Delhi District Court
Smt. Chandro vs Sh. Mahender Singh on 28 February, 2017
IN THE COURT OF MS. NEHA, CIVIL JUDGE09,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
Suit No : 98460/16 (Old No. 190/14)
Case ID No. 02401C0673502007
Smt. Chandro
W/o Late Sh. Sultan,
R/o Village Sannoth,
Delhi. .... Plaintiff.
Versus
1. Sh. Mahender Singh
S/o Late Sh. Dharam Singh
R/o Village Sannoth,
Delhi.
2. Sh. Rame (since deceased) Through LRs :
i. Smt. Shanti Devi W/o Late Sh. Rame
ii. Sh. Raj Singh (son)
iii. Sh. Raj Pal (son)
iv. Sh. Balraj (son)
v. Sh. Rajender (son)
vi. Smt. Rajwanti (daughter)
vii. Smt. Santosh (daughter)
3. Sh. Rajpal,
S/o Late Rame,
All R/o Village Sannoth,
Delhi. .... Defendants.
SUIT FOR DECLARATION, MANDATORY AND PERMANENT
INJUNCTION.
Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 1 of 25
Date of Institution : 17.07.2007
Date of reserving Judgment : 03.12.2016
Date of pronouncement : 27.02.2017
JUDGMENT
1. Vide this Judgment, I shall dispose of suit of the plaintiff seeking a decree of declaration, mandatory and permanent injunction.
2. Brief facts as stated in the plaint are as follows : 2.1. The plaintiff and her husband since deceased) were permanent residents of Village Sannoth, Delhi. Being a permanent resident of Village Sannoth, the husband of the plaintiff was having a residential house within the Old Lal Dora Abadi of village Sannoth, Delhi. After the death of husband Sh. Sultan, the builtup house in the old Lal Dora Abadi was inherited by the plaintiff.
2.2. During Consolidation Proceeding held in the village, a residential plot in khasra no. 280 measuring 120 sq. yds was also allotted to the plaintiff and since then, the plaintiff is also in possession of the said plot. The said plot is situated towards the western side of old Lal Dora house of the plaintiff and a public passage is situated towards the northern side of the plot.
2.3. The defendant is the owner and in possession of plot in khasra no. 280/1 measuring 250 sq. yds (05 Biswas) situated in the extended Lal Dora Abadi of village Sannoth, Delhi and the same was allotted to Sh. Dharam Singh, father of the defendant Mahender Singh, during the consolidation proceeding. A rasta bearing khasra no. 287 was provided to the plot khasra no. 280/1 towards the southernwestern side of the Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 2 of 25 plot. The father of the defendant had filed a complaint in the year 1986 against the plaintiff for the alleged encroachment of public passage by way of installing "Gandasa" (fodder cutting machine) and also by raising boundary wall over the public passage.
2.4. The portion, which has been shown red in the site plan and which is marked ABCD, is the ancestral property of the plaintiff inherited from her husband and therefore, the question of being a public passage did not arise at all.
2.5. A conditional order was passed by the SDM, Narela on 09.02.1988 and again, a fresh conditional order dated 09.07.2001 was passed by the SDM on the ground that the conditional order dated 09.02.1988 was not served to the plaintiff. Vide said order, the plaintiff was directed to remove the fodder cutting machine and the boundary wall surrounding the said fodder cutting machine. 2.6. After the receipt of the said order, the plaintiff had filed objections and submitted that there was no encroachment on any public passage and no fodder cutting machine was installed by the plaintiff. Plaintiff also submitted in the objections that the plot no. 280/1 was allotted to the father of the defendant during consolidation proceedings and a passage bearing khasra no. 287 was provided to the said plot. After allotment of plot no. 280/1, Sh. Dharam Singh had sold out the half portion of southern side of plot to Sh. Ram Sarup which adjoined the rasta bearing khasra no. 287 and the remaining portion was left with Sh. Dharm Singh.
2.7. Sh. Dharm Singh filed a petition under Section 133 Cr.PC on the Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 3 of 25 ground that he had no rasta for the use and enjoyment of plot no. 280/1. The plaintiff also moved an application under Section 137 (2) Cr.PC for stay of proceedings sine die till the decision by the competent Court but no order was passed by the SDM on the said application and without recording any evidence, the conditional order was made absolute. The conditional order is totally null and void order as the SDM has no jurisdiction to declare a private property as a public passage.
