Delhi District Court
Trilok Chand Sharama vs Smt. Suresh Devi on 13 May, 2022
IN THE COURT OF SH SCHIN JAIN, ADDL. DISTRICT
JUDGE - 02, SOUTH WEST DISTRICT, DWARKA COURTS,
NEW DELHI
CS DJ ADJ No.15757/16 (91/15)
CNR No.DLSW010011122015
IN THE MATTER OF:
1. Trilok Chand Sharama
S/o Shir Hardware La Shara,
R/o C-165, Harri Agar Clock Tower,
New Delhi-110064
... Plaintiff
Versus
1. Smt. Suresh Devi
W/o Sh. Sunder Lal
R/o Plot No. 94, Village badusarai
New Delhi
... Defendant
Date of institution of suit: 29.12.2007
Date of judgment reserved: 30.04.2022
Date of pronouncement of judgment: 13.05.2022
JUDGMENT
1. The present suit is filed by the plaintiff for the relief of possession, damages and permanent injunction against the defendant.
2. Briefly, stated it is the case of the plaintiff that he purchased 7 bighas of land bearing khasra No. 19/13/1 min.(4-03) and 19/14(3-0) situated in the revenue state of Village Badusarai, Tehsil Najafgarh, Page No. 1/50 Delhi vide registered sale deed , registered at Srl. 10381 in Addl. Book No1. Vol. No. 4725, page nos. 131 to 133 dated 02.12.1985 from Sh Ran Singh and Narain Singh and after the purchase of the said land the same was mutated in his name in the revenue records vide khatoni no. 9/17 min. Year 1987-1988.
3. It is further the case of the plaintiff that he kept on sowing the rabi and khariff crops on the suit land since its purchase either himself or through other persons and continued in actual, physical and cultivatory possession of the said land. It is further stated that with the passage of time due to financial requirement and needs the plaintiff sold a portion of the land.
4. It is further the case of the plaintiff that the property dealer started raising residential colonies in the area and therefore the portion of the land earlier sold by the plaintiff also stand converted into residential structures by the purchaser of that land. It is further the case of the plaintiff that the consolidation proceedings were started in the village Badusarai in the year 1996, however, due to litigation it was delayed and effectivey started in the year 2004, which were completed in the month of March-April 2005 and in the consolidation proceedings the land of the plaintiff was converted into plots bearing No. 88 to 99 forming part of extended lal dora abadi in the revenue estate of village Badusarai Tehsil Najafgarh, Delhi and out of the said plots the plaintiff sold the plots bearing Nos. 89,90,92,93,95 and 99 to the respective buyers who are in possession of the same by raising super structure therein and the remaining plots bearing No.s Page No. 2/50 88,91,94,96,97 and 98 are in the sole and absolute ownership of the plaintiff.
5. It is the case of the plaintiff that some villagers in order to grab the valuable properties of the plaintiff clouded with official of the revenue and got mentioned there name in the kaiyami in the year 2005 by taking benefits of absence of the plaintiff. It is further case of the plaintiff that the family members and friends of the plaintiff raised the boundary wall and constructed one room and temporary tin shed in plots No. 94 situated in the revenue state of Village Badusarai.
6. It is the case of the plaintiff that the defendant illegally and unlawful started claiming to be the owner of the plot No. 94 measuring 400 sq yds. on the basis of some forged, fabricated and manufactured documents and subsequently illegally and unlawfully trespass into suit property i.e. plot No. 94 sometime in the year 2004 .
7. The plaintiff in the August 2005 visited the suit plot, the plaintiff was shocked and surprised to know that some cows and some buffaloes are tied under the tin shed in the suit property and some clothes were spread for drying beside this some dung was lying in the corner.
8. The plaintiff further submitted that he was shocked to see that the other three plots /property have also been illegally, unlawfully trespass by some other persons and using them as place of tethering the cows and buffaloes. When he contacted the defendants and requested the defendants to remove the animals, however, the defendant in collusion with his family members and anti social Page No. 3/50 elements alongwith Sh Suresh Kumar, Sh Rajbir, Sh Kundan Lal, Phool Kumar, Mahender Singh, Sh Ishwar Singh and Raghubir Singh etc attempted to manhandle and humiliate the plaintiff and extended threats of killing the plaintiff.
9. It is further the case of plaintiff that he made complaints to the police on 13.11.2005 and therefore number of complaints in this regard were made to the police and ultimately he filed a complaint case against the defendants and others on 22.12.2006 and the same is pending adjudication in the court of Sh Sanjeev Kumar , MM, Patiala House, New Delhi which is fixed for 26.02.2008.
10. It is further the case of plaintiff that on 23.07.2006 he visited the defendant and requested him to remove his belongings and to hand over the vacant and peaceful possession of the said plot, on which the defendant requested the plaintiff to give six month period for vacating and handing over the plot to the plaintiff and the plaintiff considering the problem of the defendant agreed for the same subject to payment of Rs 2000/- per month as damages for which the defendant agreed.
11. It is further stated that on 07.01.2007 the plaintiff through respected persons of the village requested the defendant to vacate the premises, however, the defendant kept on lingering the matter. He again visited the defendant and other unauthorized occupants of other plots on 11.02.2007, 31.03.2007 and 12.05.2007 but in vain. Ultimately, the plaintiff served a legal notice upon the defendant through his advocate on 10.12.2007 sent through speed post thereby calling upon the defendant to hand over the possession of the suit plot Page No. 4/50 No. 88 and to pay damages @ Rs 2000/- per month for the last three years within a period of 7 days from the date of notice but the defendant failed to abide by the legal notice. Hence, the present suit.
12. The plaintiff prayed for the relief of possession, directing the defendant to handover the vacant possession of plot No. 88 village Badusarai specifically shown in red color in the site plan annexed with the suit and also for relief of damages @ Rs 2000/- per month for illegal use of suit property for the last three years from the date of filing of the suit with further directions to pay Rs 2000/- per months as mesne profits during the pendency of the suit until the satisfaction of the decree with further relief of permanent injunction.
13. Summons for settlement were issued to the defendant. The defendant in written statement had taken the preliminary objections regarding the maintainability of the present suit and also contended that the plaintiff has not come before this court with clean hands and is in guilty of suppressing the true material and correct facts.
14. It is the version of the defendant that she had purchased the land admeasuring 380 (sq yds) comprising khasra No. 19/13/1 situated in village Badusarai, New Delhi from the plaintiff for consideration and the plaintiff executed agreement to sell, GPA, receipt and affidavit etc all dated 04.06.1994 and on the same day, the plaintiff delivered actual physical possession of the said plot to the defendant and the defendant also constructed a boundary wall, five pucca rooms,tin shed etc and started using the same for residential purposes and he is in actual physical possession of the suit property without any Page No. 5/50 disturbance from any corner and the plaintiff since the date of purchase and therefore he is the legal and true owner of the same and residing therein with his family members. It is further the contention of the defendant that he had constructed the above said plots was within the knowledge of the plaintiff who had been frequently visiting the area where the plot in question is situated and the construction being raised by him.
15. It is further the contention of the defendant that the plaintiff had also filed the civil suit bearing no. 460/1995 tilted as Trilok Chand Sharma v. Sh Mahender Singh & Ors which is still pending disposal in the court of Sh. Naresh Laka, Civil Judge, Delhi and in the said suit the plaintiff on 01.09.2005 gave the statement before the Hon'ble Court that he had sold the land ad-measuring 380 sq. yds out of Khasra No. 19/13/1 situated at revenue state of Village Badusarai, New Delhi to the defendant and also executed agreement to sell, GPA, receipt and affidavit etc all dated 04.06.1994. The plaintiff on 25.05.2004 filed an affidavit and in the said affidavit the plaintiff had specifically admitted that he had already sold the entire land of khasra No. 19/14 situated at revenue state of Village Badusarai, New Delhi and he also admitted that since then he is not in possession of any part of the land bearing khasra No. 19/14. The said admission on part of the plaintiff is a judicial admission and in case the plaintiff rescind from the said admission then it would amount to willful contempt of court.
