Delhi District Court
It Is The Case Of The vs Unknown on 22 May, 2019
Neelima Gupta v Yogesh Saroha & others CS 18652/2016
IN THE COURT OF SH.MANISH YADUVANSHI
ADDITIONAL DISTRICT JUDGE (CENTRAL):
TIS HAZARI COURTS: DELHI
CIVIL SUIT No : 18652/2016
SMT.NEELIMA GUPTA
wife of Sh.Ravi Gupta
resident of B-4/1,
Vasant Vihar, New Delhi 110 057 .....Plaintif
VERSUS
1.SH. YOGESH SAROHA
son of late Sh.C.S.Saroha
presently resident of D-152,
Freedom Fighters Enclave, IGNOU Road,
Neb Sarai, New Delhi 110 068.
previously resident of A-7, 1st floor,
Indira Enclave, Neb Sarai, New Delhi 110 068.
2.SH.SHYAM SUNDER KAUSHIK
son of Sh.Bhim Singh
resident of W-8/29,Sainik Farms
New Delhi 110 068
(deleted vide order dated 04.2.2013)
3.Freedom Fighters Cultural Centre
a Society under the Societies Registration Act
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Neelima Gupta v Yogesh Saroha & others CS 18652/2016
through Sh,Prem Deep President
B-15,Freedom Fighters Enclave, IGNOU Road,
Neb Sarai, New Delhi 110 068.
(proforma party)
4.SH.BISHAMBER DAYAL(since deceased)
through
(i) Mrs.TARAWATI widow of late Sh.Bishamber Dayal
resident of village Neb Sarai, Mehrauli,
New Delhi 110 030
(proceeded exparte vide order dated 30.10.2001)
(ii) Mrs.GEEETA daughter of late Sh.Bishamber Dayal
resident of village Neb Sarai, Mehrauli,
New Delhi 110 030
(proceeded exparte vide order dated 30.10.2001)
5. Sh.SHOBHA RAM son of late Sh.Badlu Ram
resident of village Neb Sarai, Mehrauli,
New Delhi 110 030
(proceeded exparte vide order dated 29.3.2001)
6. Sh.PREMANAND son of late Sh.Badlu Ram
resident of village Neb Sarai, Mehrauli,
New Delhi 110 030
(proceeded exparte vide order dated 29.3.2001)
7. Sh.DARSHAN SINGH son of late Sh.Badlu Ram
resident of village Neb Sarai, Mehrauli,
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Neelima Gupta v Yogesh Saroha & others CS 18652/2016
New Delhi 110 030
(proceeded exparte vide order dated 29.3.2001)
8. Smt.SHANTI DEVI wife of Sh.Chander Bhan
daughter of Sh.Badlu Ram
resident of village Pehladpur Bangar,
New Delhi 110 044
(proceeded exparte vide order dated 25.7.2000)
9. Smt.SHANTI DEVI wife of late Sh.Badlu Ram
resident of village Neb Sarai, Mehrauli,
New Delhi 110 030
(proceeded exparte vide order dated 29.3.2001 &
30.1.2004) ...Defendants
SUIT FOR POSSESSION UNDER SECTION 6 OF THE
SPECIFIC RELIEF ACT, 1963
Date of Institution of the suit : 18.1.2000
Date on which judgment was reserved : 13.5.2019
Date of decision : 22.5.2019
JUDGMENT
1. It is the case of the plaintiff that being in actual physical possession of the plot bearing No.D154, measuring 200 sqyds in the Freedom Fighters Cultural Centre (herein after referred to as "the FFCC") situated at village Neb Sarai, Mehrauli, New Delhi (suit property) Result : Suit dismissed Page 3 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 from 03.11.1991 till she was illegally disposed by the defendants, more particularly defendants no.1 and defendant No.2 (D2 since deleted from the array of parties on 04.2.2013), in the month of November 1999.
2. As per the plaintiff, the defendant no.1 and since deleted defendant no.2 were the persons who dispossessed the plaintiff. Original defendant no.3 is the society under whom the original allottee Sh.Rohit Kochhar had become a member on 21.12.1986. He was predecessor in interest of this plaintiff as through him, the plaintiff purchased the suit property on 03.11.1991. The original defendants no.4 to 7 are the sons of one Sh.Badlu Ram - bhumidar in respect of piece of land comprised in khasra No.34, Khata Khatauni No.136, ad measuring 4 bigha 6 biswas in the revenue estate of village Neb Sarai, Mehrauli, New Delhi.
3. Upon the demise of said Sh.Badlu Ram, the said piece of land being bhumidari land descended upon his male lineal descendants i.e. original defendants No.4 to 7. The original defendant no.8 is the daughter of late Sh.Badlu Ram who allegedly claimed one half share in the suit property by virtue of a Will. The original defendant No.9 is the wife of late Sh.Badlu Ram. On his demise on 08.7.1985, the said late Sh.Badlu Ram left behind the following legal heirs :
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(a) Sh.Shanti Devi wife
(b) Sh.Shanti Devi daughter
(c) Sh.Bishamber Dayal son
(d) Sh.Shobha Ram son
(e) Sh.Premanand son
(f) Sh.Darshan Singh son LRs No.(c) to (f) as mentioned in para 4 of the original plaint being the only male descendants are the original defendants no.4 to 7.
4. Since the provisions of Delhi Rent Reforms Act 1884, applied, these defendants inherited the said land owned by their father. The defendant no.3 society was founded to establish the FFCC and residential colony for its members.
