibits the exchange of a right, title or interest in immovable property except through a written document. In such circumstances even if the GPA in favour of Sh.Sikandar is produced, the defendant was still under burdened to prove, the competence of Shyam Lal to have acquired the property of Sohan Lal by a valid instrument reducing any oral settlement as alleged.
55. At this stage, it is pertinent to make observation about the conduct of the defendant who himself is a qualified professional being Doctor trained in practicing medicines in Alopathy and Unani. The defendant in his cross examination has claimed to have not even read the Suits NO. 512/06 and 511/06 42/60 contents of the replication before putting his signatures thereon. The circumstances prohibiting him from reading the contents of his own replication, have not been fully detailed. The defendant has not explained as why from 1998 till 2005 he did not go through his own replication which fact does not appear probable in view of the background of defendant detailed above. The statement of defendant appeared to be retraction from his earlier deposition and shows that he is not believeworthy and reliable witness.
56. Further after having failed to prove the arrangement on the basis of which it is claimed that plot no. 8A was acquired by Sh. Shyam Lal. The defendant goes on to plead that plot no. 8A was owned by Sh.Shyam Lal, which fact is contradictory to his own pleadings of suit no.511/06, from Sh. Anoop Singh, original Bhumidar. Nowhere during the entire trial defendant has taken pains to explain the boundaries of the plot purchased by Sh. Shyam Lal from Sh. Anoop Singh. In the arguments the defendant has sought to challenge the power of attorney Ex. PW1/1 on the ground of minority of Sh. Praveen Kumar, however, the boundaries detailed in the same documents have not been put to any challenge and/or rebuttal, to which extent, thus this document is deemed proved. Ex. PW1/1 reflects clearly that the plot number of disputed Suits NO. 512/06 and 511/06 43/60 property as 8A of Khasra no. 24/2 of Village Ziauddin Pur. Para no.1 of the GPA reflects the boundaries as under: East : Plot of Sham Lal, plot no. 8 West : Plot no. 9 South : Wazirabad Road North : Gali 15 ft.
57. The defendant made no efforts from his side to prove that plot purchased by Sh. Shyam Lal from Sh. Anup Singh was this very plot which is numbered as 8A.
58. Plaintiff in order to prove that plot of Sh. Shyam Lal was numbering 8, produced Sh. Mukesh Kumar, clerk of Sub Registrar, Seelam Pur who brought the power of attorney of Sh. Anoop Singh executed on the date of 07/03/97 in favour of Sh. Shyam Lal. The boundaries explained in document Ex. PW8/1 which is the power of attorney of Sh. Shyam Lal have also not been disputed and/or challenged. The fact that in the WS of the present suit defendant is claiming Shyam Lal to be the owner of the property no. 8A, the onus was on the defendant himself to prove the same. No witness as such is produced even on this aspect. The assertion of defendant that the plaintiff could not have acquired any right, title or interest by virtue of GPA executed in favour of Sh. Praveen Kumar by Sh. Anoop Singh for Suits NO. 512/06 and 511/06 44/60 the reason that GPA itself is not a competent document to transfer any right, title or interest for want of execution of other document such as agreement to sell, receipt, affidavit of possession as part performance in terms of section 53 of Transfer of Property Act, defendant has failed himself as well, to prove his ownership which also is based on GPA above. Furthermore, defendant was required to prove the existence of right of Sh. Shyam Lal in the suit property clearly, unequivocally being an unfettered right without any incumbrance which he also failed as is discussed above.