16. It is further the contention of the defendant that in the suit Page No. 6/50 bearing No. 460/95, a site plan which had been filed in the year 1991 by the plaintiff in his examination in chief as exhibit no. PW1/E, wherein it has been shown that the land shown Khasra No. 19/13, 19/14 and 19/18 of Village Badusarai different plots have been carved out and the plots measuring 380 sq. yards is shown in the ownership and in possession of the defendant and in the said site plan the plots which are in possession of Sh. Rattan Singh admeasuring 2500 sq yds +500 sq yds, plot admeasuring 1500 sq. yds in possession of Sh. Mahender, Ishwar singh, Surender, Raghubir and Phool Singh, plot admeasuring 300 sq yds is in possession of Sh. Phool Singh s/o Dhani Ram, plot measuring 500 sq yds in possession of Sh. Balwan Singh, plot measuring 1000 sq yds in possession of Smt. Ram Kumar, plot admeasuring 900 sq yds is in possession of Sh. Kundal Lal, plot admeasuring 500 sq yds is in possession of Sh. Randhir Singh, plot admeasuring 500 sq yds is in possession of Sh. Ranbir Singh, plot admeasuring 200 sq yds is in possession of Sh. Ran Singh are also shown and therefore, in the present plaint the plaintiff has wrongly stated that the defendant has trespassed over the suit land in the year 2004 and the plaintiff came to know about the same in the month of August 2005.
17. It is the case of the defendant that in Village Badusarai the consolidation proceedings are going on since the year 1996. In the land bearing khasra No. 19/13, 19/14 and 19/18, the plaintiff alongwith his father in law Sh Ram Niwas carved out an unauthorized colony in the year 1990 and on the spot, there was/ is no demarcation Page No. 7/50 between the Khasra No. 19/13 ,19/14 and 19/18 of Village Badusarai, New Delhi and they had sold the entire land to different persons and also sold the suit land to the defendant on 04.06.1994 including the answering defendant and all of them had built up their residential houses over the said land.
18. It is further contended that adjacent to the land of the plaintiff bearing Khasra No. 19/13, 19/14 and 19/18 the land having Kh. No. 11/9, 10,11,12,19,20,24, 19/15,19/22, 23/2,3,3,7,9,10,24/1,2,3,6,7,9 and 44 are situated and unauthorized colony developed thereon which is also having the community center, primary school, DESU Transformer, Water pump,Harijan Chopal and a Barat Ghar. In the said unauthorized colony also plots had been sold to agreement to sell, GPA etc., and therefore, their names have not been entered into the revenue record and in the revenue records are still in the name of the original bhumidars who have sold the plots in the unauthorized colony. In the said unauthorized colony more than 100 families are residing.
19. It is further the case of the defendant that in the consolidation proceedings the houses of the persons residing in the said unauthorized colony came within the phirni of Village Badusarai and the plots wherein the above said persons have built up their residential houses are treated as scheme kabiz in the consolidation proceedings. As in the said area all the facilities are available and because road are already in existence there is no need to cut out the mujrai and the in the scheme it is also decided that bhumidhars and Page No. 8/50 non bhumidhars who have their built up house within the phirni of the village that may be treated as a scheme kabiz.
20. It is further contended by the defendant that it is an admitted fact that the plot No. 94 falls in pre consolidation land bearing khasra No. 19/13/1. It is very pertinent to mention that the plaintiff in suit No. 460/95 had filed an affidavit dated 25.05.2004 and in the site plan which is already exhibited in the said affidavit as Ex PW1/E, the possession of the defendant over the plot admeasuring 400 sq yds is shown in his examination in chief and in the paragraph No. 4 of the affidavit, the plaintiff admitted that he had already sold the entire 3 bighas land which is falling in khasra. No. 19/14 of Village Badusarai and in his cross examination in the said suit the plaintiff specifically admitted that:-
(a) the plaintiff has rightly visited the land in question in the year 1990;
(b) now the entire land i.e. khasra No. 19/13/1, 19/14 and 19/18 of village badhusarai is fully built up colony and more than 10 -12 families are residing there;
(c) over the land which the plaintiff had sold out of khasra No. 19/14 and 19/18 presently a colony is residence and the plaintiff is not in a possession of any part of khasra No. 19/13/1, 19/14 and 19/18
(d) the plaintiff also admitted that on the spot the land bearing khasra No. 19/13, 19/14 and 19/18 are adjacent to each other and there is no demarcation of the said Khasra numbers of the land.
(e) the plaintiff has sold the land measuring 380 sq yds of khasra No. Page No. 9/50 19/13/1 at Village Badusarai to the defendant and also admitted that he had already executed the Agreement to sell, receipt, GPA, etc , all dated 04.06.1994 in favour of the defendant.
21. It is further the contention the defendant the plots bearing new Khasra Nos. 88 to 95, 97 and 99 which were carved out of the land bearing Khasra no. 19/13, 19/14 and 19/18 were already in existing prior to the commencement of the consolidation proceedings as the same are carved out by the plaintiff and his father in law namely, Sh. Ram Niwas, said plots were in existence prior to the year 1990 and there were metal road across all the plots and all basis civil amenities provided by the MCD in the year 1995-1996.
22. That during the consolidation proceedings a report was prepared by the consolidation officer with regard to above plots stating there in that all the plots are built up and people are residing in the said houses. It is also stated that those khasra numbers which were built up were treated as scheme kabiz and same is also shown in the books of owner and possession and same may be shown as possessors with their name in the plots possessed by them.
23. That as per report of consolidation staff and Halka Patwari, it is also mentioned that the new Khasra Nos. 96 and 98 are pertaining to the road/ rasta which fall over the Kh No. 19/13, 19/14 and 19/18 and further the case of the defendant that consolidation officers also found that in the above said land the colony has already in existence and divided in various plots which were sold to different peoples whose name are recorded in the karwai register after the consolidation and Page No. 10/50 the above said land had been included in lal dora abadi in the village and all the registering houses/ plots were treated as kayami and the occupiers of the said plots were given different numbers which are from 88 to 102 and the numbers 96 and 98 are for rasta.
24. It is the contention of the defendant that as most of the plots were sold by the defendant and his father in law through GPA, Agreement to sell etc therefore, the names of the respective purchasers were not mutated in the revenue records and said land remained in the name of the plaintiff and his father in law in the revenue record. Now the contention of the plaintiff has become malafide and he wants to take the undue benefits of the revenue record which shows his name on the record. It is a settled law of land, that mere entry in the revenue record does not create any right, title or interest of a person.
25. It is further the contention of the defendant that in suit bearing No. 460/95 on 07.11.2001 the defendant alongwith other persons filed an application under Order I, Rule 10 CPC read with Section 151 CPC and in the said application the defendant specifically stated that the defendant had purchased the land measuring 380 sq yds by way of Agreement to Sell, Power of Attorney etc. from the plaintiff and also stated that the defendant is in possession of the said plot and alongwith the said application the defendant also filed the agreement to sell, GPA etc all dated 04.06.1994 executed by the plaintiff in favour of the defendant. However, the plaintiff never challenged the said documents till the filing of the present suit and the suit filed by the plaintiff is not maintainable and hit by provision of Section 41 (h), Page No. 11/50
(i) and (j) of the Specific Relief Act and therefore, same is liable to be dismissed.
26. In reply on merits the defendant denied all the averments made by the plaintiff in his plaint except to the extent that the plaintiff had purchased the suit property in year 1985 and his name was mutated in the revenue records vide khatoni No. 9/17min 1987-1988 and re- titrated the submissions made by him in the preliminary objections as reproduced above.
27. It is the submissions of the defendant that plot Nos. 88 to 99 are already in existence before the commencement of consolidation proceedings. On 29.07.2005 the consolidation officer also passed an order bearing Resolution No. 22 wherein he treated the plot No. 88 to 99 as kayami and the said resolution plot No. 94 is shown in possession and ownership of the defendant. The passbook issued to the plaintiff has no authenticity the plaintiff has procured the passbook in collusion with the revenue officials.
28. It is further stated by the defendant that plot No. 88 is in possession of Suresh Kumar and Rajbir, plot No. 91 is in ownership and possession of Kundal Lal, plot No. 94 is in ownership and possession of answering defendant, plot No. 96 and 98 are pertained to rasta , Plot No. 97 is in the possession of Mahender Singh, Ishwar Singh, Raghubir Singh, Phool Kumar, all sons of Rattan Lal.
29. In view of the above facts the defendant prayed for the dismissal of the suit with the exemplary costs.
30. In replication the plaintiff denied the averments of the defendant Page No. 12/50 and reaffirmed the stand taken by him in the plaint and it was submitted by the plaintiff that plot No. 88 to 99 were allotted during the consolidation proceedings by the Assistant Consolidation Officer and was formerly part of Khasra No. 19/13/1. It is further submitted by the plaintiff that the application under Order I, Rule 10 CPC filed by the defendant is in suit No. 460/95 was dismissed by the concerned court and he never admitted the execution of alleged documents in respect of suit land (plot) in favour of the defendant.