2.8. The conditional order dated 9.7.2001 was made absolute on 8.7.2005 by the SDM on the report of the Halqa Patwari. The Halqa Patwari had clearly made a report that a passage bearing Khasra No. 287 was left out for the plot No. 280/1 (05) of Sh. Dharam Singh for the purpose of ingress and egress during the consolidation proceeding. It was also admitted by the SDM that if plot No. 280/1 of Dharam Singh had continued to exist as a single plot then there would have been no dispute regarding the passage since the same exits as in Khasra No. 287. The conditional order dated 9.7.2001 is totally null and void as the SDM has no jurisdiction to declare a private property as a public passage.
2.9. The plaintiff also filed a revision petition under Section 397 Cr.P.C. before the Ld. Sessions Judge but the same was dismissed on 2.12.2005. Thereafter, the defendant, in collusion with the local police and officials of the SDM, had removed the fodder cutting machine and also demolished the boundary wall. After removal of the same, the defendant had constructed a pucca wall between point A to D and D to Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 4 of 25 C and thus had illegally occupied the portion. The defendant had no right to raise construction and had committed a serious offence by blocking the said passage.
2.10. In the month of June and July 2007, the defendant collected bricks for constructing a pucca building on the portion. The plaintiff has made report to the Local Police, SDM and the BDO but no action was taken against the defendants. Hence, the plaintiff has filed the present suit seeking following reliefs :
Pass a decree of declaration in favour of the plaintiff and against the defendant thereby declaring the plaintiff as owner of land as shown ABCD in the site plan situated in the Old Lal Dora Abadi of village Sannoth, Delhi and further the order of the Ld. SDM dated 08.07.2005 and the order dated 02.12.2005 passed by Additional Session Judge, Delhi be declared as null, void and illegal and without jurisdiction.
Pass a decree of mandatory injunction/possession directing the defendant to remove the pucca structures constructed by the defendant on the portion as shown ABCD in the site plan and further to restore the possession of the red portion to the plaintiff.
Pass a decree of permanent injunction in favour of the plaintiff and against the defendant restraining the defendant or their agents, officials, servants etc. from dispossessing the plaintiff from the suit property as shown ABCD in the site plan situated in the Old Lal Dora Abadi of village Sannoth.
Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 5 of 253. The defendant No. 1, Mahender Singh has filed written statement taking following defences: 3.1. The subject matter of the present suit has been decided by the SDM, Alipur against the plaintiff and the appeal filed by the plaintiff against the order of SDM was also dismissed. The plaintiff had also filed a revision petition which was also dismissed against the plaintiff. This Court has no territorial jurisdiction as the subject matter of the suit is governed by Delhi Land & Reforms Act, 1954. The plaintiff has no locus standi to file the present suit as Sh. Dharam Singh, father of the defendant had already sold the property and at present, the defendant has no concern with the said property.
3.2. The suit is also barred under Section 185 of Delhi Land Reforms Act, 1954 as no declaration suit can be filed in the Civil Court. The suit is also bad for non joinder as well as misjoinder of necessary parties. The plaintiff has no cause of action to file the present suit. 3.3. There is a public rasta towards the northern side for entering in the plot of the defendant. The subject matter of the present suit is a gali which was closed by the plaintiff and the said obstruction was removed by the order of Revenue Assistant, Alipur Delhi. The portion in dispute was a public passage in the interest of villagers at large and was not the property of plaintiff's husband. The plaintiff is not the owner or in possession of the said portion and the suit of the plaintiff be dismissed as it is a public way at large. The construction raised by the plaintiff was removed after getting orders from the Hon'ble Courts. The defendant and his father had not raised any construction in the said Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 6 of 25 portion. The allegations made in the plaint are denied in the written statement.
