Delhi District Court
Sh. Pawan Kumar Mundey vs Ms. Neerja D/O Sh. Amar Nath on 24 August, 2022
IN THE COURT OF SH. MAYANK MITTAL, ACJ/CCJ/ARC (EAST)
KARKARDOOMA COURTS, DELHI
CS No.: 8280/2016
(old No. 304/2009
Date of Institution: 18.08.2009
Date of decision :24.08.2022
Sh. Pawan Kumar Mundey
S/o Sh. Bhagwat Prasad Mundey
R/o 17B, First Floor, Gali No. 12
Shankar Nagar, Delhi110051 .....Plaintiff
Versus
1 Ms. Neerja D/o Sh. Amar Nath
R/o H. No. 116, Gali No. 4
Shankar Nagar
Near Shiv Mandir
Delhi110051
2 Sh. Sushil Sharma
Addl. SHO
PS, Krishna Nagar, Delhi
3 Sh. Ram Singh
Sub Inspector
PS, Krishna Nagar ..... Defendants
Suit for Specific Performance Act
JUDGMENT
CS No. 8280/2016 1
1 Vide this judgment, I shall dispose off the suit filed by the plaintiff U/s 6 of Specific Performance Act for passing a decree of specific performance in favour of the plaintiff and against the defendants. 2 For better appreciation, the brief facts of the eviction petition as alleged by the parties in their respective pleadings are summarized as follows:
(i) That on 26.01.2006 the plaintiff was inducted tenant in respect of the suit property, i.e. entire first floor consisting of one shop and one room, verandah, bathroom and latrine as well as one shop on the ground floor forming part of property No. 17B, Gali No. 12, Shankar Nagar Extension, Delhi 51 under one Sh. Vimal Seth at monthly rent of Rs.700/ excluding electricity and water. At the time of creation of tenancy Rs. 5,00,000/ was paid towards security to the landlord Sh.
Vimal Seth. The said landlord died in the month of January, 2008. The plaintiff had paid the rent to his aforesaid landlord till 31.12.2007 and after death of Sh. Vimal Seth, none of his LRs turned up to collect the rent from him.
(ii) That on 21.02.2009 at around 10.30AM, defendant no. 1 alogwith some gunda elements came to the tenanted shop of the plaintiff and tried to take possession of the shop illegally by breaking open the locks of the shop. The matter was reported to the police by the plaintiff against the defendant no. 1 but no action was taken by the police against defendant no.1.
(iii) That on 25.2.2009 at around 3.30PM defendant no. 3 called the plaintiff in PS Krishna Nagar for inquiry in respect of the incident CS No. 8280/2016 2 dated 21.2.2009 and when the plaintiff reached at PS, defendant no. 1 was already present there. At that time, defendant no. 2 & 3 took away the copy of agreement in respect of the tenanted premises from the plaintiff. The plaintiff was also beaten by the defendants No. 2 & 3 in the PS and they also threatened to vacate the aforesaid shop and to handover the possession of the shop in question to defendant no. 1.
(iv) That on 7.3.2009, FIR No. 98/2009 u/s 448 IPC was registered against him on the false complaint of defendant no.1, though the plaintiff was in possession of the property in question.
(v) That on 8.3.2009 at about 1.00 PM, defendant no. 1 alongwith defendants no. 2 and 3 came to the shop of the plaintiff and they broke open the locks of the shop in question, committed theft of the articles lying in the shop ( details given in para 10 of the plaint) and dispossessed the plaintiff from the shop in question illegally.
(vi) That on 18.03.2009 the plaintiff filed a suit for permanent injunction which was pending before the Court of Ld. ACJ. Thereafter, on 30.4.2009, defendants no. 2 and 3 called the plaintiff in police station and booked the plaintiff under section 107/151 CrPC. The plaintiff has also filed a complaint u/s 200 CrPC which is pending in the court of Ld. MM concerned. Defendant no. 1 in connivance with defendants no. 2 & 3 has illegally dispossessed the plaintiff from the tenanted shop in question. Hence, the present suit.