5. The original defendants no.4 to 7 approached original defendant no.3 for sale of the said bhumidari land. The original defendant No.3 purchased 44 acres of land and enlisted 500 members. The said land in this case constituted part of this 44 acres of land which was purchased from many/different land owners and late Sh.Badlu Ram was bhumidar of piece of land measuring 4 bigha 6 biswas (as aforesaid). The original defendant no.3 purchased this land also vide agreement to sell dated 21.4.1987 executed between original defendant no.3 and defendants no.4 to
7. The sale consideration was Rs.3,50,000/. Vacant possession of the said Result : Suit dismissed Page 5 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 land was handed over to the original defendant no.3 Society which is confirmed vide affidavit dated 21.4.1987 itself. A receipt was also executed.
6. As notification under Section 4 and 6 of the Land Acquisition Act had been promulgated, no sale deed could have been registered and hence titulary documents comprised of Agreement to Sell, Registered General Power of Attorney, Affidavit etc. Subsequently, on 18.11.1988, the Land Acquisition notification was quashed vide judgment reported in Volume 37 (1989) DLT 150 which was affirmed and upheld by the Hon'ble Apex Court on 20.9.1991 vide judgment reported in Volume 45 (1991) DLT 602.
7. Original defendant no.3 spent crores of rupees in establishing the complex and demarcated residential plots on site, erected boundary wall and demarcated the site including culverts. The original defendant no.3 Society also communicated with the Chief Town Planner, Municipal Corporation of Delhi on 24.4.1987 for getting the approved lay out plan. The members of the society constructed their houses on their respective plots and started residing.
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8. The plaint narrates that the original defendant no.3 is in continuous possession of the entire land including the abovenoted bhumidari land from 21.4.1987 and has thereafter handed over the demarcated plots to its members with vacant and peaceful possession. It is averred that the letter dated 17.1.1994 addressed by the society to its members also establishes the above fact. It is in respect of No Objection Certificate for electricity connections. On 18.7.1995, the original defendant no.3 society informed its members that No Objection Certificate had been granted and other civic facilities will be provided in due course of time. It is claimed that letter dated 24.3.1999 issued by the Municipal Corporation of Delhi in respect of Property Tax leviable on the properties also confirms continuous possession of the defendant no.3. It is finally submitted that on 12.11.1999, the original defendant no.3 had even submitted Lay Out plan to Urban Development Department for regularization.
9. The plaint further narrates the facts about the plaintiff's processor in interest Sh.Rohit Kochhar. He became member of the defendant no.3 society on 21.12.1986 and was allotted plot No.D154 measuring 200 sqyds (suit property) vide allotment card No.271. As stated earlier, the plaintiff purchased this plot from Sh.Rohit Kochhar on 3.11.1991 for a sale consideration of Rs.82,000/ and vacant possession of Result : Suit dismissed Page 7 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 the said plot was handed over to the plaintiff. Agreement to Sell, Receipt, Affidavit, General Power of Attorney, Special Power of Attorney and Will all dated 3.11.1991 were also executed.
10. Sh.Rohit Kochhar had paid a sum of Rs.5,000/ to the original defendant no.3 society on 20.9.1991 towards Development Charges and after it, the plaintiff paid a sum of Rs.10,000/ in cash and Rs.10,000/ by cheque to the defendant no.3 society towards development charges on 08.11.1991. Subsequently, on 23.3.1993, the plaintiff herself became a member of the Freedom Fighters' Enclave in respect of the suit plot and particulars of the plaintiff were entered into the telephone directory of the Association which establishes that the plaintiff is the true owner of her portion of the suit land (plot). She was asked by the defendant no.3 society vide letter dated 27.5.1992, to start construction in accordance with the Building Bylaws.
11. She, however, could not raise construction because the land was still unauthorized. However, by virtue of the No Objection Certificate dated 18.3.1996 issued by the Town Planning Department, the original defendant no.3 was required to deposit Development Charges for water connection as per subsequent letter dated 04.4.1996 in respect to its request Result : Suit dismissed Page 8 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 letter dated 03.4.1996. Thus, on demand, the plaintiff paid her membership charges of Rs.3,600/ till March 1996 by cheque vide receipt No.844 dated 25.2.1996. The plaintiff also deposited the first installment of Development Charges of Rs.1,350/ on 07.11.1996 against receipt.
12. The plaintiff was dispossessed from this plot on 06.11.1999. It is submitted that in the suit property there are approximately 17 plots out of which construction has been made on nine. The plaintiff is one of the seven remaining plot owners who could not construct houses on the plots which the original defendants no.1 and since deleted defendant no.2 had illegally taken over without following due process of law. It is alleged that the said defendants have illegally occupied the remaining plots which were not constructed. It is alleged that the boundary wall covering the plot of the plaintiff as well as the remaining plots have been illegally and forcibly broken by the original defendant no.1 and since deleted defendant no.2.
13. Defendant No.8 has set up a Will of late Sh.Badlu Ram after three years of his death claiming that one half of the land in khasra No.34 has been mutated in favour of defendants No.4 to 7 vide order of the SDM in case No.546/RA/1987. According to the plaintiff, no publication preceded with the mutation and since the property is not divided by metes and bounds, its title, particularly over the portion which is in possession of Result : Suit dismissed Page 9 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 the plaintiff, is illegal.
14. As per the plaint, prior to this mutation order dated 26.11.1988, the defendant no.8 filed a suit in Civil Court against her four brothers, her step mother and one Sh.Ratti Ram on 17.3.1988 seeking injunction even though the land had already been sold prior to filing of the suit to the defendant no.3 on 24.1.1987. It is averred that in the written statement filed in the said suit, the defendants on.4 to 7 had categorically stated that the suit land was sold off to the defendant no.3 and vacant possession was also handed over. They also pleaded that the defendant no.3 society is the necessary party to that lis and its impleadment was also sought. These brothers also stated that Sh.Baldu Ram could not have executed any Will as he was chronic patient of tuberculosis and asthma and was under continuous treatment for the last two years prior to his death.