4. Initially the suit was filed only against defendant No. 1 Mahender Singh. Thereafter, the defendant No. 1 placed on record the sale deed executed in favour of Sh. Rame in respect of the plot No. 280/1. The plaintiff was directed to take appropriate steps to implead new owner namely Sh. Rame. The plaintiff filed application under Order 1 Rule 10 CPC to implead Sh. Rame as party in the suit. On the said application, in the order dated 27.7.2013, Ld. Predecessor of this Court observed, "Perusal of the record reveals that vide order dated 29.03.2010, this Court observed that Shri Rame is a necessary party to the suit and thereafter, plaintiff moved an application for impleading him on record. Though, the formal order was not passed, however in terms of the order dated 29.03.2010, Shri Rame was impleaded as a defendant".
5. The plaintiff also filed an application under Order 22 Rule 4 CPC for bringing on record the legal heirs of deceased defendant No. 2 Sh. Rame and a separate application under Order 1 Rule 10 CPC was filed to implead Sh. Rajpal, son of Sh. Rame as defendant No. 3 in the suit. The application under Order 22 Rule 4 CPC was allowed vide order dated 22.3.2013. The application under Order 1 Rule 10 CPC was allowed vide order dated 27.7.2013 and Sh. Rajpal was directed to be impleaded as defendant No. 3. All the legal heirs of deceased defendant No. 2, Sh. Rame except Sh. Rajpal were proceeded exparte vide order dated 3.2.2014.
Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 7 of 256. The defendant no. 3 / also LR of defendant no. 2 has filed the written statement taking following defences: 6.1. The suit property was purchased by father Sh. Rame in the year 2006 vide registered sale deed. The said property was purchased by the defendant no.3 from his father by way of sale deed dated 30.10.2006. The defence of defendant is same as that of defendant no.1 Mahender Singh. The written statement filed by the defendant no. 1 shall be treated and read as written statement of defendant Rajpal as well.
7. The plaintiff has filed separate replications to the written statements of the defendants No.1 Mahender Singh and No. 3 Rajpal wherein he has reiterated the averments made in the plaint and denied the allegations made in the written statements.
8. On completion of pleadings, following issues were framed by the Ld. Predecessor of this Court on 19.09.2014 for consideration :
1. Whether the matter in issue in dispute in present case stands adjudicated in terms of the dismissal of the revision petition of the plaintiff ? OPD.
2. Whether this Court has jurisdiction to the present suit ? OPP.
3. Whether there is no locus standi in favour of the plaintiff to file the present suit against the defendant no. 1 ? OPD.
4. Whether the suit is barred by limitation ? OPD.
5. Whether the suit is barred by the provisions of Delhi Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 8 of 25 Land Reforms Act ? OPD.
6. Whether the suit is bad for non joinder / misjoinder of the necessary parties ? OPD.
7. Whether there is no cause of action in favour of the plaintiff ? OPD.
8. Whether the gali / passage which is the subject matter of the present suit is a public way ? If so, effect thereof. OPD.
9. Whether the plaintiff is entitled to declaration as prayed for in the plaint ? OPP.
10. Whether the plaintiff is entitled to the mandatory injunction as prayed for ? OPP.
11. Whether the plaintiff is entitled to the permanent injunction as prayed for ? OPP.
12. Relief.
9. The parties were then called upon to lead their respective evidence. The plaintiff examined herself as PW1 and tendered her evidence by way of affidavit Ex. PW1/A wherein she has reiterated the averments of the plaint. PW1 relied upon the following documents : i. Four site plans as Ex. PW1/1 to Ex. PW1/4.
ii. Aks Sizra as Ex. PW1/6.
iii. Certified copy of order dated 08.07.2005 as Ex. PW1/7. iv. Order dated 02.12.2005 as Ex. PW1/8.
Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 9 of 25v. Khasra Khatoni of khasra no. 280 as Ex. PW1/9.
vi. Report of Halqa Patwari as Mark PW1/10.
vii. Photographs as Ex. PW1/11 (colly).
10. The plaintiff examined hers soninlaw Sh. Subrati as PW2 who tendered his evidence by way of affidavit Ex. P2.
11. The plaintiff examined Sh. Ikrammuddin, relative of the plaintiff, as PW3 who tendered his evidence by way of affidavit Ex. PW3/A.
