Delhi District Court
Mca No.01/13 vs Sh. Sureder Kumar Chaddha on 19 April, 2014
1
IN THE COURT OF SH. SANJEEV AGGARWAL ADJ03
(NorthWest) ROHINI COURTS DELHI
MCA No.01/13
Sh.Shakurpur Jatav Samaj Kalyan Samiti
(Through its Vice President),
WZ101, Shakur Pur Village,
Delhi110034 ......APPELLANT
Versus
1. Sh. Sureder Kumar Chaddha
Shakti Timber, Yadav Market,
WZ333, Shakur Pur Village,
Delhi110034
2. Sh. Ravi Anand
S/o Late Sh. Ayodhya Nath Anand
Shakti Timber Store, Yadav Market,
WZ333, Shakur Pur Village,
Delhi110034
3. Brij Mohan Anand
S/o Late Sh. Ayodha Nath Anand
Shakti Timber Store, Yadav Market,
WZ333, Shakur Pur Village,
Delhi110034 ........RESPONDENTS
O R D E R
1. Vide this order I shall dispose off the present appeal filed by the appellant against the impugned order dated 07.06.13, whereby application of the appellant U/o 39 Rule 1 & 2 CPC was dismissed by Ld. Trial Court(parties are hereinafter being referred to by their respective status before the trial court)
2. Brief facts which can be culled out from the impugned order of MCA NO. 01/13 Shakurpur Jatav Samiti Vs. Surinder Kumar 2 the Trial Court are as under:
Vide this order, I shall dispose off the application u/o XXXIX rule 1 & 2 CPC accompanying the plaint.
The case set forth by the plaintiff is that plaintiff body was a registered society comprising of members belonging to Harizan Community/Scheduled Castes. The society was registered under Societies Registration Act, XXI of 1860 vide registration no. S/44974 of 2003. Prior to the present society another society existed with the name Harizan Sudhar Samiti Society (Regd.) which stand dissolved since ling. The present society/plaintiff had came into being in the year 2003. The basic objective of the plaintiff society was to represent the cause and interests of all the members and residents belinging to Harizan Communities of Shakur Pur Village which call under the larger body called Harizanan Gram Sabha. There existed the suit property bearing no. WZ333, part of Khasra no. 30/4/11, MCA NO. 01/13 Shakurpur Jatav Samiti Vs. Surinder Kumar 3 measuring about 500 sq. yards at Yadav Market, Shakur Pur Village ( in laal dora), Delhi34 which was allotted to the Harizanan Gram Sabha. Copy of the Khatoni received from APIO/SDM (SV) vide reply dated 24.01.13 issued in response to RTI Application dated 13.12.2012 was also relied upon by the plaintiff. Defendants had trespassed in the suit property and had erected three storied building on the major part of the suit property except a vacant land measuring about 136 sq yards left for Harizanan Gram Sabha represented by the plaintiff society. The defendants had an evil eye over this vacant piece of land adjoining the building and had started constructing the vacant portion. In this regard, plaintiff body had unanimously authorized Sh. Jai Pal Singh, Vice President of the Samiti to contest the present matter. The cant piece of land measuring about 136 sq yards as shown in blue colour in the site plan was in the possession of the plaintiff Samiti until 29.03.2013 which now has been MCA NO. 01/13 Shakurpur Jatav Samiti Vs. Surinder Kumar 4 trespassed. Defendants had no right, title or interest in the suit property where business by the name and style of 'Shakti Timber' and 'Shakti Timer Stores' is being run. A complaint was also lodged in this regard in PS Subhash Place. The relief of declaration was sought that the plaintiff society, as per the copy of Khatoni received from SDM(SV), be declared a lawful and actual owner of the suit property, by way of mandatory injunction that the defendants be directed to vacate the suit property and by way of perpetual of injunction that the defendants be restrained from illegally and forcibly raising pillars over the suit property of 136 sq yards.
A common written statement was filed on behalf of the defendants.
Preliminary objections were taken that the suit was not maintainable in view of section 34 of The Specific Relief Act; suit was barred under section 41(h) of The Specific Relief Act; suit of the plaintiff is hit by section 41(j) of the Specific Relief MCA NO. 01/13 Shakurpur Jatav Samiti Vs. Surinder Kumar 5 Act as the plaintiff was a complete stranger to the suit property and was never in possession of any portion thereof. The plaintiff had no concern or connection either with Harizan Sudhar Samiti or with harizan Gram Sabha. Plaintiffs locus standi was challenged. The suit has not been properly valued for the purposes of court fees and jurisdiction as the value of the suit property is more than Rs. 5 crores besides that the plaintiff has filed the suit to harass the defendants and to extort money. On merits, it was stated that Smt. Gulshan Chadha and defendant no.3 had jointly purchased the suit property measuring 390 sq yards from its previous owner Sh. Raj Singh by virtue of the duly registered GPA. The said plot was allotted to Harizan Gram Sabha in the year 1954.