15. On learning about the alleged mutation on the basis of Will as obtained by defendant no.8, defendant no.3 society filed a suit on 31.12.1989 in Civil Courts being Suit No.11/1990 seeking declaration that the mutations order dated 18.11.1988 be declared as illegal and void and that the defendant no.3 society be declared as owner of the suit land. Injunction was also sought. The defendant no.8 filed written statement in this suit on 19.3.1990 contending that she is in possession to the extent of Result : Suit dismissed Page 10 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 her share which is said to be incorrect averment as it is defendant no.3 which was in actual possession of the entire land. The suit was pending at the time of filing of the present suit. In the replication filed in that suit, the defendant no.3 claimed that declaration of bhumidari rights is governed by the Delhi Land Reforms Act and since mutation under its provisions is summary proceeding, it does not create any right, title or interest in favour of the person in whose name mutation is made.
16. During the pendency of the above note suit, the defendant no.8 entered into an agreement to sell with the defendants no.1 and 2 in respect of land measuring 2 bigha 3 biswas allegedly in her possession out of the total land comprising of 4 bigha 6 biswas in khasra No.34. It is stated that since her own suit was pending and the issue of her possession over one half share in the land measuring 4 bigha 6 biswas in khasra No.34 was sub judice, execution of the agreement to sell is nothing but nullity. It is stated to be in violation of Section 52 of the Transfer of Property Act. Subsequently, defendants no.1 and 2 filed their own suit bearing No.1082/1993 (renumbered as 469/1996) for specific performance and injunction on 25.8.1993 on the basis of agreement to sell dated 21.8.1990 against defendant no.8 and one Ratti Ram the then General Secretary of the defendant no.3 society.
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17. This Ratti Ram was later on deleted from the array of parties despite the fact that the said Ratti Ram was impleaded in his individual capacity and had made statement that possession of the land was with the defendant no.3 society, yet the Society was not impleaded as party in the said suit. This was contested solely between defendants no.1 and 2 and the defendant no.8 and a decree was obtained by fraud. It is submitted that this decree dated 20.9.1997 is collusive and that the plaintiff came to know of it only in November 1999 when she was dispossessed from the suit property. Thus reasserting that the plaintiff continued to be in possession of the suit land from 03.11.1991 till her illegal dispossession from it on 06.11.1999, she filed this suit under Section 6 of the Specific Relief Act seeking possession in respect of the suit property i.e. plot bearing No.D154, measuring 200 sqyds in the Freedom Fighters Cultural Centre (herein after referred to as "the FFCC") situated at village Neb Sarai, Mehrauli, New Delhi.
18. Only defendants no.1, 2 and 3 have filed their respective written statements in this suit. As a matter of fact, on 23.3.2000, defendants no.1 and 3 were proceeded against exparte but on an application to that effect exparte, orders were set aside on 04.5.2000. Defendants no.1, 2 and 3 filed their separate written statements. The defendant No.8 was also proceeded exparte on 25.7.2000 whereas defendants no.5, 6, 7 and 9 were Result : Suit dismissed Page 12 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 also proceeded exparte on 29.3.2001. On the same day, this Court was informed that the defendant no.4 had died. On 03.8.2001, LRs of defendants namely Smt.Tarawati and Smt.Geeta were impleaded and since they refused court summons, these LRs were also proceeded against exparte on 30.10.2001.
19. The plaint is set out in rather extended details in order to show the plaintiff's case to the effect that though this suit is simple possession suit under Section 6 of the Act but the plaintiff has extensively pleaded "title". The same will not be the requirement with the written statements. The defendants no.1 and 2 have though filed different/separate written statements, however, the ground of assail to the plaint are similar. To put the same succinctly, the defendants no.1 and 2 are themselves claiming to be the owners of the bhumidari land. They denied that any question of dispossessing the plaintiff arose as they themselves are in actual possession of the suit land since 26.8.1990 after having purchase it from defendant no.8 by virtue of sale documents dated 26.8.1990. It is reasserted that the plaint is silent as to how Sh.Rohit Kochhar was put in actual possession of the suit plot by the defendant no.3. So far as defendant no.3 is concerned, the defendants also challenged any resting of titulary right qua the suit land in it. Bar of Section 185 of the Delhi Land Reforms Act 1954, has been pleaded. The written statement demonstrates as to how the defendant no.3 Result : Suit dismissed Page 13 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 society took contradictory stands with respect to actual date on which it acquired possession over the suit land. It is pointed out that Sh.Rohit Kochhar was allegedly allotted the suit plot by defendant no.3 on 21.12.1986 but the defendant No.3 allegedly purchased the land in question from defendants on.4 to 7 on a subsequent date i.e. 21.4.1987 and therefore they could not have handed over possession to Sh.Rohit Kochhar on a previous date i.e 21.12.1986.
20. It is also pointed out that the defendant no.3 claimed in its appeal under Section 64 of the Delhi Lands Revenue Act 1954, to be in possession of the land since the year 1992. It is claimed that since mutation dated 25.11.1988 granted in favour of the defendant no.8 qua the land measuring 2 bigha 3 biswas out of the land measuring 4 bigha 6 biswas has not been challenged by the defendant no.3, therefore, challenge to the subsequent mutation order dated 26.3.1999 is not maintainable. It is also claimed that on 21.4.1987 when the defendant no.3 allegedly purchased the suit land from defendant no.4 to 7 the land itself was under acquisition and provisions of Section 4 of the Delhi Land (Restriction of Transfer) Act 1972 were in force and were subject to notification under Section 6 of the Land Acquisition Act 1894 and that is why no sale deed could not be executed admittedly on 21.4.1987. It is thus claimed that foundation of the alleged transfer of title rights in favour of defendant no.3 is illegal. It is claimed Result : Suit dismissed Page 14 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 that in the revenue records after the death of Sh.Badlu Ram, mutation was sanctioned in the name of defendants on.4 to 7 and 9 as having one half share jointly and the defendant no.8 as having one half share individually. This position continued till 1999, when on the basis of a decree for specific performance, a sale deed was executed in favour of defendants no1 and 2.