59. The agreement to sell in favour of Sh. Habib Ahmed from Sh. Shyam Lal dated 19/03/1982 undeniably fails to reflects the material particularly of the property sought to be transferred by virtue of this document. The document Ex. PW1/10 does not show the exact number of plot and the boundaries of the plot. The agreement to sell reveals the intention of Sh. Shyam Lal to sell 250 sq yards of Khasra no. 24/2, village, Ziauddin Pur. In the power of attorney Ex. PW1/9 Sh. Shyam Lal purported to execute GPA in respect of land which was purchased by him from Sh. Anoop Singh by means of GPA registered as document no. 5214, volume 237 dated 19/3/74. GPA registered on document no. 19/03/74 which is exhibited by Sh. Mukesh Kumar, LDC from the Suits NO. 512/06 and 511/06 45/60 office of Sun Registrar shows acquisitions of right in property no. 8 of Khasra no. 24/2, Village Ziauddin pur and not of the property no. 8A. In view of the above facts, defendant failed to prove that Sh. Shyam Lal intended to sell plot no. 8A, to the predecessor in interest of the defendant. Further, doubts on the veracity and genuineness qua the agreement dated 19/03/82, through which Smt. Sayeeda Khatoon claimed to have purchased the suit property from Sh. Habib Ahmed is raised. It is averred that Smt. Sayeeda Khatoon did not sign this agreement despite the factum of her capability to sign being admitted by defendant on record, as defendant himself states to have seen Smt. Sayeeda Khatoon signing the application allegedly filed before the SDM during the proceedings u/s 145 Cr. PC. It is averred that no reason is disclosed as why Smt. Sayeeda Khatoon did not sign the agreement to sell when she was literate and capable to put her signatures. The above facts indicate towards the unreliability of the document Ex. DW1/6 placed by the defendant to prove his ownership. Interestingly it is also to be observed that no reason is explained by the defendant either through his evidence or during arguments as how Smt. Sayeeda Khatoon purchased the suit property for lessor amount on which the seller had purchased the same. From the documents filed on record it is averred by Suits NO. 512/06 and 511/06 46/60 the defendant himself that Sh. Habib Ahmed purchased the suit plot for a consideration of Rs. 15,000/ on 19/03/1982 and within three days i.e. on 22/03/1982 the same plot was sold for the lessor consideration of Rs.10,000/. This fact also raises doubt qua the genuineness of the documents executed by Sh. Habib Ahmed in favour of Smt. Sayeeda Khatoon.
60. It is pertinent to observe that documents through which defendant is claiming his ownership such as GPA dated 19/04/1986 Ex.DW1/1, agreement to sell dated 19/04/86, Ex. DW1/2 and receipt Ex.DW1/3 and affidavit Ex.DW1/4, all bear thumb mark of Smt. Sayeeda Khatoon. Defendant as observed above, has stated to have seen Smt. Sayeeda Khatoon appending her signatures on the reply filed by her before SDM in the proceedings initiated by Sh. Praveen Kumar. In such circumstances, it is for the defendant to explain as why did he not question Smt. Sayeeda Khatoon for not appending her signatures and in turn putting thumb impression as he himself accompanied Smt. Sayeeda Khatoon during the proceedings u/s 145 Cr.PC. The above circumstances also indicate towards the unreliability of the documents through which the defendant is claiming his right in the suit property. Furthermore, the defendant did not produce either Sh. Habib Ahmed or Suits NO. 512/06 and 511/06 47/60 Smt. Sayeeda Khatoon to prove the execution of documents in his favour. Defendant no.1 also did not produce the documents in favour of Sh. Shyam Lal in respect of the property no. 8A. It is also pertinent to observe that the documents through which defendant is claiming his ownership in the suit property are not registered document. It is settled law that no property having value of more than Rs.100/ can be transferred through unregistered documents.
61. The above discussion reaches to the conclusion that defendant has not perfected his title in the suit property either on account of enjoying the possession for long time as he could not prove that either his or his predecessor' s possession was adverse, hostile and remained unchallenged in the period prescribed, nor could he prove his right, title and interest on the basis of documents purporting to his ownership.
62. Ld. counsel for the defendant as discussed above, challenged the plaintiff to prove his ownership on the basis of his title, which he averred, should be free from defects and incumbrance. It was argued by defendant that Sh. Praveen Kumar who executed the property document in favour of plaintiffs was incompetent to do so. It is averred that he could not have been benefited from a sale document as he was incompetent to enter in a contract due to his minority and thus he could Suits NO. 512/06 and 511/06 48/60 not have validly executed sale in favour of plaintiff.
63. However, it is to be observed that a minor cannot be deprived to receive the property for his benefit. The above fact has been discussed and as such law is settled in judgment titled as Munni Kunwar v. Madan Gopal reported as AIR 1915 All 107. It is nowhere challenged that act of Sh. Sohan Lal in purchasing the property in favour of Sh.Praveen Kumar, his son who was minor at the relevant time was adverse or against the interest of minor. The recipient of the benefit of the suit property Sh. Praveen Kumar chose to perfecting the agreement by not challenging the same even after attaining majority as per law. In such circumstances, the factum of his incompetency to receive the property in his favour is of no consequence to the defendant. It is not denied and disputed that the documents in favour of present plaintiff have been executed by Sh. Praveen Kumar after attaining majority on which stage he was fully competent to execute the sale and thereof, transfer and alienate the property received by him.