31. On the basis of the pleadings of parties and the submissions advanced, the following issues were framed vide order dated 25.10.2018:
1)Whether the defendant is in possession of the suit property since about 04.06.1994 on execution of Agreement to Sell, GPA, Receipt and affidavit all dated 04.06.1994 in his favour by Trilok Chand Sharma (the plaintiff herein)? ....OPD
2)Whether the suit filed by plaintiff is barred by the law of limitation? ...OPD
3)Whether the jurisdiction of civil court is barred under Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation), Act 1948 in respect of the suit property? ...OPD
4)Whether the defendant has acquired any right in the suit property on being treated as scheme kabiz of the suit property, during the consolidation Page No. 13/50 proceedings? ...OPD
5)Whether the defendants has become the owner of the suit property by way of adverse possession?
...OPD
6)Whether the plaintiff is entitled for decree of possession of the suit property against the defendant?
...OPP
7)Whether the plaintiff is entitled for decree of permanent injunction against the defendant? ...OPP
8)Whether the plaintiff is entitled for a decree of recovery of damages @ Rs.2000/- per month for the period of three years prior to the date of filing of this suit i.e. 29.12.2007? ...OPP
9)Whether the plaintiff is entitled for mesne profits @ Rs.2000/- per month for the period of pendency of the suit up to the satisfaction of the decree? ...OPP
10)Whether the defendant is a bona fide purchaser of the suit property under khasra no,.19/13/1 constituting part of the extended lal dora during consolidation proceedings? ...OPD
11)Whether the plaintiff has suppressed the material facts and material documents from this court? ...OPD
12)Relief, if any
32. In order to prove his case, plaintiff during his evidence, examined five (5) witnesses in all.
33. The plaintiff entered in witness box as PW-1 and tendered his evidence by way of affidavit Ex PW1/A and reproduced the facts Page No. 14/50 already stated by him in his plaint and relied upon the below mentioned documents, he was cross examined at length by the counsel for the defendant and was discharged:-
Sl. No. Description of document(s) Exhibit/Mark No.
1. Sale Deed dated 02.12.1985 Ex.PW1/1(OSR)
2. Revenue report vide khatoni No.9/17min. Ex.PW1/2 Year 1987-88
3. Pass book by consolidation officer Ex.PW1/3 4. Kayami register Ex.PW2/1 5. Site plan Ex.PW1/5
6. Copy of case file of complaint case Mark-A bearing CC No.428590/16 titled Trilok chand v. Kundan Lal before Shri Siddharth Malik, Ld. MM, South West, Dwarka
7. Copy of FSL report dated 29.10.2013 and Mark-B and C 25.05.2014
8. Copy of summoning order dated Mark-D 11.02.2015
9. Legal notice dated 14.07.2007 Ex.PW1/10
10. Postal receipt dated 14.07.2007 Ex.PW1/11 CROSS EXAMINATION
1. Certified copy of evidence by way of Ex.PW1/DX1 affidavit tendered, examination in chief (Colly.) dated 25.05.2004 and cross examination recorded on 26.02.2005, 01.09.2005 and 13.10.2005 in Suit No.1190/16 (460/95)
2. Site plan bearing endorsement of Ex.PW1/DX2 Ex.PW1/E dated 26.02.2005
3. Application under Order I, rule 10, CPC Ex.PW1/DX3
4. Khasra girdawaries for the year 1995-96, Ex.PW1/DX2 1996-97, 1997-98, 2000-2001 (Khasra (Colly) No.19/13) and 19/14), 1989-1990 Page No. 15/50 (Khasra No.19/13/1, 19/14 and 19/18) and 2001-02 (Khasra No.19/18)
5. Halqua patwari report, register karwahi Ex.PW1/DX-3 chakbandi and the khatauni of the year (Colly) 1990-91 There is no documents exhibited as Ex.PW1/4, Ex.PW1/6, Ex.PW1/7, Ex.PW1/8 and Ex.PW1/9 as mentioned in evidence by way of affidavit Ex.Pw1/A.
34. PW-2, Rajesh Sharma, Halqua Patwari, Village Badusarai, Tehsil Kapashera, District South West Delhi appeared and proved the Khatauni Pamaish register pertaining to the year 2015-2016 as Ex PW2/A.
35. PW-3 Sh Pamod Kumar Singh, Assistant Ahalmad from the court of Sh Siddharth Malik, Ld. MM, Dwarka Courts, New Delhi has appeared and proved the following documents:
Sl. No. Descripiton of document(s) Exhibit/Mark No.
1. Summoning order dated Ex.PW3/1(OSR) 11.02.20215 passed in CC No.428590/16, PS Najafgarh
2. Investigation report filed by SI Ex.PW3/2(OSR) Veer Singh PS Najafgarh
3. FSL report which consists part of Ex.PW3/3(OSR) Ex.PW3/2
4. Complaint lodged by plaintiff Ex.PW3/4 Trilok Chand under Section 200 Cr.PC bearing CC No.428590/16
36. PW-4 Sh Manish Kanungo, Record room from SDM office Najafgarh, New Delhi appeared and proved the following documents:-
Page No. 16/50Sl. No. Descripiton of document(s) Exhibit/Mark No.
1. Extract of khatoni chakbandi Ex.PW4/A(OSR) pertaining to khata No.14/9min.
2. Extract of register karwahi Ex.PW4/B(OSR) pertaining to kh.No.88 to 99
3. Extract of masavi of village Badu Ex.PW4/C(OSR) Sarai
37. PW-5 SI Veer Singh appeared before this court and proved the documents i.e. certified copy of cross-examnation of PW5 dated 09.01.2017 in CC No.428590/16 and same is Ex.PW5/DX1.
38. Thereafter, plaintiff closed his evidence and matter was fixed for defendant evidence.
39. In order to prove its case defendant examined five witnesses
40. The defendant entered in witness box as DW-1 and tendered his evidence by way of affidavit Ex DW1/A and relied upon the below mentioned documents, he was cross examined at length by the counsel for the plaintiff and was discharged:-
Sl. No. Descripiton of document(s) Exhibit/Mark No.
1. Certified copy of evidence by Ex.PW1/DX1(Colly.) way of affidavit tendered, examination in chief dated 25.05.2004 and cross examination recorded on 26.02.2005, 01.09.2005 and 13.10.2005 in Suit No.1190/16 (460/95)
2. Site plan bearing endorsement of Ex.PW1/DX2 Ex.PW1/E dated 26.02.2005
3. Application under Order I, rule Ex.PW1/DX3 Page No. 17/50 10, CPC
4. Electricity bills of electricity Ex.DW1/1(Colly) meter installed in the suit property (OSR)
5. Khasra girdawaries for the year Ex.PW1/DX2(Colly) 1995-96, 1996-97, 1997-98, 2000-2001 (Khasra No.19/13) and 19/14), 1989-1990 (Khasra No.19/13/1, 19/14 and 19/18) and 2001-02 (Khasra No.19/18)
6. Halqua patwari report, register Ex.PW1/DX-3(Colly) karwahi chakbandi and the khatauni of the year 1990-91
7. Photocopies of documents dated Mark-A(Colly.) 11.1.1987
41. DW2 - Rakesh Kumar, Kanungo Sub Division Najafgarh appeared in witness box and proved the following documents:
Sl. No. Descripiton of document(s) Exhibit/Mark No.
1. Register Karwahi chakbandi bearing Ex.DW2/1(OSR) Khasra Nos.19//13/1 and 14 of village Badu Sarai
2. Khasra Girdawari pertaining to year Ex.DW2/2(OSR) 1989-1990
3. Khasra Girdawari pertaining to year Ex.DW2/3(OSR) 1995-1996
4. Khasra Girdawari pertaining to year Ex.DW2/4(OSR) 1996-1997
5. Khasra Girdawari pertaining to year Ex.DW2/5(OSR) 1997-1998
6. Khasra Girdawari pertaining to year Ex.DW2/6(OSR) 1998-1999
7. Khasra Girdawari pertaining to year Ex.DW2/7(OSR) 1999-2000
8. Khasra Girdawari pertaining to year Ex.DW2/8(OSR) 2000-2001 Page No. 18/50
42. DW-3 Unique Kaushik, Jr. Asst of Financial Commissioner, Commissioner Civil Lines, Delhi appeared in witness box and proved the Patwari report dated 29.02.2007 filed in case No.205/07 before Financial Commissioner Delhi along with copy of register karwahi chakbandi dated 17.02.2007 and copy of khatauni pertaining to the year 1990-1991 and same is Ex.DW3/A(running into 5 pages) (Colly.) (OSR).