3 On receipt of the summons, the defendants appeared in the Court and filed their WS.
4 In the WS filed by the Defendant No. 1, defendant no. 1 has CS No. 8280/2016 3 claimed that she is the registered and rightful owner of the suit property and is in absolute physical possession of the suit property and the averments made by the plaintiff in the plaint have been denied in toto being false, wrong and baseless. It is averred by the defendant no. 1 that there is no relationship of landlord and tenant between her and the plaintiff. The plaintiff is not in the possession of the shop in question and he has no right, title or interest qua the property in question. So far as the suit bearing No. 161/2009 filed by the plaintiff herein against the defendant no. 1 herein, it is submitted by the defendant no. 1 that since the plaintiff was not in possession of the suit property, no relief was granted to the plaintiff by the Court. Other contentions of the plaintiff regarding illegal dispossession of the plaintiff from the shop in question have been vehemently denied by the defendant no. 1 in its entirety. Registration of FIR No. 98/2009 u/S 448 CrPC against the plaintiff is not disputed by the defendant. It is submitted by defendant that it is the plaintiff himself who has tried to take forcible possession of the shop in question. It is further submitted that plaintiff has filed civil suit and criminal complaint under section 200 CrPC just to create false evidence/grounds against the defendant no. 1. The defendant No. 1 was already in possession of the shop in question and suit of the plaintiff is liable to be dismissed with heavy cost.
5 Defendants No. 2 and 3 (police officials of PS Krishna Nagar) have also filed their common written statement denying the averments of the plaintiff and reiterating the facts disclosed by defendant no. 1 in her WS. The allegations/averments made by the plaintiff qua the CS No. 8280/2016 4 defendants no. 2 and 3 in the plaint, have been vehemently and categorically denied by the defendants No. 2 and 3. It is further submitted that no cause of action has arisen in favour of the plaintiff at any point of time to file the present suit and suit filed by the plaintiff deserved dismissal with heavy cost.
6 The plaintiff has also filed a replication to the WS of the defendants reaffirming his averments made in the suit. 7 On completion of pleadings of both parties, following issues were framed;
(i) Whether there is no cause of action in filing the present suit?
OPD
(ii) Whether the plaintiff was never in possession of the suit property?
OPD
(iii) Whether the plaintiff is entitled to relief as per section 6 of Specific Relief Act, as prayed for? OPP
(iv) Relief.
8 During plaintiff's evidence, PW1 Sh. Pawan Kumar Mundey has tendered his evidence by way of affidavit Ex. PW1/A. He has relied on the documents Ex. PW1/1 to PW1/8. Certified copy of complaint case pending in the court of Sh. Sanjeev Kumar, Ld. MM, KKD Courts, Delhi in complaint case No. 63/10, titled as Pawan Kumar Mundey v. Neerja & Ors Ex. PW1/9 (colly). It is stated that the documents mentioned as Ex. PW1/10 and PW1/11 in his affidavit arae not being relied upon him as the same are covered in Ex. PW1/9 (colly).
9 DW1 Ms. Neerja has tendered her evidence by way of CS No. 8280/2016 5 affidavit Ex. DW1/A. She has relied upon documents Mark A to Mark R. No document was exhibited in examination in chief of DW1. 10 DW2 Sushil Sharma has also tendered his evidence by way of affidavit Ex. DW2/A. Issue wise findings
i) Whether there is no cause of action in filing the present suit?
OPD
(ii) Whether the plaintiff was never in possession of the suit property?
OPD
(iii) Whether the plaintiff is entitled to relief as per section 6 of Specific Relief Act, as prayed for? OPP 11 In the present matter, all three issues framed by Ld. Predecessor of this Court are connected and interrelated to each other. Accordingly, all these issues are taken together. The burden of proving issue no. 3 was on the plaintiff and burden of proving issue no. 1 and 2 is on the defendant.