Later on, a SPA was executed by the office bearers of the Managing Committee of the said Gram Sabha favouring Sh. Kanhaiya Lal for paying off the debts of the said Gram Sabha whereupon Sh. Kanhaiya Lal being the 'Pradhaan' of Harijan Sudhar MCA NO. 01/13 Shakurpur Jatav Samiti Vs. Surinder Kumar 6 Samiti had sold the said plot to Sh. Raj Singh and Sh. Ram Kumar Malik vide registered documents. Sh. Ram Kumar Malik being the owner of one half undivided share sold the same to Raj Singh vide Deed of Agreement, affidavit, GPA, SPA dated 05.4.1980 duly attested by notary public on 08.4.1980. Sh. Ram Kumar Malik had also executed registered Will and registered receipt. Sh. Raj Singh became the actual owner.
Though Sh. Raj Singh sold the house of the property as mentioned earlier to Sh. Gulshan Chadha and defendant no.
3. Thus, Sh. Gulshan Chadha and defendant no.3 were in possession of the property for the last 33 years vide documents dated 20.6.1980. Their names were also incorporated in the 'fard' pertaining to the suit property. The suit property was constructed and was surrounded by houses on two sides. Sh.
Gulshan Chadha and defendant no.3 had executed two separate registered sale deeds on 04.10.02 and 11.10.02 in favour MCA NO. 01/13 Shakurpur Jatav Samiti Vs. Surinder Kumar 7 of each other qua 180 sq yards each out of 195 sq yards while remaining 15 sq yards was continued to be joint. It was also alleged that the suit was barred by limitation in as much as a declaratory suit should have been filed within 3 years.
Lastly, it was alleged that the suit was barred by principles of resjudicata in as much as earlier also a suit for possession was filed by Harijan Sudhar Samiti against Sh. Pritam Dass, Sh. Kanhaiya Lal and Sh. Raj Singh vide civil suit no. P.4/198, wherein Sh. Raj Singh had appeared and filed written statement. The said suit was dismissed by Sh. J.K. Pali, SubJudge, I class vide order dated 29.9.1982.
Therefore, the suit is barred by principle of resjudicata.
Detailed order dated 17.4.2013 was passed in this case. Interim application of the plaintiff was considered. During the course of submissions it was transpired that the case of the plaintiff was with regard to 500 sq yards whereas defendant claimed that the area in their MCA NO. 01/13 Shakurpur Jatav Samiti Vs. Surinder Kumar 8 possession is of 390 sq yards. Thereafter, Local Commissioner was appointed to visit the suit property and carry out spot inspection to ascertain as to whether the plot is of 500 sq yards or of 390 sq yards.
In terms thereof, Local Commissioner Sh. Vikas Gogne, Advocate had visited the suit property and carried out spot inspection report. He had also prepared a rough site plant.
3. Vide detailed order dated 07.06.11, application of the plaintiff U/o 39 Rule 1 & 2 CPC was dismissed. The plaintiff has challenged the said order on following grounds:
(a) That the Ld. Trial Court has grossly erred in not appreciating the most vital fact that the suit property situated in Lal Dora Village Shakarpur belongs to Harizan Gram Sabha Shakarpur, Delhi which was previously represented by Harizan Sudhar Samiti Society, (Regd.), and now by the present Samiti named as Shakurpur Jatav Samaj Kalyan Samiti(Regd). It is stated that present Samiti has stepped into the shoes of former Samiti.
(b) That the Ld. Trial Court has also ignored to appreciate the MCA NO. 01/13 Shakurpur Jatav Samiti Vs. Surinder Kumar 9 vital fact that the defendants in their written statement have themselves admitted that the suit property was allotted to the Harizan Gram Sabha in the year 1954.
(c) That the Ld. Trial Court has also ignored the copy of khatoni annexed with the plaint which the plaintiff had received the same through RTI reply from the office of SDM, Saraswati Vihar.
(d) The Ld. Trial Court has also failed to appreciate that as per the office order dated 12.12.2007 of Government of NCT of Delhi the suit property is a government land. Therefore nobody has the right to enter sell or purchase the same, hence the alleged transfer of suit property by the deceased president of the previous society is totally unlawful and is based upon forged and fabricated documents.