43. DW- 4 Baljit Singh, tendered his evidence by way of affidavit as Ex DW4/A and deposed as per the lines of the defense of the defendant. In cross examination the witness admitted that neither any money was paid nor any negotiation with regard to the sale purchase of the suit property was held in his presence. Rest of the examination shows that the facts deposed in examination in chief by way of evidence are only heirs say which he gathered either from the patwari who had came to the village with regard to the chakbandi proceedings or from other sources.
44. DW- 5 Jeet Singh tendered his evidence by way of affidavit as Ex DW5/A and who also depose on the lines of the defense of the defendant. In cross examination he deposed that Suresh Devi purchased the suit plot of 380 sq yds for Rs 40,000/-. Suresh Devi had built the suit property prior to the chakbandi proceedings. He further deposed that the contents of my affidavit with regard to sale transaction of Suresh Devi are based on the knowledge gathered from the various people from the village. I have no personal knowledge Page No. 19/50 about the transaction. Rests of the contents are not reproduced herein being irrelevant for just decision of the present case.
45. I have heard the Ld. Counsel for both the parties at length and they are argued in tandem with the pleadings and evidence led on behalf of the respective parties and gone through the case file. ADDITIONAL FACTS:
46. This court deems appropriate that before giving its issue wise finding some additional facts need to be reproduced for the just decision of this case i.e.
47. Apart from the present suit filed by the plaintiff against the defendant, the plaintiff preferred three other suits regarding the other plots converted after consolidation of Kh. No. 19/13/1 and 19/14, against three other persons the details of the suits is as under:-
(i) Civil suit No. CS DJ ADJ No. 15756/ 2016 titled as Trilok Chand v. Mahender Singh & Ors regarding possession/ other reliefs of plot No. 97 measuring 1550 sq yds situated at Village Badusarai Delhi. It is also relevant to mention that before filing the above suit, the plaintiff initially filed the suit in the year 1991, for permanent injunction bearing no. 460/1995 against the Mahender Singh and his four brothers from restraining them to interfere in the land measuring 1500 sq yds in Kh No. 19/13/1 on the ground that the defendants are trying to take the forcible possession of the. In the said suit the plaintiff filed the site plan Ex PW1/E showing the possession of certain persons in his property same was confronted to him during cross examination in the present suit, which is admitted by the Page No. 20/50 plaintiff and the same is exhibited Ex PW-1/ DX-2. The plaintiff was also tendered his evidence by way of affidavit dated 25.05.2004 and the plaintiff was cross examined on 26.02.2005, 01.09.2005 and 13.10.2005 in the said suit, the plaintiff was confronted with the said testimony in the present suit during cross examination which is admitted by the plaintiff and the same is exhibited as Ex PW1/DX-1 (Colly) and also confronted with application under Order I, Rule 10 CPC filed by the land holders including the defendants in the present suit as well in the connected suits marked as Ex PW1/DX-3.
(ii) Civil Suit bearing No. - CS DJ ADJ No. 15755/2016 titled as Trilok Chand v. Kundan Lal Lal regarding possession of plot No. 91 measuring 950 sq. yds situated at Village Badusarai Delhi, and
(iii) Civil Suit bearing No. - CS DJ ADJ No. 15758/2016 titled as Trilok Chand v. Suresh Kumar and Anr. Regarding possession of plot No. 88 measuring 150 sq yds situated at Village Badusarai Delhi.
48. Before proceeding further for the purpose of better understanding of the case, from the pleadings of the parties the following facts emerge in brief:
Case of the plaintiff:
49. He is the owner of land measuring 7 bigha out of Khasra no. 19/13/1 (4 bigha-0 biswa) and 19/14 (3 bigha-0 biswa) situated at village Badusarai, Tehsil Najafgarh, New Delhi.
50. Consolidation proceedings commenced in the year 1996 in village badusarai, however, due to litigation, it effectively started in the year 1994 and concluded in the year 1995.
Page No. 21/5051. His land came within the extended lal dora abadi of village badusarai, Trh. Najafgarh, New Delhi.
52. His land was converted into plots and new Khasra no. 88 to 99 was given and the consolidation officer issued passbook in his name.
53. Out of plot nos. 88 to 99, he sold plot no. 89, 90,92,93,95 and 99 to the respective buyers, who are in possession of the same by raising super structure therein.
54. The remaining plots bearing Nos. 88,91,94,96,97 and 98 are in the sole and absolute ownership of the plaintiff and he with the help of family members and the friends raised the boundary wall and constructed one room, kitchen, latrin and bathroom in the plot No. 94 in the revenue state of Village Badusarai.
55. Villagers in order to grab his valuable property colluded with the revenue officials and got their name entered in Register Karwai Chakkbandi in the year 2005.
56. Defendant on the basis of some forged and fabricated documents started claiming herself to be the owner of plot No. 94 and illegally trespassed in plot no. 94 measuring 400 sq. yards somewhere in 2004.
57. He came to know about the same in the year 2005 when he visited the suit property.
58. He requested the defendants to vacate the plot but in vain. Police complaint was made on 13.11.2005 and thereafter too as no action was taken by the police, he filed complaint case dated 22.12.2006 and the same is pending in the Court of Ld. MM, Dwarka.
Page No. 22/5059. He made visits to the suit plot on various dates but in vain and ultimately legal notice was served upon them on 10.12.2007 to vacate the suit property and pay mesne profit @ 2000 p.m. for illegal use and occupation charges.
Case of the Defendant
60. Defendant had not denied the ownership of the plaintiff over the land measuring 7 bighas.
61. However, it is the stand of the defendant that alongwith plaintiff, his father-in-law namely Ram Niwas also purchased land measuring 3 bigha-5 biswa under Khasra no. 19/18.
62. Their land was adjacent and form one common land and no demarcation of the land ever took place and both the plaintiff and his father in law sold the entire land measuring 10 bigha-5 biswa by carving out a unauthorized colony to various persons including the defendant way before the commencement of consolidation proceedings.
63. The defendant purchased the land measuring 380 sq. yards comprising in Khasra no. 19/13/1 from the plaintiff by way of GPA, Agreement to sell, receipt, affidavit etc. all dated 04.06.1994 and taken the possession of the land on the same day and since then she is in peaceful possession of the suit plot and also constructed boundary wall, five rooms, tin shed and etc within the knowledge of the plaintiff.
64. As the entire colony was already in existence before the commencement of consolidation proceedings and majority of the land Page No. 23/50 by way of unauthorized colony was sold through GPA sales and therefore, the names of the respective buyers were not entered in the revenue record and ownership of land still reflecting under the name of the plaintiff.
65. In the consolidation proceedings, after giving new Khasra numbers 88 to 99, the ownership of the plaintiff was shown but as the purchasers of the plots sold by plaintiff were already in possession their names were mentioned in the Register Karwai Chakkbandi as Kayami (Possessors).
66. Plaintiff already filed a Civil Suit no. 460/1995(1991) before the Civil Sub Judge, Tis Hazari, Delhi in the year 1991, against Mahender Singh and his brothers all sons of Rattan Singh and the plaintiff in the said suit specifically admitted that he had sold the land measuring 380 sq yds to the present defendants out of khasra No. 19/13/1 and he further specifically admitted in his plaint that he had already sold the entire land under Khasra no. 19/14 and one bigha land under Khasra no. 19/13 and as on the filing of the said suit he is only the owner and in possession of land measuring 3000 sq. yds. i.e. 3 bigha.
67. The plaintiff is trying to take advantage of entries made in his name as owner in the consolidation passbook and his intention has become malafide.
Examination of the plaintiff as PW-1.
68. Before giving issue wise finding, it is relevant to produce the testimony of the plaintiff who entered the witness box as PW-1 Page No. 24/50
69. Plaintiff tendered his evidence by way of affidavit Ex PW1/A wherein he reiterated the stand taken by him in the plaint and is not reproduced for the sake of brevity.
70. In his cross examination the plaintiff admitted that his father-in law Ram Niwas in the year 1985, simultaneously on the same day also purchased the property admeasuring 3 bighas and 5 biswas situated under Kh. No. 19/18 in Village Badusarai. He further admitted that Kh No. 19/13/1 measuring 4 bighas, Kh. No. 19/14 measuring 3 bigha and Kh No. 19/18 measuring 3 bigha 5 biswa are adjoining to each other and formed contiguity. He further admitted that no demarcation of the land under Kh. No. 19/13/1, 19/14 and 19/18 has been done till date (20.03.2019, the date of deposition).