12 Plaintiff has examined himself as PW1. In his affidavit of examination in chief PW1 has deposed on the lines of the plaint. During his examination in chief PW1 has stated that documents mentioned as Ex. PW1/10 and PW1/11 in his affidavit are not being relied upon by him as the same is covered in Ex PW1/9 (colly). In his cross examination PW1 had admitted is to be correct that prior to the present suit he had filed a suit for permanent injunction. PW1 had admitted is to be correct that in para no. 17 of earlier suit no. 161/09 he had mentioned that "the plaintiff is absolute owner of said shop". PW1 has stated that CS No. 8280/2016 6 he had never claimed ownership of the shop as he is tenant in the shop and therefore he has no document of ownership. Pw1 has stated that shop is at the ground floor. PW1 has admitted is to be correct that he had mentioned in para 1 of Ex PW1/D1 "that the plaintiff was inducted as tenant in respect of entire first floor consisting of one shop and one room, varandeh, bathroom and laterine under one Sh. Vimal Seth at the montly rent of Rs. 700/ excluding electricity and water charges from 26.01.2006 by giving security amount of Rs 5 Lakhs at the time of execution of tenancy". PW1 has stated that written complaint by him to SHO Ex PW 1/D2 was got written by him under the pressure of police officials in police station. PW1 has stated that he had given complaint to senior officials regarding forcibly getting the complaint written Ex PW1/D2 and the same was sent through registry but he does not remember the date of registry. PW1 has stated that he does not know the same was filed on record or not. PW1 has stated that he does not have any proof of tenancy of the said shop as the documents were taken by the police on the day when the locks were broken. PW1 had admitted is to be correct that prior to that date, he had filed an application for anticipatory bail before Ld. Sessions Judge, KKD Courts and he had not placed on record the documents of tenancy alongwith his anticipatory bail application nor he had sent the copy of documents of tenancy alongwith complaint sent to several police officials. PW1 has stated that he has no electricity and water connection in his name in the shop but it is in the name of owner namely Vimal Seth and Nisar Ahmed. PW1 has stated that on the day of incident when locks of his shop was broken the document and other CS No. 8280/2016 7 articles were lying in the shop and those were taken by police officials. PW1 has stated that he has filed suit Ex. PW1/D1 after dispossession of the suit property and he had not mentioned in the suit Ex PW1/D1 that documents regarding tenancy is in his possession. PW1 has admitted is to be correct that he had mentioned in Ex PW1/D1 at page no. 5 para no. 8 that "it is also submitted when the plaintiff has shown the photocopies of documents i.e agreement in respect of above said shop and the first portion, which is still in possession of the plaintiff". PW1 has admitted is to be correct that he had not filed any document to show that he had given Rs 5 Lakhs to Sh. Vimal Seth towards security. PW1 has further admitted is to be correct that he had not filed any rent agreement or rent receipt so as to prove that he was tenant under the tenancy of Sh. Vimal Seth. PW1 has deny the suggestion that he had not filed the same as he was not the tenant of Sh. Vimal Seth at any point of time and that he had not given any amount of Rs 5 Lakhs to Vimal Seth towards security at any point of time. PW1 has further deny the suggestion that Vimal Seth is a factious person or that he is not having any concern with the premises in question. PW1 has admitted is to be correct that he had not filed any document so as to proof that Vimal Seth has expired in January, 2008. PW1 has admitted is to be correct that he had not filed any rent receipt so as to prove that he had lastly paid rent 31.12.2007 to Vimal Seth. PW 1 has stated that the name of landlord is Vimal Sethi. PW1 has admitted is to be correct that he had not filed any documents to show that he was running a general store as well as doing the work of cable network in the premises in question. PW1 has denied the suggestion that he had not CS No. 8280/2016 8 filed the same as he had never worked in the shop in question. PW1 has stated that on 25.02.2009, in the afternoon though exact time is not known, the defendant no. 3 came at his residence and asked him to come to PS Krishna Nagar as SHO has called him for the purposes of some investigation. PW1 has stated that defendant no. 3 remained at his house and took him to PS Krishna Nagar after around 24 minutes of his arrival. With regard to complaint dated 