(e) It is further stated that the previous society representing the Harizan Gram Sabha was only a licensee and not the absolute owner of the suit property and therefore it had no authority or competence to enter into the sale transaction of the suit property which fact has been totally ignored by Ld. Trial Court.
(f) It is also stated that the defendants are guilty of having unlawful and unauthorized possession of the suit property on MCA NO. 01/13 Shakurpur Jatav Samiti Vs. Surinder Kumar 10 the basis of forged documents procured in connivance with the previous deceased President of previous society and the government land could not have been transferred by said person as has been claimed by the defendants in their written statement.
(g)Ld. Trial court has also failed to appreciate that the case of the defendants was not the case of adverse possession and they are claiming right, title or interest on the basis of false and fabricated documents and therefore there is a strong prima facie case in favour of the plaintiff and grant of interim injunction is made out which has not been done by the Ld. Trial Court. Therefore it is stated that the order dated 07.06.13 is liable to be set aside.
4. I have heard Ld. Counsel for the appellant/plaintiff Dr. K.C.Rakesh and Ld. Counsel for the respondent/defendant Sh. R.K.Gupta and perused the record.
5. Plaintiff no doubt has placed on the record one copy of Khatoni which they had received in reply to their RTI query, which they submitted before SDM Sarawati Vihar, whereby the suit property bearing khasra no. 30/4/11 situated in the village Shakurpur has been shown to be allotted to Harijan Gram MCA NO. 01/13 Shakurpur Jatav Samiti Vs. Surinder Kumar 11 Sabha, which khatoni is of the year 200910. Plaintiff claims that they have stepped into the shoes of Harizan Gram Sabha to whom the original land was allotted and now they have got another society registered by the name of Shakurpur Jatav Samaj Kalyan Samiti which is in continuation of Harizan Gram Sabha to whom the land in question was allotted, therefore they have stepped into the shoes of Harizan Gram Sabha. It is the contention of the plaintiff that defendants have illegally occupied the suit property on the basis of forged and fabricated documents, as the suit land being the government land could not have been sold or purchased by anyone.
6. On the other hand, it is the contention of the defendants that they are in possession of the suit property for the last 30 years continuously and uninterruptedly, as they had purchased the suit property through sale of documents starting from one Sh. Kanhaiya Lal who was authorized by the management committee of the Gram Sabha, namely, Harijan Registered Gram Sabha authorizing him to sell the suit land measuring 390 Sq. Yds, out of Khasra No. 30/4/11 bearing No. WZ333, situated in Lal Dora of Village Shakapur for paying off the debts of the said Gram Sabha Society. Thereafter on the basis MCA NO. 01/13 Shakurpur Jatav Samiti Vs. Surinder Kumar 12 of the said SPA he sold the suit land to one Sh. Raj Singh and Sh. Ram Kumar Malik vide registered GPA registered on 07.02.1975.
7. Thereafter Sh. Ram Kumar Malik became the owner of one half undivided share of the suit property sold the same to Sh. Raj Singh by virtue of agreement to sell, affidavit, GPA, SPA all dated 05.04.80 duly attested by notary public and he also executed a will on 05.04.80 which was duly registered and thereafter Sh. Raj Singh became the absolute owner of the said property and he sold one half undivided share in the same to defendant no. 3 by deed of agreement, affidavit, SPA and GPA all dated 20.06.1980 and he also executed a will dated 18.06.1980 and he similarly also sold his remaining undivided half share in favour of Sh. Gulshan Chadha by virtue of some documents mentioned above including registered will.
8. Therefore it is stated that defendant no. 3 and Sh. Gulshan Chadha became the joint owners of the suit property and are in possession of the same since the date of its purchase for the last 33 years i.e from the date of purchase 1980 which is also reflected in number of documents i.e house tax receipts, registration and Shops & Establishment Act, electricity bills MCA NO. 01/13 Shakurpur Jatav Samiti Vs. Surinder Kumar 13 and sewer connection. It is stated that same is also reflected in khasra girdawari of the relevant year.
9. It is also stated that the present suit is barred by the principle of resjudicata as earlier one suit for possession was filed by Harijan Sudhar Samiti(Regd) against Sh. Pritam Dass, Sh Kanhaiya Lal and Sh Raj Singh bearing civil suit No. P.4/1981, wherein Sh Raj Singh appeared and filed his written statement wherein he admitted that the office bearers of the said Harijan Sudhar Samiti had authorized him to dispose off the said land. However, the said suit was dismissed vide order dated 29.09.1982 and the said order remained unchallenged and thus attained finality. Therefore it is stated that application of the plaintiff is liable to be dismissed.