71. During cross examination he further admitted that plot measuring 2920 sq yds out of Kh No. 19/18 measuring 3 bigha 5 biswas was sold to Ratan Singh father of Ishwar Pahlwan on 05.10.1989 and he further deposed that five brothers brought land measuring 1500 sq yds under Kh N.19/18 and these five brothers informed my father in law that there is dipsute among themselves and they will buy land measuring 2920 sq. yds. in the name of their father within Kh No. 19/18 and they would return him the power of attorney, however, despite purchase of 2920 sq yds in the name of their father they did not return the power of attorney to my father in law. In the latter part of the cross examination plaintiff admitted that Sh Ishwar Pahlwan is in occupancy and in possession of land ad-measuring 1500 sq yds in Kh. No. 19/13/1. In the voluntary statement he submitted Page No. 25/50 that Mahender Singh, Ishwar Singh, Phool Singh, Sunder and Rajbir are showing the papers of land under Kh No. 19/18 signed by Ram Niwas as land under Kh N. 19/13/1 and all these persons are in forceful occupation of land. The plaintiff further admitted that on the same day when Ratan Singh purchased 2920 sq yds another sale deed of land measuring 1080 sq yds comprised in Kh No. 19/18 and 19/13/1 was executed in the name of Shakuntala w/o of Col. Dhaiya. In voluntary statement the plaintiff submitted that out of 1080 sq yds, 580 sq yds was from Kh No. 19/18 and balance 500 sq. yds was from Kh NO. 19/13/1. He denied the suggestion that area ad-measuring 750 sq yds was sold under Kh No. 19/13/1. In answer to the question put to the plaintiff that when after sale of 2920 sq yds in favour of Rattan Singh, only land of 330 sq yds was left under Kh No. 19/18 how you could sell 580 sq yds under Kh No. 19/18 to which the plaintiff simply replied that he do not know how much land Ram Niwas sold, he only told me that he had purchased 3500 sq yds and not 3250 sq yds.
72. In cross examination he further admitted that on 20.06.2002 he sold 400 sq yds under Kh No. 19/13/1 to one Angoori Devi r/o Bersari and the possession of the 400 sq yds land was handed over to her. In voluntary statement plaintiff submitted that land to Angoori Devi was sold under Agreement to Sell and it was written that I will execute the sale deed when she wants to get it registered.
73. In his further cross examination dated 22.03.2019, the plaintiff initially denied about the suggestion that there is rasta opposite to the Page No. 26/50 plot of Mahender and his brothers and Dharambir Singh and Rohtash Singh. However, in voluntary statement he submitted that it is true that there is rasta on both the locations mentioned above. Two plots no. 96 and 98 were given to me during chakbandi and there was no rasta. The five brothers Mahender Singh, Ishwar Singh, Phool Singh, Sunder and Rajbir had taken illegal possession of plot No. 97 and carved out a rasta. He further submitted that plot No. 96 is 250 sq yds and plot No. 98 is 400 sq yds. In answer to the question put to him the plaintiff admitted that combined area under plot No. 96 and 98 is more than 1300 sq yds and both are rastas. He denied the suggestion that Rajbir and Suresh are in possession as owner of land ad- measuring 250 sq yds situated in Kh No. 19/14 . In voluntary statement he submitted that plot No. 88 under their occupation as per chakbandi pass book is 150 sq yds. There are in illegal possession of land exceeding 150 sq yds under Kh No. 19/14.
74. The plaintiff in cross examination further admitted that he sold plot No.89 in Kh No. 19/14 measuring 500 sq yds to Ranbir Singh s/o Sher Singh. In voluntary statement he stated in the agreement it was written that the sale deed will be registered when the case will become final. At this stage, court question was asked to the plaintiff to tell about the particulars of the agreement stated by him in voluntary statement. In answer to the court question, the plaintiff deposed as follows:
" There is stay order passed by Tis Hazari court with regard to land under Kh No. 19/13, 19/14 though he do Page No. 27/50 not know the exact date of stay but it was somewhere in the year 1991 . He do not remember the date of signing the agreement to sell but the agreement to sell was signed and executed between Ranbir Singh and brother of Ranbir Singh. Both of them entered agreement with regard to 500 sq yds each. The agreement with both of them was of Rs 50,000/-. I do not signed any and execute any other document other than agreement to sell to Ranbir Singh s/o Sher Singh and Randhir s/o Ram Swaroop with regard to plot No. 89 and 90 respectively under Kh No. 19/14 and further submitted that he handed over the possession to both of them at the time of signing of agreement.
75. The plaintiff further admitted that he sold plot No. 92 measuring 900 sq yds to Ram Kaur d/o Ichha Ram in Kh No. 19/14. He further admitted that he had sold plot No. 93 measuring 550 sq yds to Surender Kumar s/o Mukhtiyar Singh, Balwan Singh s/o Mange and Ravinder Kumar s/o Om Prakash. He denied the suggestion that plot No. 93 is under Kh No. 19/14 . In voluntary statement he stated that the same in Kh No. 19/13/1 .
76. He further admitted that he has sold plot No. 95 to Rohtas s/o Phool Singh measuring 300 sq yds and the same is under Kh No. 19/13/1 and not 19/14.
77. The plaintiff further admitted that it is correct that his land ad- measuring 7 bighas under Kh No. 19/13/1 and 19/14 neither increased nor decreased after completion of chakbandi proceedings. He denied the suggestion that after mujrahi his land holding decreased by 800 sq yds. However, the court made the observations that from Ex PW1/3it Page No. 28/50 is observed that the total area land before consolidation proceedings
--- Chakbandi was 6 bighas and 5 biswas and after consolidation proceedings the chakbandi was 6 bighas 17 biswas.
78. The plaintiff further admitted that he has filed a suit for permanent injunction in the year 1991 in Tis Hazari court. The plaintiff was confronted with the certified copy of evidence by way of affidavit tendered in examination in chief dated 25.05.2004 and cross examination recorded on 26.02.2005, 01.09.2005 and 13.10.2005 in suit No. 1109/06 (new number) and bearing previous suit No. 460/95 dated 16.12.1995/1991 marked as Ex PW1/DX-1 (Colly), site plan bearing endorsement of Ex PW1/E dated 26.02.2005 is marked as Ex PW-1/DX-2 and application under Order I, Rule 10 CPC marked as Ex PW1/DX-3.
79. In answer to the question put to the plaintiff, the plaintiff admitted that the contents of paragraph No. 4 of his evidence by way of affidavit in Ex PW1/DX-1 (colly), wherein he had stated that he has sold the whole land under Kh No. 19/14 as correct.
80. Attention of the plaintiff was drawn at point C to D of Ex PW1/DX-1 (Colly) wherein he admitted that 380 sq yds in plot No. 94 was sold to Suresh Devi (defendant herein). In voluntary statement the plaintiff tried to deny the statement on the pretext that the document during recording of his statement was shown to him for a distance and therefore, I wrongly answered it as yes. In his further cross examination he admitted that he has never filed any application before the concerned court seeking the rectification of the error committed Page No. 29/50 during the earlier cross examination on 01.09.2005.
81. The plaintiff in his further cross examination on 29.03.2019 admitted that as on today he is not in possession of any land of suit property and he last visited the suit property in the year 2005.
82. Plaintiff admitted the site plan bearing endorsement of Ex PW1/E dated 26.02.2005 filed by him in suit No. 460/95 filed by him before Tis Hazari Court in the year 1991. He deposed that site plan was prepared by draftsman upon his instructions in Tis Hazari Court. In answer to the question he admitted that in the site plan he has shown a plot of land in the blue colour ink measuring 1500 sq yds in the names of Sh Mahender, Ishwar Singh, Surender, Raghubir and Phool Singh, all sons of Rattan Singh as they were in possession at the time of preparation of site plan. He further admitted that in his cross examination Ex. PW-1/DX-1 dated 13.10.2005 that he correctly deposed that the land measuring 1500 square yards under Khasra no. 19/13/1, subject matter of suit no. 460/1995 was lying vacant till the year 1990. He further admitted that same is plot no. 97.
83. He further admitted that in the site plan a plot ad- measuring 950 sq yds reflects in the name of Kundan. In voluntary statement the plaintiff submitted that the land is under Khasra No. 19/14 and presently it is plot No. 91.
84. The attention of the witness is also drawn at parenthesis 'A' to parenthesis 'B' in the site plan Ex PW1/E admitted in the present case as Ex PW1/DX-1(Colly) and question was asked to tell who is in possession of the land mentioned at point A to point B. In answer to Page No. 30/50 the question, plaintiff admitted in possession of Suresh Devi (defendant herein). In voluntary statement the plaintiff submitted that at the time when the site plan was prepared the land under point A to point B in site plan was vacant and Suresh Devi w/o Surender on the basis of bogus and forged documents has become occupant/ owner of said land. The plaintiff further admitted that Ran Singh is in possession of plot measuring 200 sq yds reflecting in the site plan from point C to point D. He further admitted that Ran Singh is the father of one of the defendants (arrayed as defendant in another suit filed along with this suit) namely, Suresh.