12. The plaintiff did not examine any other witness and plaintiff's evidence was closed vide order dated 02.05.2016.
13. The defendant no. 3 Sh. Raj Pal examined himself as DW1 who tendered his evidence by way of affidavit as Ex. D1/A. DW1 has relied upon the documents i.e. Will dated 23.07.1999 executed by Sh. Dharam Singh, GPA dated 23.07.1999 executed by Sh. Dharam Singh in favour of Sh. Rame, sale deed dated 30.10.2006 executed by Sh. Rame in favour of Sh. Raj Pal as Ex. DW1/1 (colly) and site plan as Ex. DW1/2 which is already Ex. PW1/4.
14. The defendant No.3 also examined Sh. Dharam Pal, resident of Village Sannoth, as DW2. DW2 has stated that he is living in village Sannoth since birth. The SDM had taken action against the plaintiff and removed her illegal encroachment.
15. The defendants did not examine any other witness and defendant's evidence was closed vide order dated 15.07.2016.
16. All the witnesses were cross examined by the respective counsels for the opponent. Parties were then called upon to advance their final Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 10 of 25 arguments in the matter.
17. I have heard the arguments on behalf of the parties and have perused the case file. Written arguments filed on behalf of the plaintiff and defendant No. 3 are also perused and considered. My issuewise findings are as follows :
18. ISSUE NO. 1 : Whether the matter in issue in dispute in present case stands adjudicated in terms of the dismissal of the revision petition of the plaintiff ? OPD.
19. The onus to prove this issue was placed upon the defendant. The defendant has contended in the written statement that dispute in respect of the subject matter of the suit has been decided by the Hon'ble SDM, Alipur against the plaintiff and the appeal filed by the plaintiff against the order of Hon'ble SDM before the Ld. Sessions Judge was also dismissed. The revision petition filed against the order dated 2.12.2005 before the Hon'ble High Court was also dismissed against the plaintiff and therefore, the present suit is liable to be dismissed.
20. Ld. Counsel for the plaintiff has argued that the dispute involved in the present case has not been adjudicated upon finally and therefore, this Court has jurisdiction to entertain and decide the issues involved in the suit.
21. I have considered the submissions of Ld. Counsels for the parties and perused the record.
22. The plaintiff has filed the present suit in respect of a portion measuring 120 sq. yds in khasra no. 280. In the crossexamination, the plaintiff has admitted that she has filed the present suit in respect to Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 11 of 25 passage. She has also admitted that in the year 1988, an order was passed by the Ld. SDM, Alipur regarding the passage. She has also admitted that she was directed by the SDM to remove the Gandasa. She has also admitted that she had filed appeal before the Sessions Court against the order of Ld. SDM. She has also admitted that her claim made before the Hon'ble High Court of Delhi was not allowed. She has also admitted that the proceedings before Sessions Courts and Hon'ble High Court were relating to the passage in dispute.
23. The order of Ld. SDM, Ld. Sessions Court and order passed by Hon'ble High Court are on record. The order dated 08.07.2005 passed by the SDM, Narela in matter titled as "Dharm Singh Vs. Chandro" is Ex. PW1/7. Vide said order, Ld. SDM held as under : "However, it is also true that a passage exists on the northern side of the plot, though it may not found place in the revenue record. It is a part of this passage which has been encroached upon by the present Respondent. The then SDM during spot inspection on 21.2.88 had arrived at the conclusion that the obstruction caused by the Respondent was a public nuisance and a direction was therefore given to her to remove the same. It is thus clear that the passage which exists on the north of plot no. 280/1 has been obstructed by the Respondent by placing a Fodder Cutting Machine, "Gandasa" and by erecting a temporary wall around it. The mere fact that this passage does not exist in the revenue record would not vitiate the present proceedings since the fact remains that passage exists and the same is being used by the public at large. Therefore, the Conditional order dt. 9.7.2001 is made absolute".
24. The appeal filed by the plaintiff against the order of Ld. SDM Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 12 of 25 was decided by the Ld. Sessions Judge vide order dated 02.12.2005 which is Ex. PW1/8. Ld. Sessions Court has also held, "Ld. Trial Court has also considered the fact that a passage on the northern side also exists though not shown in the revenue record. It has also been considered by the Ld. Trial Court that the passage to plot No. 280/1 is through Khasra No. 287. It does not mean that there cannot be two passages to one plot. Coming to the contention of the existence of plot No. 280/1 as a single unit or two units, the contention does not hold water. The passage on its northern side even if does not appear in the revenue record, it exists".