64. It be observed that the documents Ex. PW1/1 which is sought to be challenged by the defendant on account of its being GPA is the old document executed in 1974. Interestingly the predecessors in interest of the defendant Sh. Shyam Lal has also received the similar document Suits NO. 512/06 and 511/06 49/60 through which the suit property is claimed by the defendants. Defendants have not been able to dispute the contents of GPA Ex.PW1/1 which is registered before the office of Sub Registrar. A perusal of the contents of this document shows an amalgamation of requisite ingredients such as intention of parties to execute the transfer, payment of sale consideration, realisation of the above consideration as well as transfer of possession. The judgments of Hon' ble High Court and law in this respect are also relied by the plaintiff which are reported as Asha M. Jain v. Canara Bank 94 (2001) TLT 841, Kuldeep Singh v. Surinder Singh 76 (1998) TLT 233, Vinod Kumar Sharma v. Seema Sethi ManuDE00422009 and J.C. Mehra v. Kusum Gupta 117 (2005) TLT 506.
65. In such circumstances, I am of the view that plaintiff has discharged the onus duly to prove the issue no. 1 & 2 which are decided in favour of the plaintiffs and against the defendants. ISSUE NO. 3 & 4
66. The onus to prove these issues was upon the plaintiff as the plaintiff sought the relief of mesne profits and damages @ Rs. 2700/. After recording my finding on issue no. 1 & 2, I am of the view that defendant is enjoying the possession of disputed property illegally and Suits NO. 512/06 and 511/06 50/60 unlawfully since 1989. In view of this finding the defendant is liable to pay mesne profits to the plaintiff. Plaintiff in order to prove his entitlement of mesne profits at the above rate has relied upon the statement of Sh. Raghubar Dayal, PW4, who states that suit property could have easily fetched, Rs.2500/ in the year 1995 when this suit was instituted. He further stated that in 2003 at the time when he deposed, the suit property would fetch about Rs.70008000/ per month. The defendant has put suggestion to the contrary to this witness which have been denied specifically. Defendant has not brought any witness to show that the assessment qua mesne profits made by the plaintiff, is incorrect. Defendant has not brought any material to show that circle rate at the time of filing of the suit and/or after are excessive and incorrect. In such circumstances for want of any material being placed by the defendant before me and for want of any effective cross examination of the witness, the valuation made by the plaintiff is to be accepted. Issue no.3 is decided in favour of the plaintiffs and against the defendants.
67. The onus to prove the plaintiff' s entitlement for future interest was on the plaintiffs. Needless to say that in view of finding on the issue no. 1 & 2 and in view of the fact that defendant is enjoying continuous possession of the suit property, he is liable to pay mesne Suits NO. 512/06 and 511/06 51/60 profits, pendentlite, the present proceedings to the plaintiff. After deciding the entitlement of plaintiff to receive mesne profits, the quantum of the same is to be determined. Plaintiff during his arguments while claiming the mesne profits as per his prayer, relied upon the statement made by PW4 Sh. Raghubar Dayal, who runs a milk dairy in the same locality. I have already observed qua this statement as cross examination of this witness is conducted by the defendant. The plaintiff in his suit has claimed mesne profits as Rs. 1000/ per month. It is argued by Ld. counsel for the plaintiff that court may take judicial notice of the rate of rent. However, one cannot be imparted more relief than claimed. Plaintiff himself in para no. 14 of his suit has sought relief of mesne profits @ Rs.1000/ per month. The rate of rent fixed by way of circle rate cannot be taken as conclusive proof of prevailing rate of rent. The rate of rent of a property would be determined on many circumstances such as location of the property, its construction, design and approachability and so on. All the above facts have not been specifically pleaded or deposed by the plaintiffs. In view of the above facts, plaintiff's claim qua mesne profits @ Rs.1000/ per month only is allowed. Decree qua the same be drawn on at the time when appropriate court fees is deposited by the plaintiff. Issue no. 3 & 4 are hence Suits NO. 512/06 and 511/06 52/60 decided in favour of the plaintiffs and against the defendants. ISSUE NO. 6
68. The onus to prove this issue was on the defendant as it was alleged by the defendant that suit of the plaintiff is bad for misjoinder and non joinder of necessary party. In the WS defendant had challenged the pleadings of the plaintiff claiming that suit filed by the plaintiff against him and his wife is bad for misjoinder of his wife. Defendant has not led any specific evidence on this aspect. During the arguments no averments specifically has been made. In fact during the cross examination of the defendant it is stated by the defendant himself that he alongwith his wife are in possession of the suit premises. It is not detailed that due to impleadment of his wife specifically in suit, the suit suffers infirmity on account of being bad by the provision of Order 1 CPC. It be observed that a suit can be termed ' bad' on account of misjoinder and/or non joinder of parties only when it can be concluded that due to impleading of one and/or not impleading a party, the court cannot reach upon final conclusion i.e. the suit itself cannot be fully, finally and effectively decided. Nowhere it is pointed out that by impleading the wife of defendant specifically in this suit, the suit of the plaintiff suffers from any infirmity and cannot be decided. The issue is Suits NO. 512/06 and 511/06 53/60 decided against the defendants and in favour of the plaintiffs. ISSUE NO. 5
69. The onus to prove this issue was on the defendant. Defendant averred acquisition of his right, title and interest in the suit property on account of the operation of law of prescription as detailed in section 65 of Limitation Act. The crux which have been revealed during the arguments in this respect are that the plaintiff at no stage challenged the continuous possession of the plaintiff and/or any of his predecessor in interest. The plea is at cost of repetition is being observed to be in juxta position to that of the ownership taken by the defendant.