85. The plaintiff in his cross examination dated 04.04.2019 shown the General Power of Attorney dated 18.09.1986 filed by the plaintiff alongwith documents in suit titled as Trilok Chand Sharma Vs Mahender Singh bearing CS No. 15756/2016 (old suit No. 460/1995). In answer to the question the plaintiff admitted that it the same GPA about which he had earlier stated to not have been returned by the five brothers i.e. Ishawar Singh and etc to his father in law Ram Niwas. The plaintiff to another question asked answered in affirmative that the GPA dated 18.09.1986 and affidavit dated 18.9.1986 was executed by his father in law Ram Niwas. The plaintiff further admitted that the sale deed executed in favour of Shakuntala Devi w/o Col. Dhaiya in which land measuring 1080 sq yds comprised under Khasra No. 19/18 and 19/13/1 was sold by him and his father in law and it bears their signatures.
86. In answer to the question that since 1989-1990 constructed Page No. 31/50 houses and boundary walls are present in the entire land in question. The other villagers were in possession of all three khasra Nos. 19/13/1, 19/14 and 19/18, the plaintiff denied the question and answered as follows:
In the year 1995 the five brothers Mahender and others tried to forcibly occupied the land under Kh No. 19/13/1 measuring 1500 sq yds. Thereafter I lodged a police complaint and also filed a civil suit against them. I was granted stay and there was construction undertaken on land on Kh. No. 19/13/1. There was no construction on land under Kh No.19/13/1 and 19/14. I have no knowledge about Kh No. 19/18.
87. As the plaintiff during his cross examination admitted his evidence by way of affidavit dated 25.05.2004 and cross examination recorded on 26.02.2005, 01.09.2005 and 13.10.2005 in previous suit No. 460/95 marked as Ex PW1/DX-1 (Colly) and the site plan bearing endorsement No. Ex PW1/E marked as Ex PW1/DX-2, it is relevant to reproduced certain important facts/ contents deposed by the plaintiff in civil Suit No. 460/95.
88. In his evidence by way of affidavit dated 25.05.2004, the plaintiff deposed that he has already transferred one bigha out of Kh No. 19/13/1 and whole land i.e 3 bighas out of Kh No. 19/14 and at present left with 3000 sq yds I..e 3 bigha in Kh No. 19/13/1 shown in red colour in the site plan. He further deposed that the site plan is Ex PW1/E was prepared on his instructions and in his presence.
89. In cross examination dated 01.09.2005, the plaintiff deposed Page No. 32/50 that he lastly visited the suit property only in the year 1990. The entire property in dispute is build up and 10-12 families are residing therein. He further admitted that as per aks-sizra Ex PW1/D-1, the Khasra mentioned in the above documents are adjacent to each other and also adjutant to the abadi of village Badusarai. He further admitted that the land measuring 1080 sq yds was sold to Smt Shakuntala vide sale deed Mark A out of Khasra no. 19/18 and 19/13/1 and only 150-200 sq. yards were from Khasra no. 19/13/1 and rest from Khasrfa no. 19/18. He further admitted that land measuring 496 sq yds out Kh No. 19/13/1 was sold to Sh Varinder Singh and Sh Ravinder Kumar on 19.05.1988 vide power of attorney Mark 'B'. Land measuring 300 sq yds out of Kh No. 19/13/1 to Rohtash and Mahesh s/o of Phool Singh on 31.10.1990 vide documents Mark 'C'(collectively 6 pages). Land measuring 380 sq yds out of Kh No. 19/13/1 to Smt. Suresh on 04.06.1994 vide documents Mark 'D' (collectively 6 pages). Land measuring 1000 sq yds out of Kh No. 19/14 to Ram Kaur on 18.09.1986 vide documents Mark 'E' (Collectively 6 pages). Land measuring 500 sq yds out of Kh no.19/14 to Ranbir Singh s/o Sher Singh vide document Mark 'F' (collectively 6 pages) on 16.04.1987. Land measuring 500 sq yds out of Kh No. 19/14 to Randhir Singh s/o Ram Swarup Singh vide document Mark 'F' (collectively 6 pages) on 16.04.1987.
90. The plaintiff further deposed that he filed the suit in 1991 and executed the above documents of sale prior to 1991 and even thereafter, he denied his knowledge about the fact whether the Page No. 33/50 purchaser constructed houses on or not. He further admitted that the site plan Ex PW1/E is not correct as per site as upto date, however, in voluntary statement he stated that when the site plan was prepared, it was correct as per site and subsequent constructions have been made thereafter. He further admitted that the particular land which he had sold out Kh no. 19/14 and 19/18 presently a colony has been in existence. He further admitted that at present (at the time of his deposition in cross examination) he is not in possession of any part of land in Kh No. 19/13/1 and 19/13/15.
91. In his further cross examination dated 13.10.2005, the plaintiff deposed that he cannot say that in the entire suit land the colony has been developed. He had not seen the suit property after the year 1990. He cannot say that on 01.11.1991 the unauthorized colony has already developed in the suit. He admitted that he and Ram Niwas carved out the unauthorized colony in village Badusarai. He further admitted the fact that "it is correct that to whom I sold the land through GPA, an agreement to sell etc, in those purchaser (sic) purchases the land has not been mutated in the revenue record. It is correct that I am no in possession of any land bearing Kh No. 19/13/1 and 19/14 of village Badusarai".
92. The plaintiff further admitted that the entire construction over the property had held much prior to year 1994. He further admitted that he have never taken any action against the person who had encroached upon my land. He further admitted that it is correct that land which is in possession of the defendants ( i.e. Mahender, Ishwar Page No. 34/50 Singh, Surender, Raghubir and Phool Singh) on the spot is having Kh NO. 19/18 of Village Badusarai. It is also correct that the defendants are not in possession of land bearing Kh No. 19/13/1. The plaintiff further deposed that I have right only to one plot of Kh NO.19/14 but I cannot tell the measurement of the said plot.
ISSUEWISE FINDING
93. On the basis of the cross examination of the plaintiff, this Court deems appropriate to decide Issue no.1 first.
Issue No.1: Whether the defendant is in possession of the suit property since about 04.06.1994 on execution of Agreement to Sell, GPA, Receipt and affidavit all dated 04.06.1994 in his favour by Trilok Chand Sharma ? ....OPD
94. The onus to prove the above issue was on the defendant, it is settled law that onus can be discharged by a party by either leading its affirmative evidence or by extracting the truth from the case/ evidence / examination of the plaintiff.
95. In the present case, the plaintiff was examined at length and during the cross examination, the attention of the plaintiff was drawn at point C to D of his evidence Ex PW1/DX-1 (Colly) filed in Civil Suit no. 460/1995, wherein he admitted that 380 sq yds in plot No. 94 was sold to Suresh Devi . In voluntary statement the plaintiff tried to deny the statement on the pretext that the document during recording of his statement was shown to him for a distance and therefore, I wrongly answered it as yes. In his further cross examination he admitted that he has never filed any application before the concerned Page No. 35/50 court seeking the rectification of the error committed during the earlier cross examination on 01.09.2005. Therefore, it stands proved that the plaintiff himself admitted that he has sold land measuring 380 sq yds to Suresh Devi as plot No. 94.
96. Further, the plaintiff himself admitted that he has filed the Civil Suit No. 460/1995 in the year 1991. He further admitted that he has also filed the site plan Ex PW/E in the year 1991 in the Civil Suit No. 460/1995 which is exhibited as Ex PW1/DX-2 in the present suit. The attention of the witness is also drawn to parenthesis 'A' to parenthesis ' B' in the site plan and question was asked to tell who is in possession of the land mentioned at point A to point B. In answer to the question, plaintiff stated that it is in possession of Suresh Devi. In voluntary statement the plaintiff submitted that at the time when the site plan was prepared the land under point A to point B in site plan was vacant and Suresh Devi w/o Surender on the basis of bogus and forged documents has become occupant/ owner of said land.
97. The contention of the plaintiff made in voluntary statement that defendant entered the suit plot on the basis of forged and fabricated documents stand demolished by his own testimony made by him in Civil Suit No. 460/1995 discussed herein below.
98. Even in his cross examination dated 26.02.2005 in civil Suit No. 460/1995 filed in the year 1991, he specifically admitted that land measuring 380 sq yds out of Kh No. 19/13/1 to Smt.Suresh Devi on 04.06.1994 vide documents Mark 'D' (collectively 6 pages).