25. The petition filed by the plaintiff before Hon'ble High Court of Delhi, against the order passed by the Ld. Sessions Court, was also disposed of vide order dated 16.11.2006. In the said order, Hon'ble High Court has observed as under: "The order passed by the learned Additional Sessions Judge on 02.12.2005 in Criminal Revision Petition 443/2005 has already been complied with by the petitioner. As such nothing further needs to be done in this petition. The other disputes between the petitioner and the respondent No. 2 are of a civil nature, which they shall agitate before a different forum. The petitioner is at liberty to initiate any proceeding that is available to him under law. If a civil dispute is raised by either party, the same shall be disposed of without recourse to the criminal proceedings".
26. It is clear from the testimony of the plaintiff that the dispute before the Ld. SDM, Ld. Sessions Court and Hon'ble High Court was in respect of encroachment on portion shown as ABCD in the site plan.
Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 13 of 2527. In the present suit, the plaintiff has contended that she is the owner of the portion mark ABCD in the site plan Ex. PW1/1. She has also alleged that the defendant had constructed a boundary wall from point A to D and D to C. A careful perusal of the order of Ld. SDM and Ld. Sessions Court would show that the order was passed only in respect of removal of encroachment. There was no dispute in respect of alleged construction of boundary wall / pucca wall by the defendant in portion ABCD. Therefore, this Court holds that the matter is dispute in the present case i.e. alleged illegal construction by the defendant, has not been adjudicated upon by the dismissal of the revision petition filed by the plaintiff. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
28. ISSUE NO. 2 : Whether this Court has jurisdiction to the present suit ? OPP.
29. ISSUE NO. 5. : Whether the suit is barred by the provisions of Delhi Land Reforms Act ? OPD.
30. Issue no. 2 and 5 are taken together as both issues require common discussion of law and facts. The onus of proof of issue no.2 was placed upon the plaintiff and the onus of proof of issue no. 5 was placed upon the defendants.
31. The defendant has taken objection in the written statement that this Court has no jurisdiction as the subject matter of the suit is governed by the Delhi Land Reforms Act and this Court has no jurisdiction to entertain the suit. Ld. Counsel for the defendant has argued that the suit property falls in Lal Dora and therefore, the suit is Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 14 of 25 not maintainable before this Court and only the Revenue Authorities have jurisdiction under Delhi Land Reforms Act to adjudicate upon the issues involved in the suit.
32. On the other hand, Ld. Counsel for the plaintiff has argued that the property in dispute is situated within the Old Lal Dora Abadi and the provision of DLR Act is not applicable to Old Lal Dora Abadi. Therefore, this Court has jurisdiction to try the present suit.
33. I have considered the submissions of Ld. Counsel for the parties and perused the record.
34. It is clear from the pleadings and testimony of the plaintiff that the portion in dispute falls in Lal Dora. The plaintiff is seeking relief of declaration that she be declared as owner of land shown as ABCD in the site plan Ex. PW1/1. She has also prayed for relief that the order dated 08.07.2005 of the Ld. SDM and order dated 02.12.2005 of the Ld. Sessions Court be declared as null and void.
35. It is admitted case of the plaintiff that she has challenged the order of Ld. Sessions Court before the Hon'ble High Court and Hon'ble High Court disposed of the application as the plaintiff herein complied with the order of Ld. Sessions Court. Once the plaintiff has challenged the order before the Ld. SDM before the Ld. Sessions Court and order of Ld. Sessions Court before the Hon'ble High Court, she can not be permitted to challenge the orders before this Court. Therefore, the second prayer of prayer clause (A), that order of Ld. SDM and Ld. Sessions Court be declared as null and void, can not be granted by this Court.
Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 15 of 2536. Now coming to first prayer of prayer clause (A). The plaintiff has prayed that she be declared as owner of the portion in dispute. It is settled position of law that declaration of rights/title in respect of Lal Dora land cannot be granted by a Civil Court unless the issue in this regard is framed by the Revenue Court and referred to Civil Court.