70. Defendant has averred as is reflected from his WS that Habib Ahmed, the predecessor in interest of defendant acquired the right, title or interest in the property in question in juxta position to that of predecessors in interest of plaintiff. It is claimed that thereafter the rights were exchanged and transferred to Smt Sayeeda Khatoon whose possession at no stage has been challenged by predecessor in interest of plaintiff despite having knowledge. As discussed while dealing with the evidence led by the parties on issue no. 1 & 2, acquisition of right, title or interest of Habib Ahmed is being claimed by virtue of the documents executed in the month of March 1982. It is not denied and disputed that Suits NO. 512/06 and 511/06 54/60 Sh. Praveen Kumar filed a complaint u/s 145 Cr. PC against Sh. Habib Ahmed from whom Smt. Sayeeda Khatoon allegedly purchased suit property. It is to be observed further that as per the provisions of Transfer of property Act, once the predecessor in interest of the defendant has been sued and right, title acquired by him is disputed and challenged, the successor of such litigant would be covered by the provisions of lis pendence, which would be operational qua them as well.
71. Further it be observed that plaintiff claimed that Sh. Habib Ahmed during the pendency of complaint u/s 145 Cr. PC before the SDM compromised with Sh. Praveen Kumar and subsequently handed over the possession of the suit property to him in 1986. In order to prove the compromise, plaintiff produced Sh. Praveen Kumar as a witness who has been subjected to cross examination. Sh. Praveen Kumar during his statement categorically stated that he received the possession of the suit property in 1986 from Sh. Habib Ahmed after the settlement was reached. The fact that plaintiff received the possession of the suit property is uttered by PW4, Sh. Raghubar Dayal as well. He stated that plaintiffs were in possession of the suit property prior to 16/05/1989 and were dispossessed on 28/05/89. Defendant who claimed Suits NO. 512/06 and 511/06 55/60 to be enjoying the possession of the suit property subsequent to the sale document being allegedly executed in his favour by Smt. Sayeeda Khatoon in 1986 did not produce any independent witness to prove the factum of his possession since 1986. Defendant did not produce any documents to show the factum of his enjoyment of the continuous possession of the property prior to 1989 and subsequent to 1986. In order to show his possession in suit property defendant relied upon the House tax Record, which showed the assessment of house tax of the property no. F4, Chand Bagh, in the name of his father. During the cross examination of defendant it is reflected that the property NO. F4, Chand Bagh and F6, Chand Bagh( which is the suit property) are two properties. In order to prove these properties being different from each other, plaintiff summoned MCD record in its reexamination, and called Sh. Nain Singh, UDC, from House Tax Department. Sh Nain Singh who appeared as PW7, clarified that as per MCD record Property no. F4 and F6 were separate properties and property no. F6, Chand Bagh which is the disputed property is exempted from House tax. It was stated by this witness that property no. F4 was assessed in the name of Jamaluddin, father of defendant no. 1 and name of defendant no.1 was added qua property no. F4 on 01/04/90. Defendant subsequently by cross Suits NO. 512/06 and 511/06 56/60 examining this witness has not been able to elicit from this witness and/or by producing any other documentary evidence to show that record of MCD is not correctly maintained and property no. F4 and F6 are the one and same property. Even otherwise in such circumstances, defendant was under bounded duty to clearly reveal that as how the property was being assessed in the name of his father since 1984 as in accordance with his own version he purchased the suit property himself and not in the name of his father in the year 1986 from Smt. Sayeeda Khatoon. Defendant in this regard was also under obligation to show as to how the property was assessed in his father's name since 1984, i.e. even prior to the date of alleged purchase by him. However, defendant offered no explanation qua above discrepancies, which points to the defects in his version and qua its unreliability.