99. On the basis of above deposition of the plaintiff, it stands Page No. 36/50 proved not only preponderance of probabilities but beyond reasonable doubt (even though the term belong to criminal jurisprudence) that the plaintiff has sold the plot measuring 380 sq yds out of Khasra No. 19/13/1 situated at Village Baduasari, Najafgarh, New Delhi to the defendant and it also established that the no. 94 was subsequently given to the above plot in the year 2005 in the consolidation proceedings.
100. Therefore, the stand of the plaintiff that he was in possession of plot No.94 allotted to him after the conclusion of consolidation proceedings and in the year 2005 and he with the help of his family and friend constructed the boundary wall, one room, kitchen, latrin and bathroom is not sustainable.
101. It is further relevant to observe that the plaintiff never brought any family member or friend in his support as a witness to prove that they have constructed the suit plot in the year 2005.
102. It is further relevant to observe that the pleadings of the plaintiff in the plaint are self contradictory. On one hand he stated that the consolidation proceedings completed in March-April 2005 and passbook was handed over to him by the consolidation officer of new Khasra no. 88 to 99 and thereafter, he raised construction and on the other hand he stated that the defendant on the basis of forged and fabricated documents forcibly trespass in the plot sometime in the year 2004.
103. It is not explained by the plaintiff in his entire case that how the defendant can enter sometime in the year 2004, while he himself was Page No. 37/50 in possession of the plot and constructed the same with the help of family and friends in 2005?
104. Thus, the assertions of the plaintiff that he is possession of the suit plot in the year 2005 are not sustainable and it stands established from his own documentary as well as oral evidence that he sold the land measuring 380 sq. yards out of Khasra no.19/14 by way of agreement to sell, GPA etc dated 04.06.1994 to the defendant and the defendant is in actual and physical possession of the suit plot to which new Khasra no. 94 was given in the Consolidation proceedings.
105. In the present suit the plaintiff is claiming the possession of plot measuring 400 sq. yards whereas he himself admitted that he has sold plot measuring 380 sq. yards to the defendant. It is neither the case of the plaintiff nor he lead any evidence to establish that the defendant after purchasing the plot from the plaintiff took the possession of excess area of 20 sq. yards out of the land of the plaintiff.
106. Even the plaintiff has not lead any evidence to prove that he was at any point of time before the alleged possession taken by the defendant in 2005 (even though it stands proved that the defendant is in possession since 04.06.1994), he was in possession of any land under Khasra No. 19/13/1 and 19/14.
107. The entire case of the plaintiff is based on the consolidation pass book, however, as it stands established that the defendant is in possession of plot No. 94 since 04.06.1994 and the plot was sold through GPA / SPA/Will sale and the plaintiff himself admitted the fact as correct that when the land is sold on GPA/ SPA basis the name Page No. 38/50 of the purchaser is never entered in the revenue record, therefore, the entry in the name of the plaintiff in the consolidation pass book Ex PW1/3 only shows the ownership of the plaintiff and not the possession.
108. It was one of the arguments of the Ld. Counsel for the plaintiff that the defendant cannot claim right, title or interest in the plot on the basis of GPA/SPA/ Will etc in light of the judgment passed by the Hon'ble Supreme Court of India in Suraj Lamp & Industries (P) Ltd. (2) vs. State of Haryana (2012) SCC 656.
109. This court is of the considered view that in the judgment Suraj Lamp (supra), it was held by the apex Court that SA/GPA/WILL sales by itself cannot confer title over the suit property and that can be done only on the basis of registered conveyance (sale) deed. However, it was also held by the Hon'ble Supreme Court that if under the agreement the possession is also handed over to the purchaser and if the same is executed before the amendment act of 2001 in such case the transferee has the right to defend his possession by virtue of Section 53 A of the Transfer of Property Act, 1953 even though the agreement to sell is unregistered. Admittedly, in the present case, the agreement to sell was executed on 04.06.1994 and hence, the same can be relied upon to resist the plaintiff from taking the possession of the property.
Section 53A of the TP Act, provides as follows:-
Part Performance. - Where any person contracts to transfer for con- sideration any immoveable property by writing signed by him or on Page No. 39/50 his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, contin- ues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has per- formed or is willing to perform his part of the contract, then, notwith- standing that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed thereof by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and per- sons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract Provided that nothing in this section shall affect the rights of a trans- feree for consideration who has no notice of the contract or of the part performance thereof.
110. On plain reading of the section, it provides that if under agreement to sell, the possession of the property is handed over to the transferee by the transferor and the transferee has done some act in furtherance of the contract and has performed or is willing to perform his part of the contract in such circumstance, the transferor or his representatives are barred from taking the possession of the property from the transferee.
Page No. 40/50111. Admittedly, in the present case nothing is left to be performed by the defendant under the agreement to sell dated 04.06.1994 as the defendant already paid the entire sale consideration to the plaintiff and the possession is taken over by the defendant and the defendant in furtherance of the agreement, raised the construction over the suit property. Therefore, by virtue of Section 53 A of the TP Act, the plaintiff and his representatives has no right to claim the possession of the suit plot from the defendant.
112. The Ld. Counsel for the plaintiff further argued that in the complaint case, the agreement to sell, GPA, affidavit and receipt all dated 04.06.1994 were sent to FSL for examination and the copy of the complaint case, investigation report filed by SI Veer Singh and FSL report were tendered in evidence as Ex PW3/1 to Ex PW3/3 and the FSL, Rohini gave its finding that on the above documents does not bear/ matches with the signatures of the plaintiff and same are forged and fabricated.
113. The contention of the ld. Counsel is not sustainable for the reason that once the plaintiff himself admitted the sale of the suit plot to the defendant on 04.06.1994 in such a scenario the opinion of the expert is wholly irrelevant.
114. Even otherwise also, independent of the admission of the plaintiff in the present case, the FSL report cannot be relied upon on the following grounds:-
(a) The plaintiff produced Parmod Kumar, Assistant Ahlmad, Court of Sh. Siddarth Malik, Ld.MM, Dwarka Court New Delhi, who tendered Page No. 41/50 into evidence the summoning order dated 11.02.2015 passed in CC no.
428590/2016, PS najafgarh as Ex. PW-3/1(OSR), investigation report filed by SI Veer Singh, PS Najafgarh as Ex. PW3/2 (OSR), FSL report which constitutes part of Ex.PW3/2 as Ex. PW-3/3 dated 23.05.2014 (OSR) (mode of proof objected to by the ld. Counsel for the defendant as a photocopy of report dated 29.10.2013 is enclosed with) and complaint lodged by plaintiff u/s 200 Cr.PC as Ex. PW3/4(pending before Ld. MM).
(b) Plaintiff further produced IO Veer Singh, belt no. D4893, PS Dwarka North, New Delhi as PW-5 who deposed in his chief examination that (only relevant portion reproduced) as per direction of the Ld.MM dated 18.07.2012 he conducted the investigation and collected the documents of plot no. 88 from Suresh Kumar & ors. and plot no. 91 from plaintiff and of plot no. 94 from Suresh Devi. Thereafter, he took the admitted signatures of complainant ( plaintiff herein) and sent the same to FSL, Rohini and thereafter he collected the report and submitted the same before the Court of Ld. CMM, South West, Dwarka. When he demanded the documents of plot no. 97 from Ishwar & others they produced GPA pertaining to Khasa no. 19/18/1.After that he received record of plot no. 97 from Halka Patwari and he came to notice that plot no. 88 to 97 came under Khasra no. 19/13/1/14 situated in vill Badusarai and thereafter he filed the original halka patwari report, sijra report, original documents pertaining to plot no.88,91 and 94, FSL report in the Court of Ld. CMM, Dwarka.
Page No. 42/50(c)In cross examination he admitted that he did not prepare any seizure memo with regard to the documents seized by him. He further admitted that he had not given any notice u/s 160 Cr.Pc to the accused persons and not prepared any road certificate. He further admitted that he had taken the signatures of plaintiff and the defendant and the signatures were taken without the permission of the Court and he took the signatures of Kundan lal at his own volition.