21. It is claimed that the suit property is a vacant plot and therefore "possession follows title". It is claimed that neither the plaintiff nor Sh.Rohit Kochhar nor defendant no.3 have any title to the suit land. It is claimed that object of the defendant no.3 is not to develop plots or acquired land as alleged.
22. Written statement then provides details of mutation order dated 26.11.1988 by which name of defendant no.8 in respect of her share of land comprising 2 bigha 3 biswas was effected on the basis of Will of late Sh.Badlu Ram. It is stated that the defendant no.4 to 7 and 9 on one hand and defendant no.8 on the other hand separated their respective one half share each at the site. Portion of the land coming to the share of defendants no.4 to 7 and 9 was undisputedly purchased by the defendant no.3 and was fully built the area whereas portion of the land falling to the share of the defendant no.8 which was subsequently purchased by the defendants no.1 and 2 was fully vacant.
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23. Written statement then provides history of litigation by the defendant no.3 society about which pleadings are also made in the suit plaint. It is reasserted that the defendant no.8 entered into an agreement to sell her share of land to the defendants no.1 and 2 on 26.8.1990 and handed over physical possession also. Since she refused to fulfill the complete contract, suit for specific performance and injunction bearing No.469/1993 was filed and decreed on 20.9.1997. In execution petition, the Court appointed Sh.Sunil Dutt, the Court Ahmad, for execution of the sale deed which was executed and registered in favour of defendants no.1 and 2 on 07.1.1999. Thereafter, mutation of the share of the defendant no.8 was also sanctioned in favour of defendants no.1 and 2 in the revenue records on 26.3.1999. The defendant no.3 filed an appeal under Section 64 of the Delhi Land Revenue Act where it claimed to be in possession of the land in khasra no.34 since the year 1992. It is claimed that the above plea is inconsistent with the claim of defendant no.3 in suit No.11/1990 as well as 76/RA/1991. The suit was dismissed on 04.9.2000. The defendant no.3 claimed that it has been improperly joined as party as admittedly it had not dispossessed the plaintiff. Nevertheless the defendant no.3 admits that the plaintiff was allotted the suit plot as claimed and that she had been in its possession since the year 1987 till dispossession by the defendant no1 and
2. It affirmed that despite request of the defendant no.3 the plaintiff has Result : Suit dismissed Page 16 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 remained unable to raise construction on the plot except a boundary wall.
24. Defendant no.3 also clarified that it had filed a suit for declaration challenging the mutation entry in the name of defendant no.8 and the said suit was pending at the relevant time. It also asserts to be in possession of whole of the khasra no.34 at the time when mutation in favour of defendant no.8 was sanctioned in respect of one half portion of khasra no.34.
25. Replication to the written statement of the defendant is re iteration, renarration and reassertion of the contents of the suit plaint as correct. It is reasserted that the defendant no.3 society had handed over possession to Sh.Rohit Kochhar in 1987 itself. It also reasserted that the suit plot is part of developed residential colony as a result of which three roads dividing khasra no.34 as shown in the site plan. It is submitted that the report of the Local Commissioner dated 31.1.2000 justifies correct situation regarding the construction and that the said report has not been objected to by any of the defendants.
26. It also clarified that when the alleged agreement dated 26.8.1990 was entered into, suit No.11/1990 was already pending for determination on the question whether defendant no.8 has any right over the Result : Suit dismissed Page 17 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 suit land and therefore the said agreement is hit by the doctrine of lis pendens under Section 52 of the Transfer of Property Act. It is submitted that the decree in the suit for specific performance is collusive decree as the plaintiff as not a party to the same. It is also asserted that the plaintiff has not been made party to any other litigation referred to in the written statement.
27. Nine issues were framed on 17.9.2002 which are as under :
1.Whether the present suit is not maintainable in its present form?OPD
2.Whether the suit is barred under any of the provisions of the Delhi Land Reforms Act or under the provisions of Delhi Lands (Restriction on Transfer) Act 1972? OPD
3.Whether the claim made in the suit property could be adjudicated upon and decided by a Civil Court in view of the decision given by the Revenue authorities in the mutation proceedings and if so, how far the same is applicable and binding on the plaintiff? OPD
4.Whether the defendant no.3 came in possession of the suit property on or about 21st April, 1987 and if so, its effect? OPD
5.Whether the plaintiff through the defendant No.3/Society had been in continuous possession of the suit property prior to the agreement to sell dated 26th August 1990 entered into between Result : Suit dismissed Page 18 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 the defendants No.1 and 2 and defendant No.8? OPP
6.Whether the defendant no.3 ever transferred possession of the suit property to the plaintiff and if so, its effect? OPD
7.Whether the plaintiff had been illegally dispossessed from the suit property by the defendants no.1 and 2 on 6th November 1999 or on any other date and if so, its effect? OPP
8.Whether the plaintiff is entitled for a decree of possession in terms of Section 6 of the Specific Relief Act ?OPP
9.Relief.
Issues No.2 and 3 were treated as preliminary issues.
28. On 18.11.2003, the suit was transferred to the Court of the learned District & Sessions Judge, Delhi on account of enhancement of pecuniary jurisdiction. On 30.1.2004 the defendant no.2 was proceeded against exparte, however, the said order was set aside on 27.3.2003.