37. In the matter of Hatti Vs. Sunder Singh, AIR 1971 (2) SCR, the Hon'ble Supreme Court of India has held that if a question of title is raised in the application for declaration of bhoomidhari rights, that question will then be referred by the Revenue Assistant to the Civil Courts but a party wanting to raise such a question of title in order to claim bhumidhari rights cannot directly approach the Civil Courts. The Bar of Section 185 read with Section 186 of the Delhi Land Reforms Act will come into picture when the question of title is raised in an application before the Revenue Assistant for declaration of bhumidhari rights.
38. Hon'ble High Court of Delhi in Subhadara vs Surender Singh (2016) 229 DLT 188 has held that The Delhi Land Reforms Act, 1954 applies even to the land situated within lal dora and extended lal dora.
39. Therefore, in view the discussion hereinabove and also in view of aforesaid judgment of Hon'ble Courts, this Court holds that the suit/relief of the plaintiff for declaration of ownership rights of Lal dora property or extended Lal Dora property is barred under the provisions of Delhi Land Reforms Act.
40. However, record show that the plaintiff has also prayed for relief Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 16 of 25 of permanent and mandatory injunction from the Court. The relief of permanent and mandatory injunction can be claimed from a Civil Court only and therefore, the suit in respect of relief of permanent and mandatory injunction is held to be maintainable before this Court. Accordingly, both issues are partly decided in favour of the plaintiff and against the defendants.
41. ISSUE NO. 3. : Whether there is no locus standi in favour of the plaintiff to file the present suit against the defendant no. 1 ? OPD.
42. The onus of proof of this issue had been placed upon the defendant. The defendant No. 1 has contended in the written statement that the plaintiff has no locus standi to file the present suit against defendant Mahender Singh as his father had already sold the suit property and he has no concern with the suit property. Ld. Counsel for defendant has argued that the Gaon Sabha is the owner of land in dispute and the plaintiff has no locus standi to file the present suit.
43. This Court has considered the contention raised by the defendant and perused the material on record.
44. The plaintiff has made specific allegation in the plaint that the defendant had constructed a pucca wall between point A to D and D to C and had illegally and unlawfully occupied the portion ABCD shown as red in the site plan and the defendant had no right to raise any construction which has been held to be a public passage by the Ld. SDM.
45. The averments in the plaint shows that the plaintiff has made Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 17 of 25 specific allegations against the defendant No. 1 also. Therefore, this Court holds that the plaintiff had a locus standi to file the present suit against the defendant No. 1 as well. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
46. ISSUE NO. 4. : Whether the suit is barred by limitation? OPD.
47. The onus of proof of this issue had been placed upon the defendant. Ld. Counsel for the defendant has argued that the suit filed by the plaintiff is barred by law of limitation. The plaintiff has failed to prove that the defendant has encroached upon any part of the suit property which is public passage and therefore, the suit is liable to be dismissed.
48. I have considered the submissions of Ld. Counsel for the defendant and perused the record.
49. In the plaint, the plaintiff has alleged that after removal of fodder cutting machine, walls and pucca room, the defendant had constructed a pucca wall between point A to D and D to C shown as red in the site plan and the defendant had no right to raise any construction on the said portion ABCD. The plaintiff has also alleged that the portion Mark ABCD, which has been declared as passage by the order of SDM, was private property owned by her and her husband. Therefore, the plaintiff be declared as owner of portion mark ABCD and defendant be directed to remove the construction of pucca wall and possession be restored to the plaintiff.
50. The SDM had passed the order on 08.07.2005 and the order was Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 18 of 25 passed by the Ld. ASJ on 02.12.2005. The plaintiff has not mentioned any date of alleged construction in the plaint. Be that as it may. As per the allegations in the plaint, the defendant had allegedly raised pucca wall in disputed portion fater the order of Ld. SDM. Therefore, it is taken that the alleged construction was started in the year 2005. The present suit has been filed in the year 2007. There is nothing on record to show that the suit of the plaintiff is barred by law of limitation. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
51. ISSUE NO. 6. : Whether the suit is bad for non joinder / mis joinder of necessary parties ? OPD.
52. The onus of proof of this issue had been placed upon the defendant. Ld. Counsel for defendant has argued that the father of the defendant No. 1 had already sold the suit property and at present, the defendant No. 1 has no concern with the suit property. Therefore, the present suit is bad for non joinder and mis joinder of necessary parties.