25.02.2009 is Mark DA, PW1 has stated that defendants had taken his forcible signature in the police station on the plain paper and the contents of the same are not in his handwriting. PW1 had admitted is to be correct that FIR No. 98/09 u/s 448 IPC PS Krishna Nagar was registered against him upon the complaint of defendant no.1 on 21.02.2009 however, he has denied the suggestion that the same was registered against him as he had trespass in the shop property bearing no. 17B, Gali no. 12, Shankar Nagar, Delhi110051. PW1 has stated that he is having voter Id card and Aadhar Card in his name qua the address mentioned in the memo of parties and his wife is having Aadhar Card and gas connection qua the suit premises. PW1 has admitted is to be correct that he had not filed any document ie. voter card, Aadhar Card and gas connection in the court file till the date of his cross examination. PW1 has stated that during his stay at the address given in memo of parties he was having familiar terms with the neighbour and during the cross of investigation, he has taken one of his neighbour namely Sachin Sharma (who resides at the top floor of the property no. 17B) to enquiry officer. PW1 has deny the suggestion that Sachin Sharma had never resided at the top floor of property bearing no. 17B CS No. 8280/2016 9 and Sachin Sharma is a factious person. PW1 has deny the suggestion after thorough investigation, his complaints were found bogous and the same was closed later on by defendant no. 3. PW1 has deny the suggestion that he was/is in possession of any part of property no. 17B at any point of time. PW1 has stated that general material such as cable wire, bundles were lying in the said shop and some utensils are also there. PW1 has stated that he was the employee of classical cable network and the name of the employer is Sh. Virender Gaur. PW1 has stated that his salary was Rs. 14,000/ 15,000/ at point of time and the same was directly credited in his account by his employer. 13 Defendant no. 1 has examined herself as DW1 and in her affidavit of examination in chief, she has deposed on the same lines as her WS. However after tendering her affidavit in her examination in chief Ex DW1/A, DW1 Ms. Neerja had never turned up before the court for her crossexamination. In view of the same, the evidence of DW1 Neerja cannot be read.
14 DW2 Sushil Sharma has also tendered his affidavit in his examination in chief as Ex DW2/A however he had also not turned up for his crossexamination. In view of the same, the evidence of DW2 Neerja cannot be read.
15 DW3 Ram Singh has filed and tendered his affdiavit of examination in chief Ex DW3/A and has not relied any of documents during his examination. In his crossexamination, DW3 has stated that on 21.02.2009 on receiving DD no. 45B the dispute between the plaintiff and the defendant no.1 had come in his knowledge and he alongwith one CS No. 8280/2016 10 Ct. reached at the spot. DW3 has stated that there defendant no.1 told him that she had purchased the property in question on 09.01.2009 from Mr. Naveen Kumar and previous owner of the shop had handed over the keys of shop to him and she has also told that she had put her locks over the same and further that she is having all the title documents of the shop in question. DW3 has deny the suggestion that the shop in question was in possession of plaintiff and locks wer e also put by him. DW3 has stated that he had asked the plaintiff and defendant no. 1 to come PS on 22.02.2009 in the office of SHO and to bring the ownership documents. DW3 has deny the suggestion that after receiving of summons of earlier civil suit filed by the plaintiff, he had vacated the shop in question from the plaintiff. DW3 has deny the suggestion that after receiving of summons of the court, he had vacated the shop in question from the plaintiff on the basis of complaint dated 21.02.2009 lodged by defendant no.1. DW3 has stated that plaintiff has also lodged a complaint against defendant no.1 but he does not remember today the date of filing the complaint. DW3 has admitted is to be correct that he had stated in para no. 5 of his affidavit Ex DW3/A that plaintiff was never in possession of the suit property. On being confronted by Ex PW1/6, DW3 has stated that he got the shop vacated on the directions of SHO, Krishna Nagar. DW3 has admitted is to to correct that FIR no. 98/09 u/s 448 IPC was registered against the plaintiff after approval of ACP and DCP (East). DW3 has stated that he alongwith SI R B Singh, Inspector Sanjeev Kumar Gautam and two Ct. whose names I do not remember and four Constables and one lady Head Ct. reached on the shop in question on CS No. 8280/2016 11 08.03.2010.