29. On 16.10.2006, preliminary issue No.2 was decided and the plaint was returned stating that bar of Section 185 of the Delhi Land Reforms Act operated and issue No.3 was left undecided.
30. In CRP No.46/2007, the suit was remanded back vide order Result : Suit dismissed Page 19 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 dated 11.12.2008 which finally decided issue No.2.
31. Defendant no.3 was proceeded against exparte on 15.2.2012. Subsequently on an application of the plaintiff under Order I Rule 10 CPC to the effect that the defendant no.2 ceased to be in possession of the suit plot and on No Objection by the remaining contesting defendants, this Court allowed deletion of name of defendant no.2.
32. On 05.2.2013, a detailed order as passed on an application of the plaintiff under Order XIV Rule 5 CPC. It was ordered that it would be exaggerated to contend that issues No.1 to 3 stood adjudicated by the Hon'ble High Court of Delhi vide judgment dated 11.12.2008. It was observed that issue No.2 had been finally decided. Issues No.5 and 6 were found to be extraneous and therefore deleted. Issue No.7 was reframed as under :
"Whether the plaintiff had acquired physical possession of the suit property on 03.11.1991 and continued till within 6 months of the filing of the suit and was illegally dispossessed therefrom by the defendants no.1 and 2 on or about 06.11.1999? OPP"
33. On 28.5.2013, defendant no.3 was again proceeded exparte and remained so till date. Thus the following issues finally are for determination/consideration before this Court :
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1.Whether the present suit is not maintainable in its present form?OPD
3.Whether the claim made in the suit property could be adjudicated upon and decided by a Civil Court in view of the decision given by the Revenue authorities in the mutation proceedings and if so, how far the same is applicable and binding on the plaintiff? OPD
4.Whether the defendant no.3 came in possession of the suit property on or about 21st April, 1987 and if so, its effect? OPD
7.Whether the plaintiff had acquired physical possession of the suit property on 03.11.1991 and continued till within 6 months of the filing of the suit and was illegally dispossessed therefrom by the defendants no.1 and 2 on or about 06.11.1999? OPP
8.Whether the plaintiff is entitled for a decree of possession in terms of Section 6 of the Specific Relief Act ?OPP
9.Relief.
34. In order to prove her case, the plaintiff has examined two witnesses. The first witness is her husband Sh.Ravi Gupta who has deposed as power of attorney holder of the plaintiff. His affidavit in evidence is Ecx.PW1/A The second witness of the plaintiff is her neighbour Sh.Atul Kumar resident of D184, Freedom Fighters' Enclave, who filed his Result : Suit dismissed Page 21 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 affidavit in evidence as Ex.PW2/A and thereafter evidence of the plaintiff was closed on 07.3.2018.
35. The sole contesting defendant as on date is only defendant no.1. He produced himself as his own witness and his affidavit in evidence is Ex.DW1/A. He was duly cross examined and his evidence was closed on 03.5.2018.
36. This Court has heard Sh.Vijay Kumar Gupta Advocate for the plaintiff and Sh.Devender Kumar Advocate for defendant no.1 and has gone through their respective written submissions besides going through the record in minute details. Appreciation of evidence and appreciation of arguments will be made simultaneously with issues under consideration.
ISSUE No.1
1.Whether the present suit is not maintainable in its present form?OPD Onus to prove this issue is primarily upon the defendants no.1 and 2.
37. As stated, defendant no.2 was deleted. The defendant no.1 has led his evidence. It is contended that as per own case of the plaintiff, it is Result : Suit dismissed Page 22 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 defendants no.1 and 2 both who had dispossessed the plaintiff in the manner alleged. It is further urged without admitting that if the averment is taken on its face value then the defendant no.2 remained a necessary party. Perusal of the application under Order I Rule 10 read with Section151 CPC dated 24.8.2012 reveals that the defendant no.2 was sought to be deleted on the ground that he was no more in possession of the suit plot and therefore he ceased to be a necessary party.
38. Nevertheless, the said defendant would definitely be a proper party as the plaintiff could have never been sure of the fact that the defendant no.2 who claimed to be owner of the suit land could have always reentered the suit property at any future point of time. Nevertheless the only inference that would arise in the current situation is that if the suit is decreed, the decree will not be executable against deleted defendant no.2.
39. This leaves the decision on maintainability of the suit against defendant no.1. His claim is of being in actual possession of the suit property since 26.8.1990 vide agreement to sell Ex.PW1/44.
40. Further claim is that the plaintiff stakes her claim over the suit property though Sh.Rohit Kochhar who came into possession of the property through defendant no.3 society which itself had no right, title or Result : Suit dismissed Page 23 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 interest therein. This follows the deposition to the effect that allotment in favour of Sh.Rohit Kochhar on 21.12.1986 could not have taken place as society itself purchased the suit land from defendants no.4 to 7 on a subsequent date i.e. 21.4.1987. Defendant no.1 (DW1) has also deposed regarding bar to the suit in view of the provisions of Delhi Land Revenue Act and Delhi Land Reforms Act. However, suffice is to say that the relevant issue i.e. issue No.2 stands adjudicated by the Hon'ble High Court of Delhi vide order dated 11.12.2008 in CRP No.46/2007
41. Thus, in essence, the plaintiff is trying to establish that the defendant no.1 has no concern with the suit property which validly and legally came in possession of the defendant no.3 society and through it to Sh.Rohit Kochhar and finally the plaintiff herself. Conversely, the defendant no.1 is attempting to prove that he along with the deleted defendant no.2 validly and legally came into possession of the suit land vide agreement to sell dated 26.8.1990 and got the agreement specifically enforced vide the judgment and decree dated 20.9.1997 Ex.PW1/44 (collectively) as a result whereof the sale deed Ex.PW1/46 dated 07.1.1999 was executed.