72. Apart from producing the House Tax Record the defendant relied upon the receipts of building material to prove the factum of his possession. It be observed that receipts of building material are not duly proved. Mere producing the receipts would not prove their reliability and genuineness unless receipts are duly proved by the person executing the same. Defendant did not make any attempt to summon the person, executant of these receipts. No record pertaining to the receipt such as Suits NO. 512/06 and 511/06 57/60 bill, ledger etc. has been got summoned to show that receipts placed on record are the part of same account maintained during the course of business. Further, the defendant did not dispute and/or explain that how the date of 23/03/82,24/03/82,25/03/82 and 27/03/82 are mentioned in the space/column of date on the documents Ex.DW1/11, Ex.DW1/12, Ex. DW1/13 and Ex. DW1/14 respectively as date of bill is predated to the alleged date of purchase of suit property by the defendant.
73. At the cost of repetition it be observed that while deciding issue no.1 & 2, it is held that defendant has not been able to prove that his occupation and/or that of his predecessor in interest remained unchalleged and due to this the defendant has not perfected his title in the suit property. Even otherwise mere continuous possession of defendant would not be sufficient to perfect title being adverse and hostile to that of plaintiff as has been observed above. In such circumstances, defendant has failed miserably to prove that limitation has run against the plaintiff and in his favour. In this respect reliance is made on judgment titled as Saroo Singh v. Banto reported as AIR 2005SC 4407 as well as decision in Mawasee (decesed) through LR and ors v. Jamia Milia Islamia University and ors reported as Suits NO. 512/06 and 511/06 58/60 Manu/DE/0138/2010 wherein it has been held as under: " Claim for adverse possession or title by prescription is established only when the claimant is in actual physical possession, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period of exceeding 12 years. Long and continuous possession by itself does not constitute adverse possession, if it is either permissive possession or possession without possendendi. Further lis based on title and adverse possession are mutually inconsistent and the latter does not begin to operate till the former is renounced. Unless the person in possession of the property has requisite animus to possess the property, hostile to the title of the owner, period of prescription does not commence."
74. For want of evidence being led to support the above ingredients, I am of the view that defendant has failed to discharge the onus. Issue no. 5 rest in favour of the plaintiff and against the defendant. RELIEF
75. The net result of the above discussion is that the suit of the plaintiffs is decreed for the relief of declaration and possession. The defendants shall hand over the vacant peaceful possession of the property bearing no. 8A (Municipal No. F6), under Khasra no. 24/2, Chand Bagh, Delhi measuring 250 sq yards as shown red in the site plan Ex. PW1/17. The plaintiffs are also entitled for the relief of mesne profits @ Rs. 2700/ till the date of institution of present suit and further @Rs.1000/ per month from the date of filing of the suit till the delivery of vacant possession of the property to the plaintiffs. The plaintiffs are Suits NO. 512/06 and 511/06 59/60 entitled to decree of mesne profits on making of payment of appropriate court fee before the decree sheet is drawn. The suit bearing no. 511/06 for the relief of injunction is hereby dismissed. Parties are left to bear their respective costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT NIRJA BHATIA
ON 14/07/2010 SR. CIVIL JUDGE(EAST):
KKD COURTS, DELHI
Suits NO. 512/06 and 511/06 60/60
Suit No. 512/06 and Suit no. 511/06
14/07/10
Present: None.
Vide separate judgment, the suit bearing no. 512/06 titled as Babu Ram v. Mohd. Idris is decreed and suit bearing no. 511/06 titled as Mohd. Idris v. Praveen Kumar is dismissed. Decree sheet be drawn accordingly. File be consigned to Record Room.
NIRJA BHATIA SR. CIVIL JUDGE(EAST):
KKD COURTS, DELHI Suits NO. 512/06 and 511/06 61/60 Suits NO. 512/06 and 511/06 62/60