(d) On the basis of above deposition of PW-5, the fact that comes into light before the Court is that the signatures of plaintiff was taken by the IO without the permission of the Court even though it not the ground to discard the FSL report, however, it creates a doubt and it is not clear whether the IO had taken the signatures of the relevant period or not as the documents of plot no. 88, 91 and 94 were executed in different years. Therefore, it is not clear that which 'admitted' signatures of the plaintiff were sent for comparison to FSL? As it is the case of the defendant that the document in question were executed by the plaintiff in the year 1994 whereas it is the case of the plaintiff that they are forged and fabricated in the year 2005 meaning thereby either the admitted signatures of the plaintiff of the year 1994 or 2005 are relevant for comparison and in absence of any proof that signatures of which year were sent for comparison, the FSL report cannot be relied upon especially under the circumstance that the expert who prepared the report was never called as witness in the present case by the plaintiff.
(e) Further on perusal of FSL report, it is observed that there are two Page No. 43/50 reports on record, one dated 29.10.2013 and another dated 22.05.2014. As per report dated 29.10.2013, the FSL, Rohini, mentioned that on the basis of standard writing/signatures marked S1 to S4 & A1 to A18 of Trilok Chand Sharma (plaintiff) sent on 24.06.2013 & 14.08.2013, (under the head LABORATARY EXAMINATION, PART-II), it has not been possible to express any opinion, however, further attempt can be made if some more genuine admitted writing/signatures preferably of contemporary period as well as some more specimen writing or signature of the person concerned are produced and sent to laboratory.
(f) While in report dated 22.05.2014, on the basis of documents sent on 20.12.2013, on the basis of standard writing/signatures marked as S1 to S4 & A1 to A18 of Sh. Trilok Chand Sharma ( plaintiff), the FSL gave its finding that the signatures differ from the specimen in comparison with the signatures on transfer documents i.e GPA, ATS, etc.
(g) Therefore, it transpires that the signatures of plaintiff are taken and sent twice for examination by the IO, whereas, the IO never deposed to this effect in his testimony.
115. Therefore, as per the factual position reproduced above, merely on the basis of FSL report without calling the expert in the witness box, especially under the circumstances that it is not clear that which signatures of the plaintiff, from which documents-whether of relevant period or present period and in presence of whom those signatures were taken, are sent to FSL by the IO that too without the prior Page No. 44/50 permission of the Court of LD. MM, the FSL report per se cannot be relied upon.
116. In view of the above detailed discussion made above, the contentions raised by the ld. Counsel for the plaintiff are not sustainable and on the basis of testimony of the plaintiff himself , the issue in question is decided in favour of the defendant and against the plaintiff and it is held that the defendant is in possession of the suit property since 04.06.1994 on the basis of the GPA, agreement to Sell, affidavit and receipt all dated 04.06.1994.
Issue No.2 Whether the suit filed by plaintiff is barred by the law of limitation? ...OPD
117. As already discussed while deciding the issue no.1 that by virtue of Section 53A of Transfer of property Act, the defendant has no right to seek possession from the defendant, therefore, the issue whether the suit is barred by limitation has become redundant and need not be dwelt upon.
118. Moving further to decide the remaining issues i.e.
119. Issue No. 3:- Whether the jurisdiction of civil court is barred under Section 44 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation), Act 1948 in respect of the suit property? ...OPD
120. Onus to prove was on the defendants however, neither any evidence is lead nor the issue was pressed during arguments. Therefore, the issue is decided against the defendant and in favour of Page No. 45/50 the plaintiff.
121. Issue No.4:- Whether the defendant has acquired any right in the suit property on being treated as scheme kabiz of the suit property, during the consolidation proceedings? ...OPD
122. The onus to prove the issue was on the defendant. The defendant produced Unique Kaushik from the office of FCR Delhi who tendered in evidence the halqa patwari report as part of Ex DW3/A (Colly) (OSR).
123. As per the report of the patwari dated 29.02.2007 which is reproduced herein (Note the same was in Hindi and converted into English for better understanding) " In reference to case bearing no.100/06-CA and case bearing no.102,103,101/06-CA, the inspection was conducted at the spot of Khasra no. 19/13/1(4-0) and 19/14 ( 3-0). It is submitted that the aforesaid Khasra numbers are prior to the consolidation proceedings and their ownership is in the name of Trilok Chand s/o Sh. Hardwari lal Sharma r/o 165-Wz, harinagar, Delhi, (the plaintiff herein). The ownership of 0-15 biswas out of Khasra no.19/13/1 is in the name of Smt. Shakuntla Kumari w/o Sh. S.S. Dhayia r/o Khanda, District Sonepat, Haryana. On inquiry it came to the knowledge that the above person about 10 years ago after cutting the plots out of the aforesaid Khasra numbers as a colony sold the same to different buyers, Page No. 46/50 whose names after consolidation are recorded in the Register Karwai. Sir, after consolidation the Khasra numbers came within the jurisdiction of extended lal dora of village Badusarai. The name of the persons who were residing in those plots after construction of their houses, were recorded as kayami as per their possession in the plots/houses and after conclusion of consolidation proceedings their names were entered in the register karwai Chakbandi and all the plots/houses were given different numbers i.e. number 88 to 102 out of which Khasra no. 96 and 98 is passage. Sir, before consolidation the Khasra numbers were of agricultural land and developing them as a colony was not lawful and after consolidation as per section 21 of the DRC Act, the land has to vest in Gram Sabha, however, as the Khasra numbers were in the ownership of Trilok Chand Sharma therefore after consolidation the ownership was recorded in his name and the persons who were in possession at the spot, they were recorded as possessors. The farad before and after the consolidation is attached herewith".
124. On perusal of above report it is observed that the defendants are not recorded as scheme kabiz on the basis of any resolution but on the basis of their previous possession over the land to which subsequently new khasra numbers bearing No. 88 to 99 were given.
Page No. 47/50125. Therefore, the issue is decided against the defendant and in favour of the plaintiff.
126. Issue No. 5:- Whether the defendants has become the owner of the suit property by way of adverse possession? ...OPD
127. The above issue, that whether the plaintiff became the owner of the suit property by way of adverse possession is firstly beyond the pleadings as in the written statement defendant never pleaded ownership by way of adverse possession and secondly, the plea of adverse possession is in direct contradiction of issue No.1 as in issue No.1 the plaintiff is claiming ownership on the basis of GPA, agreement to sell, affidavit and receipt which means the defendant is claiming the primitive possession, whereas in the plea of adverse possession the possession is always hostile to the original owner. Accordingly, the present issue needs not to be dwelt upon.
128. Issue Nos. 6,7,8 and 9 are taken up together and in view of the finding upon issue Nos. 1 and 2, all the issues are decided against the plaintiff and in favour of the defendant.
129. Issue No. 10 that whether the defendant is bone fide purchase of the suit property under khasra No. 19/13/1 constituting part of the extended lal dora during consolidation proceedings is also decided in favour of the defendant and against the plaintiff, in view of the discussion and observations made by this court while deciding issue No.1.
130. Issue No. 11 - Whether the plaintiff has suppressed the material facts and material documents from this court? ...OPD Page No. 48/50
131. In view of the detailed discussion made by this Court, there is no iota of doubt that the plaintiff not only suppressed the material facts to the effect that he has already sold the suit property to the defendant by way of GPA/ SPA/ SA Sale but also it stands proved that the plaintiff suppressed the documents qua the Civil Suit bearing No. 460/1995 wherein during cross examination he specifically admitted that he has already sold land measuring 380 sq yds to the defendant and the possession of the defendant duly reflected in site plan Ex PW1/E filed in the Civil Suit and admitted by him in the present suit as Ex PW1/DX-2 (Colly).
132. The present suit filed by the plaintiff against the defendant despite knowing the factual position and the same was in the exclusive knowledge of the plaintiff even before filing of the present suit and it is only due to greed on the basis of consolidation passbook, which only pertains to the title of the plaintiff because he sold the suit property on the basis of GPA/AS sales, the plaintiff unnecessarily dragged the defendant in this frivolous litigation without any justifiable grounds and the defendant is made to suffer and defend the present litigation for a period of 15 years, which not only caused the mental agony to the defendant but the defendant also forced to bear the financial burden and constant harassment in the hands of the plaintiff. It also stands established that the plaintiff in fact suppressed the material facts and documents from this Court. In view of the above discussion the issue is decided in favour of the defendant and against the plaintiff.
Page No. 49/50Conclusion:
133. In view of the finding on issue No.1, the suit of the plaintiff is here by dismissed and further, in view of the finding given by this Court on issue no.11, the plaintiff is saddled with costs of Rs. 50000/- (Fifty Thousand only) payable to the defendant .
134. Decree sheet be drawn accordingly.
135. File be consigned to record room after due compliance and necessary action as per Rules. Digitally signed SACHIN by SACHIN JAIN JAIN Date: 2022.05.17 16:58:17 +0530 Pronounced in the open Court (Sachin Jain) on 13.05.2022 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi Page No. 50/50