16 I have already heard the arguments of counsel for both the parties in detail and have also gone through the written submissions filed by them after conclusion of their respective arguments. 17 The counsel for plaintiff had vehemently submitted during arguments that the plaintiff has to prove his possession at the relevant point of time and the possession of plaintiff at the relevant point of time could be verified from the fact that FIR NO. 98/2009 PS Krishna Nagar under section 448 IPC which was registered against the plaintiff by the defendants in connivance with each other itself mentions that:
"on 21.2.2009 when the defendant no. 1 had reached to the shop in question, then she could not open the locks from the said keys and had felt that some other person had removed her locks and placed his own locks. That on 10.30 AM one person namely Pawan Kumar S/o sh Bhagwat Prasad came from inside and has stated that he had taken the shop in his possession and he has no document of the shop nor he will give the shop to her".
The counsel for plaintiff had vehemently relied on this portion of FIR No. 98/2009 to assert his point that on the date of registration of FIR No. 98/2009, i.e. 21.2.2009, the plaintiff was in possession of the shop in CS No. 8280/2016 12 question. The counsel has further relied on a document which is a certified copy of record of earlier civil suit filed by the plaintiff against the defendants, whereby it is mentioned on a form of Delhi Police Control Room dated 8.3.2009 that "reaching time 8 minutes court order sai shop khali kara di hai.
The counsel for the plaintiff has stated that there was no order of Court in compliance of which the shop in question was got vacated by the defendants, from which it can be inferred that plaintiff was dispossessed by defendants illegally and accordingly plaintiff is entitled to a relief under section 6 of Specific Relief Act.
18 At this juncture it is important to point out the provisions of section 6 of Specific RelieF Act, 1963.
6. Suit by person dispossessed of immovable property. (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
(2) No suit under this section shall be brought
(a) after expiry of six months from the date of dispossession; or
(b) against the Government.
CS No. 8280/2016 13(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
(4) Nothing in this section shall bar any person fro suing to establish his title to such property and to recover possession thereof. 19 In this regard it is important to point of that by way of various judgments, Hon'ble Higher Courts have explained that possession for the purposes of section 6 of Specific Relief Act has to be a settled possession. It is explained that even a trespasser is entitled to benefit of section 6 of Specific Relief Act, if trespasser is also is in settled possession of the property. In this regard, guidance can be sought from these decisions.
(1) Sh. Deep Chand v. Sh. Kulanand Lakhera & Ors, 140 (2007) DLT 765, DHC.
(55.) In the report published as 1 (2004) SLT 675, Rame Gowda v. M. Varadappa Naidu, recognizing the right of a owner who has been wrongly dispossession of property to regain possession, if he can do so, peacefully and without the use of unreasonable force, only limitation placed was when the trespasser acquires effective possession or settled possession. In para 11 of the report it was observed that the sine qua non for settled possession or effective possession of a CS No. 8280/2016 14 trespasser was when the same extended over a sufficiently long period of time and acquired to by the true owner. In relation to the concept of settled possession developed by various judicial pronouncements, noting the same in para 11 of the report, it was observed that the phrase "settled possession" does not carrying any special charm or magic, nor it is a ritualistic formula which can be confined in a straight jacket. However, following tests which could be adopted as working rules were evolved:
(1) That the trespasser must be in actual physical possession of the property over a sufficiently long period;
(2) That the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contain an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
(3) The process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true CS No. 8280/2016 15 owner; and (4) That one of the usual tests to determine the equality of settled possession, in the case of cultivable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.