42. Conversely, the plaintiff's claim is that dispossession from the suit plot was in the garb of this decree and persons responsible are Result : Suit dismissed Page 24 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 defendant no.1 and deleted defendant no.2.
43. In order to establish that the suit is not maintainable and the defendant no.3 had been taking different stands in different litigations regarding the date on which it acquired suit land, an argument is made that the plot in question is admittedly a vacant plot. The defendant no.1 relied upon Ex.DW1/1 i.e. Memorandum of Association of defendant no.3 to show that the object of the society was never to develop any land and therefore the question of developing the land by the society does not arise. It is urged that when allotment of plot was given to Sh.Rohit Kochhar, the defendant no.3 had no right, title or interest in khasra No.34. It is deposed that in the appeal under Section 64 of the Delhi Land Revenue Act, the defendant no.3 is claiming to be in possession of the aforesaid land since the year 1992 till the date of appeal i.e. the year 1999. It is deposed that in the appeal, the defendant no.3 claims to have purchased the land in question from Smt.Shanti Devi in the year 1992, further stating that Smt.Shanti Devi divested herself from all her rights by executing registered General Power of Attorney in favour of defendant no.3 and also handed over possession of the land in question to the society in the year 1992. On the strength of it, it was urged that the plaintiff herself was claiming to be in possession of the suit plot since November 1991 whereas the society claims to be in its possession since the year 1992 and still claimed possession in the year 1999 Result : Suit dismissed Page 25 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 i.e. when the appeal under Section 64 of the Delhi Land Revenue Act was filed.
44. The above is the only averment in evidence produced by DW 1 in support of the issue under determination. It appears that while making the statement as above, the defendant failed to realize that the present suit has been filed under Section 6 of the Specific Relief Act and the statute clearly mandates by virtue of Section 6(1) that such a suit to recover possession could be brought notwithstanding any other title that may be set up in such suit.
45. Firstly, the defendant is intending to set up title in the suit which would be irrelevant to the present proceedings, and secondly, the present plaintiff had never been a party to any of the litigation between the defendant no.3 and defendants no.1 and 2 or that for that matter any other defendant in the suit and therefore any statement made by the defendant no.3 in such other litigation (as above) will not be binding upon the plaintiff particularly when the defendant no.3 has admitted in the present suit that the plaintiff was given possession of the suit premises.
46. What matters here is the fact that written statement of defendant no.3 suffers from serious omissions in as much as it is claimed Result : Suit dismissed Page 26 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 therein that the plaintiff has been in possession of the plot No.D154 since the year 1987. It can not be lost sight of is a fact that the plaintiff herself is claiming possession on the suit property on a particular date i.e. 03.11.1991 which is much subsequent to the year 1987. If the defendant no.3 was referring to Sh.Rohit Kochhar's possession then written statement is found to be completely silent. The burden would, however, remain upon the plaintiff to prove the aforesaid fact.
47. Nevertheless, in view of my observations as above, in the light of the facts and circumstances of the case, law on the subject and the evidence adduced. it can not be said that the suit as brought is not maintainable against defendant no.1.
Issue No.1 is accordingly decided in favour of the plaintiff and against the defendants.
ISSUE No.3
3.Whether the claim made in the suit property could be adjudicated upon and decided by a Civil Court in view of the decision given by the Revenue authorities in the mutation proceedings and if so, how far the same is applicable and binding on the plaintiff? OPD Onus to prove this issue is upon the defendant.
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48. No specific evidence has been led by the defendant as DW1 on this issue. As a matter of fact even arguments have not been addressed on the aspect involved in the issue. This issue was left unanswered when the plaint was originally returned by the order of my learned predecessor on 16.10.2006 holding that "It appears that this issue cannot be decided unless evidence is led on record by the parties". The order itself has been set aside and the case has been remanded back to this Court on 11.12.2008 for disposal in accordance with law. It has also come in the order of my learned predecessor dated 05.2.2013 that it would be exaggerated to contend that issues No.1 to 3 stand abandoned while holding issue No.2 has been finally decided.
49. Although no evidence has been specifically led on this issue but this Court still intends to consider this issue in the light of the fact that the nature of the suit itself bars setting up title in defence to it. Unless there is finding on the aspect that the decision given by the Revenue Authorities in the mutation proceedings are specifically pertaining to the suit plot, there can be no bar on this Court to adjudicate the issue of unlawful dispossession.
50. To put it simply, to claim benefit under this issue, it will be for the defendant to conclusively establish that the land mutated in his Result : Suit dismissed Page 28 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 favour includes the suit plot. This has not been the issue in these proceedings. Accordingly, this issue is decided against the defendant and in favour of the plaintiff.
ISSUE No.4
4.Whether the defendant no.3 came in possession of the suit property on or about 21st April, 1987 and if so, its effect? OPD Onus to prove this issue is upon the defendant No.3.
51. No evidence has been led on the issue by the defendant No.3 as it remained exparte since 28.5.2013 till date. As per the plaintiff, this defendant is merely a performa defendant. In the absence of any evidence on the issue led by the defendant no.3, the issue is decided against the said defendant no.3.
52. So far as defendant no.1 is concerned, he has never admitted that the defendant no.3 came in possession of the suit land on 21.4.1987 as it is his stand that the defendant no.3 has been taking contrary pleadings regarding the actual date on which it came in possession of the suit land.
The issue stands decided accordingly.