10.I have gone through the rival contentions. One Local Commissioner was also appointed in the present case, who has stated in his report that the measurement of the suit property was in consonance with the measurement mentioned in the written statement by the defendants, No objection to the same has been filed by the plaintiff. The plaintiff in the present case has relied upon one Khatoni which was issued to them by the office of SDM Saraswati Vihar as per which the suit MCA NO. 01/13 Shakurpur Jatav Samiti Vs. Surinder Kumar 14 property was measuring 500 Sq. Yds and had been allotted to Harijan Gram Sabha. It is also admitted by the defendants it was so. However, it is the contention of the defendants that the same was authorized by the office bearers of Harijan Sudhar Samiti society(Regd) who had authorized one Kanhaiya Lal to sell out the same in order to pay off the debts of the said Sudhar Samiti and thereafter he sold the same to Sh. Raj Singh and Sh. Ram Kumar Malik jointly. Sh. Ram Kumar Malik sold his one half share measuring 390 Sq. Yds to Sh. Raj Singh, who became the absolute owner of the suit property, thereafter Sh. Raj Singh sold one half portion of the same measuring 195 Sq. Yds to defendant no. 3 and one half share to Smt. Gulshan Chadha and both of them are in joint possession of the same and they have also filed Khatoni with regard to the suit property.
11.They have also filed number of documents including house tax record and the registration with the Delhi Shop Establishment Act of the year 1982 and one Khasra Godawari for the year 198889, which shows that the suit property was mutuated in the name of defendant no. 3 and Smt. Brij Mohan Anand and also telephone bills to show that prima facie they are in MCA NO. 01/13 Shakurpur Jatav Samiti Vs. Surinder Kumar 15 continuous possession of the suit property for a long time. The plaintiffs in the present case has failed to file any document to show how they stepped into the shoes of Harijan Suhar Samiti(Regd.), Sharkurpur, as the registration certificate of the plaintiff society is of the year 2003 having being registered with the Registrar of Societies in the said year.
12.It is not clear in these circumstances, as to what is the nexus between Harijan Gram Sabha(Regd) and plaintiff who has filed the present suit prima facie. The plaintiff has also not disputed that earlier suit bearing P4/31 was filed by Harijan Sudhar Samiti(Regd) through its President Sh. Ram Kumar against Sh. Pritam Dass, Sh Kanhaiya Lal and Sh Raj Singh, which suit was rejected, as it was found to be beyond the pecuniary jurisdiction vide order dated 29.09.82. It is not clear as to what happened to the fate of said suit thereafter whether it was continued by presenting the same before proper forum, if it was not so whether any permission of the court was taken for not continuing with the said suit. Even otherwise, the plaintiff society has filed the present suit only for declaration and mandatory injunction. It has been rightly observed by Ld.Trial Court that the earlier suit was for possession and in the MCA NO. 01/13 Shakurpur Jatav Samiti Vs. Surinder Kumar 16 present suit the relief of possession has not been claimed. Prima facie suit for mandatory injunction alongwith declaration to declare that the plaintiffs are the owners of the suit property with the directions directing the defendant to vacate the suit property is not maintainable. Therefore prima facie suit for possession should have filed claiming the relief of possession as well in the suit property.
13. Counsel for plaintiff has relied upon following judgments
1. 1976 RLR 550
2. 1973 RLR 542
14.The proposition of law laid down in the said judgments is not in dispute. However, in my respectful view said judgments are not applicable to the peculiar circumstances of the present case in view of the above discussion. The Ld. Trial court has not prejudged the case of the plaintiff by dismissing the application of the plaintiff. It has been rightly held that there is no prima facie case in favour of the plaintiff in the facts and circumstances of the present case. Consequently, the order under challenge has been rightly passed giving cogent reasons in support of the same. As a resultant, present appeal MCA NO. 01/13 Shakurpur Jatav Samiti Vs. Surinder Kumar 17 has no merits. Same stands dismissed with no order as to costs. Needless to say nothing expressed herein above shall have any bearing on the merits of the case during the trial.
15. TCR alongwith the copy of order be sent back to the Ld. Trial Court.
16.Appeal file be consigned to Record Room. ANNOUNCED IN THE OPEN (Sanjeev Aggarwal) COURT ON 19.04.2014 ADJ(N/w) Rohini Courts Delhi/19.04.2014 MCA NO. 01/13 Shakurpur Jatav Samiti Vs. Surinder Kumar