20 In paragraphs 17 and 18 in Roop Lalwani & Ors v. Sunita Lalwani & Ors, ( CM Appl. 1586/13 and 1685/13) , our own Hon'ble Delhi High Court has again observed:
17. As to what is "settled possession" was explained in East India (supra), where the Supreme Court took note of several previous decisions. This included Puran Singh (Supra) relied on by the plaintiffs. The court held that when the plaintiff, a bank, handed over the possession under somewhat compelling circumstances, but voluntarily, nevertheless--
its status as a licensee was lost and it could not claim possession under Section 6:
"38.................The rightful owner may re enter and reinstate himself provided he does not use ore force than he was necessary. Such entry will be viewed as a resistance to an CS No. 8280/2016 16 intrusion upon possession which has never been lost. The person in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, through not in actual possession at the time, to remove the obstruction even by using necessary force". In Puran Singh v. State of Punjab (1975) SCR 299, while following the ratio in Munshi Ram's case, this LPA 588/2009 Page 11 Court held that it is difficult to lay clown any hard and fast rule as to when the possession of a trespasser can mature into settled possession. But what this Court really meant was that the possession of a trespasser must be effective, undisturbed and to the knowledge of the owner or without any attempt at concealment. There is no special charm or magic in the words "settled possession" nor is it a ritualistic formula which can be confined in a straight jacket but it has been used to mean such clear and effective possession of a person, even if he is a trespasser, who gets the right under the criminal law to defend his property against attack even by the true owner. It would CS No. 8280/2016 17 be reiterated that the possession must be within the knowledge either express or implied, of the owner or without any attempt at concealment and which contains an element of animus possedentic. In that case possession for 14 days was held to be settled possession since they raised the crops in the land. This view was reiterated again in Ram Ratan v. State of UP (1977) 2 SCR 2323, laying therein that the true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner.
In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law.
39. This court thus firmly laid the rule that stray or intermittent acts of possession does not constitute settled possession. A person in settled possession is entitled to resist the attempt of even the owner or persons claiming under him to dispossess the trespasser. The only LPA 588/2009 Page 12 exception was that CS No. 8280/2016 18 a recent or concealed possession does not enable a trespasser to defend his possession."
18. The decisions from Puran Singh (Supra) onwards, including East India (Supra ) and Rame Gowda (Supra) were rendered in the context of claims by parties whose actual physical possession was disrupted, leading to actions under Section 6.. Whilst on the subject, it would be interesting to notice that "possession" was the subject matter of another decision, Gurcharan Singh v. Kamla Singh and Ors, (1976) 1 SCR 739 where the Supreme Court held that:
"There are, therefore, three requisites of possession. First, there must be actual or potential physical control,. Secondly, physical control is not possession, unless accompanied by intention; hence, if a thing is put into the hand of a sleeping person, he has no possession of it. Thirdly, the possible and intention must be visible or evidence (sic) by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed. In the end of all, however, the meaning of 'possession' must depend on the CS No. 8280/2016 19 control (ibid p. 153). May be, in certain situations, possession may cover right to possess. It is thus clear that in AngloAmerican jurisprudence also, possession is actual possession and in a limited set of cases, may include constructive possession, but when there is a bare right to possess benefit of an owner is in possession merely because he has a right to possess when a rival, in the teeth of owner's opposition, is actually holding dominion and control over the land adversely, openly and continuously."