Result : Suit dismissed Page 29 of 40Neelima Gupta v Yogesh Saroha & others CS 18652/2016 ISSUE No.7
7.Whether the plaintiff had acquired physical possession of the suit property on 03.11.1991 and continued till within 6 months of the filing of the suit and was illegally dispossessed therefrom by the defendants no.1 and 2 on or about 06.11.1999? OPP
53. Onus of this issue is on the plaintiff. Burden is also on the plaintiff. The issue itself has three limbs - first limb of the issue is whether the plaintiff acquired physical possession of the suit plot on 03.11.1991. The second limb of the issue is whether the plaintiff continued in such possession of the suit plot till 06.11.1999; while the third limb is whether such dispossession of the plaintiff from the suit plot was without her consent and took place within a period of 6 months immediately preceding filing of the suit.
54. Irrespective of the title that the plaintiff intends to set up by way of this suit, it is mandatory in law for the plaintiff to establish that she was and remained in possession of the suit plot in the manner pleaded and deposed.
55. This Court has observed that in the affidavit filed towards Result : Suit dismissed Page 30 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 evidence of PW1, it is specifically deposed in para 22 that "the present suit is based on possession and not on title". Towards beginning of the judgment i.e. soon after narrating the facts in the suit plaint, I had observed that the entire plaint is setting up the title in the suit plot though the relief is limited to possession on the basis of dispossession without her consent and without following due process of law.
56. The plaint and the evidence are to establish that event of dispossession took place in the garb of court decree (Ex.PW1/44 collectively). Surprisingly, the plaintiff did not opt for remedy as provided under Order XXI Rule 98 and/or 100 of the Code of Civil Procedure.
57. Needless to say the Court orders passed on such application have an effect on a Court decree. On the contrary the plaintiff opted for filing the present suit and there is no bar to file such suit if the plaintiff does not intend to seek declaration of or set up her own title.
58. Having said so, the plaintiff has led oral evidence as well as documentary evidence to show that she acquired physical possession of the suit property on 03.11.1991. The relevant documents are Ex.PW1/2 (Agreement to sell); Ex.PW1/3 (Affidavit of previous owner/allottee of the Result : Suit dismissed Page 31 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 suit plot namely Sh.Rohit Kochhar); Ex.PW1/4 (Receipt of Rs.82,000/ towards full and final settlement/consideration towards sale of the suit plot); Ex.PW1/5 (General Power of Attorney executed by Sh.Rohit Kochhar in favour of the plaintiff); Ex.PW1/6 (Special Power of attorney executed by Sh.Rohit Kochhar in favour of the plaintiff); and Ex.PW1/7 (Will of Sh.Rohit Kochhar in favour of the plaintiff).
59. Subject matter of the agreement of sale is the plot measuring 200 sqyds bearing No.D154, FFCC, New Delhi 110 030. Ex.PW1/3 reveals that Sh.Rohit Kochhar had given vacant possession of this plot of land to the purchaser i.e. the plaintiff herein on 03.11.1991. So far as predecessor in interest of the plaintiff namely Sh.Rohit Kochhar is concerned, the defendant no.3 has admitted the plaintiff's claim to the effect that the said Sh.Rohit Kochhar was the original allottee in possession of this plot. Whether or not, the society had acquired the plot legally and had title in it is not subject matter for determination in this suit.
60. The plaintiff has to establish her legal possession over the suit plot which she does on the basis of document Ex.PW1/A which is the allotment ticket No.271 dated 21.12.1986 vide which the defendant no.3 society allotted the membership of plot No.D154 to Sh.Rohit Kochhar.
Result : Suit dismissed Page 32 of 40Neelima Gupta v Yogesh Saroha & others CS 18652/2016 This document also contains endorsement dated 08.11.1991 to the effect that subsequently membership of the plot allotment was transferred by the defendant no.3 Society in the name of the plaintiff. That Sh.Rohit Kochhar was in possession of the suit plot is sought to be established and rightly so on the basis of document Ex.PW1/11 which is receipt No.46 dated 20.9.1991 issued by the defendant no.3 society in the name of Sh.Rohit Kochhar towards deposit of development charges.
61. To establish that after coming into possession of the suit plot on 03.11.1991, the plaintiff also paid up development charges, the plaintiff has proved documents Ex.PW1/9 and Ex.PW1/10 which are two receipts of payment of development charges to the society by the plaintiff. Both these receipts are dated 08.11.1991.
62. The plaintiff also proves Ex.PW1/25 which is membership card dated 21.3.1993 affirming membership of the plaintiff in the defendant no.3 society in respect of plot No.D154. Ex.PW1/31 is another such document in respect of water supply meter installed in the name of the plaintiff on the suit plot.
63. PW1 has stood his ground and there is nothing in his cross Result : Suit dismissed Page 33 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 examination to show that the plaintiff did not acquire possession of the suit plot on 03.11.1991 as claimed. On the other hand, the stand of defendant no.1 is that the plaintiff never came in possession of the suit plot. However, the said stand is based on the title which the defendant no.1 tried to establish over the land measuring 2 bigha 3 biswas in khasra number 34 without specifying that plot no.D154 is part of this land.
64. Needless to say, there is no refutation to the plaintiff's claim that defendant no.3 society had accumulated a very large area of land comprising of 44 acres. I have already held while returning findings on the other issues that title set up by the defendant No.1 is not to be gone into for the purpose of this suit. Suffice is to say that the documents proven by the plaintiff are showing existence of the suit plot which has definite number i.e.D154 for the purpose of identification whereas this is not so with the documents produced by the defendant no.1.
65. The plaintiff complains of dispossession from the suit plot by defendant no.1 and since deleted defendant no.2 on 06.11.1999. The suit itself has been instituted on 20.1.2000 i.e. within six months of the date of dispossession. However, the plaintiff has to prove the factum of dispossession in accordance of Section 6 of the Specific Relief Act.
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66. The entire plaint and for that matter even the replication is silent as to the manner in which the plaintiff wad dispossessed from the suit plot. The plaint is replete with repeated averments that after coming in possession of the suit plot on 03.11.1991, the plaintiff remained in constructive possession over the vacant plot till the date of dispossession i.e. 06.11.1999.
67. Para 24 of the plaint is of extreme relevance as it is this paragraph which for the first time put some semblance on the pleadings qua the factum of dispossession. Here the plaint refers to a decree for specific performance dated 20.9.1997 claiming it as collusive decree between the defendant no.1 and since deleted defendant no.2 on one hand and defendant no.8 on the other hand. It is claimed that the plaintiff came to know of the decree only in November 1999 when she was dispossessed from the suit plot and that she would take steps to have the said decree set aside.
68. Further clarification on the issue can be found in paragraph 26 of the plaint wherein she claims to be enjoying continuous, uninterrupted and peaceful possession over the suit plot till the month of November 1999 when she came to know that the boundary wall constructed by her has Result : Suit dismissed Page 35 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 apparently been broken down by defendant no.1 and since deleted defendant no.2 and physical possession taken over without the consent of the plaintiff or without following the due process of law. Reference is made to some photographs taken by the plaintiff showing that brick wall on the suit plot had been broken down. However, the said photographs have not been proved.
69. The above establishes that the plaint is silent as to how the plaintiff came to know about the dispossession although she claims that it was under the garb of a court decree Ex.PW1/44 (collectively).
70. The plaintiff herself has not appeared in the witness box. Her husband has in the capacity of her attorney. His testimony regarding the alleged dispossession was never pleaded by the plaintiff in the plaint. Of course, the plaintiff also produced her neighbour Sh.Atul Kumar as PW2 but facts to the effect that it is this neighbour who noticed activities of defendant no.1 and since deleted defendant no.2 along with others on 06.11.1999 and accordingly informed husband of the plaintiff about it, is also nowhere pleaded. Major part of affidavit Ex.PW1/A is found to be beyond pleadings particularly paragraphs 16 and 17.
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71. He deposed to have received phone call on 06.11.1999 from PW2 upon which he learnt that the defendant no.1 had taken physical possession of the suit property illegally, without consent and permission of the plaintiff and was in the process of breaking the intervening walls between the plots No.D154 and 153, between the plots No.D153 and 152, and between the plots No.D152 and 151, and making all these plot as one plot. His testimony is completely beyond pleadings as there is no reference to the defendant no.2 as a party to the alleged dispossession.
72. In para 17 of this affidavit, it is deposed that PW1 rushed to the suit premises and few more persons namely Kamehswar Rao, Ganesh Prasad (local residents) and one Sh.Chandrika Prasad (Member of Parliament) had also come to the spot. It is deposed that the defendant no.1 was breaking the boundary wall and when he attempted to stop him, the defendant no.1 revealed that he was owner of the suit property and dispossession is based on a Court decree. He approached the local police but no complaint was registered. This testimony is also beyond pleadings. No police complaint has been produced on the record of this case.
73. The fact is that the plaint never explains the manner of dispossession whereas the evidence explains the manner of dispossession and the cross examination introduced such facts which are neither here nor Result : Suit dismissed Page 37 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 there.
74. Surprisingly, the PW2 has claimed presence of not only team of police officials but also revenue officials as well as local people from the locality including member of the Residents' Welfare Association at the time of alleged dispossession. No such person except PW2 has been produced.
75. It is settled law that there can not be variance between a fact pleaded and a fact proved. Reliance is placed upon S.V.Devadiga v Smt.Rangu S. Devadiga, AIR 1977 SC 890 to the effect that the appellate Court cannot make out a new case which was not pleaded by a party. In Harish Mansukhani v Ashok Jain, 2009 (2) AD (Delhi) 30, it is held that it is "most fatal" when there is variance between what was pleaded in the plaint and what was sought to be proved. Likewise, in Bachhaj Nahar v Nilma Mandal & Anr, (2008) 17 SCC 491, same proposition was made. The judgment is relied on the fundamental rules in appreciation of evidence to the effect that, "10...(i) No amount of evidence can be looked into, upon a plea which was never put forward in the pleadings. A question which did arise from the pleadings and it was by the Hon'ble Apex Court that,"Even if the burden of proof does not lie on a party, the Court may draw an adverse inference if hie withholds important documents in his possession which can Result : Suit dismissed Page 38 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 throw light on the fact on issue."
76. Suffice would be to say that no amount of evidence led beyond pleadings can come to assistance of a litigant. It is trite to say that what is not pleaded can not be proved. Thus the second and third limb of the issue under determination which pertains to crucial aspect of alleged dispossession in the manner claimed remains unproved. The plaintiff has neither shifted nor discharged the burden of proof.
Accordingly, issue No.7 is decided against the plaintiff and in favour of the defendant.
ISSUE No.8
8.Whether the plaintiff is entitled for a decree of possession in terms of Section 6 of the Specific Relief Act ?OPP
77. In view of the findings recorded on the above issues herein above, the plaintiff is not entitled to the decree of possession in terms of Section 6 of the Specific Relief Act. The issue is answered accordingly.
ISSUE No.9 RELIEF
78. In view of my findings on above issues no relief is granted to Result : Suit dismissed Page 39 of 40 Neelima Gupta v Yogesh Saroha & others CS 18652/2016 the plaintiffs. In the result, the suit of the plaintiff is dismissed.
Parties are left to bear their own costs.
Decree sheet be drawn up accordingly.
File be consigned to the record room.
Announced in the open Court (MANISH YADUVANSHI)
on this 22.5.2019 ADDL. DISTRICT JUDGE-11
CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI.
Digitally signed
by MANISH
YADUVANSHI
MANISH
YADUVANSHI Date:
2019.05.23
15:34:01
+0530
Result : Suit dismissed Page 40 of 40