21 In the present case, the case of the plaintiff is that he was in possession of first floor as well as one shop on the ground floor of the property bearing no. 17B, Gali No. 12, Shankar Nagar Extension, Delhi 51 as tenant and one Sh. Vimal Seth was his landlord and since the commencement of her tenancy, he was running shop of general store as well as doing the work of cable network from the ground floor shop under his tenancy. It is the case of plaintiff that after death of Sh. Vimal Seth, defendants had bad eye on the property of Vimal Seth. Surprisingly, plaintiff has not brought on record any document showing that he was tenant of Vimal Seth. Though Vimal Seth has allegedly expired, however, it was open for the plaintiff to call any family member/friend/agent/servant of late Sh. Vimal Seth or any other person of the locality in locality who could have given oral evidence regarding CS No. 8280/2016 20 creation of tenancy by late Sh. Vimal Seth in favour of plaintiff or payment of rent by plaintiff to Vimal Seth. But for reasons best known to the plaintiff, plaintiff has not examined any witness for the said purpose.
In his crossexamination plaintiff/PW1 has stated that he does not have any proof of tenancy as documents were taken by police when locks were broken. It is stated by PW1 that he had filed earlier suit Ex. PW1/D1 after dispossession from the suit property, however, he has also admitted in his crossexamination that he has mentioned in Ex. PW1/D1 that documents regarding tenancy is in his possession. The incident regarding breaking open the lock is prior in time to the filing of suit Ex. PW1/D1. From this, an inference can be drawn that when plaintiff has stated in his crossexamination in the present case that he does not have proof of tenancy as same was taken by police on the day when locks were broken either he was not replying truly or he had not filed plaint Ex. PW1/D1 based on true and correct facts.
Further, plaintiff has stated that he was running a general store and was doing business of cable network from the ground floor shop, however, he has neither placed before Court any document in the form of bill book of the shop or bills of goods purchased by him for his business or any statement of cable network which was being run from the tenanted shop. Further no photo of cine board of the alleged shop has been placed on record.
PW1/Plaintiff has stated in his crossexamination that he was employee of classic cable network and his employer was Sh. Virender Gaur and his salary was credited in his account by his employer. Though CS No. 8280/2016 21 being an employee is contradictory to the stand of the plaintiff in the plaint, however, even if it is presumed that plaintiff was working as employee of Classic Cable Network from the shop in question, it was necessary for plaintiff to examine Virender Gaur as witness and also to bring and prove his accounts statement showing receiving of salary for bringing clarity on the aspect of carrying on cable network business by the plaintiff from the alleged shop in question. However, for the reasons best known to the plaintiff, the plaintiff has not brought such evidence. The plaintiff/PW1 has himself stated in his crossexamination that in the shop in question he does not have water and electricity connection in his name. It is stated that water and electricity connection are in the name of owners namely Vimal Seth and Nisar Ahmad. It has not been explained who is Nisar Ahmad and at the same time water and electricity bill in the name of Vimal Seth and Nisar Ahmad have not been placed on record nor any witness from the concerned department have been summoned to bring the abovesaid record.
22 Surprisingly, the plaintiff has not mentioned any clear and specific date when the plaintiff was dispossessed from the suit property. Plaintiff has mentioned different incidents dated 21.2.2009, 11.11.2008, 25.02.2009, 8.3.2009, however, it is not specifically mentioned in any para of the plaint as to when the plaintiff was allegedly dispossessed from the shop in question. Even para 17 of the plaint (cause of action para ) also does not state it clearly. It is only by way of inference and combined reading of the plaint from which an inference can be drawn that as per story of plaintiff, he has allegedly been dispossessed on 8.3.2009.
CS No. 8280/2016 2223 From the above said discussion, plaintiff has not able to show his possession at any point of time with regard to the shop in question except the fact mentioned in FIR No. 98/2009, PS Krishna Nagar ( which does not show settled possession of the plaintiff). In the absence of any proof of settled possession by the plaintiff, plaintiff is not entitled to relief under Section 6 of Specific Relief Act, 1963. Accordingly, all three issues are decided against the plaintiff and in favour of the defendants.
24 Suit of the plaintiff is dismissed accordingly. 25 File be consigned to record room as per rules.
Announced in the open Court (MAYANK MITTAL)
on this 24th day of August, 2022 ACJ/ARC/CCJ (East)
Karkardooma Courts, Delhi
CS No. 8280/2016 23