53. In the written statement, the defendant No. 1 has contended that the father of the defendant had already sold the suit property and at present, the defendant has no concern with the suit property. The Will executed by Sh. Dharam Singh, father of defendant No. 1, in favour of Sh. Rame is Ex. DW1/1.
54. In the affidavit, DW1 Rajpal has also stated that on 30.10.2006, he had purchased the property measuring 5 biswa out of Khasra No. 280/1 situated in Extended Lal Dora of Village Sanoth from his father Sh. Rame and since then, he is in possession of the land. The sale deed Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 19 of 25 executed by Sh. Rame in favour of DW1 Rajpal is Ex. DW1/1.
55. No doubt, the documents filed by the DW1 shows that the defendant No. 1 is not the owner of plot No. 280/1. However, the plaintiff, in the plaint, has categorically alleged that the defendant had constructed a pucca wall between point A to D and D to C and had illegally occupied the portion shown as ABCD in the site plan. Therefore, it can not be said that defendant No. 1 Mahender Singh is neither necessary nor proper party to the suit. Therefore, this Court holds that the defendant no.1 is a proper party in the present suit in whose absence, the matter in controversy can not be effectively and finally adjudicated upon. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
56. ISSUE NO. 7. : Whether there is no cause of action in favour of the plaintiff ? OPD.
57. The onus of proof of this issue had been placed upon the defendant. Ld. Counsel for the defendant has argued that the issue in respect of passage has already been decided by Ld. SDM and Ld. Sessions Court and therefore, the plaintiff had no cause of action to file the present suit.
58. I have considered the submissions of Ld. Counsel for the defendant and perused the record.
59. The plaintiff has filed the present suit alleging that the defendant is the owner and in possession of the plot in khasra no. 280/1 measuring 250 sq. yds (05 Biswas) situated in extended Lal Dora and rasta bearing khasra no. 287 was provided to the said plot towards Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 20 of 25 south western side. The part portion of the plot was sold to one Sh. Ram Swaroop by the father of the defendant which adjoinded the rasta bearing khasra no. 287 and the remaining portion left with Late Sh. Dharm Singh had no rasta / passage for the use and enjoyment of remaining portion of 280/1. The Ld. SDM, on the petition of Sh. Dharm Singh, had declared the private property of the plaintiff as a public passage. Defendant, in collusion with the police official and officials of the SDM, have got the fodder cutting machine removed and the wall demolished. After removal of fodder cutting machine and wall, the defendant had constructed pucca wall between A to D and D to C and illegally occupied the portion of the plaintiff. Therefore, the suit has been filed.
60. The material on record prima facie shows that the plaintiff had a cause of action to file the suit against the defendants. Accordingly, this issue is decided in favour of the plaintiff and against the defendants.
61. ISSUE NO. 8. : Whether the gali / passage which is the subject matter of the present suit is a public way ? If so, effect thereof. OPD.
62. The onus of proof of this issue had been placed upon the defendant. Ld. Counsel for the defendant has argued that SDM had categorically held that the passage exists and the same is a public passage and therefore, the gali be held to be a public way.
63. I have considered the submissions of the parties and have perused the material on record.
64. The Ld. SDM in the order dated 8.7.2005 has held as, "The mere Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 21 of 25 fact that this passage does not exist in the revenue record would not vitiate the present proceedings since the fact remains that passage exists and the same is being used by the public at large". Ld. Sessions Court has also held that the passage on its northern side even if does not appear in revenue record, it exists.
65. Defendants have examined Sh. Dharam Singh, resident of village Sannoth, as DW2 to prove that the portion is dispute is a public passage. DW2 has stated that along with defendant Rajpal, other villagers also use the same rasta to reach the house of Rajpal Singh. The witness was shown the site plan Ex. PW1/4 (also Ex. DW1/2). The witness has stated that the portion ABCD is the portion where the plaintiff had put gandasa, buffaloes and the Ld. SDM got the same removed. Suggestion was given to DW2 that the portion ABCD of Ex. PW1/2 belonged to the plaintiff and he has categorically stated that it was a rasta and the same does not belong to the plaintiff.
66. In the testimony, DW1 Rajpal has also stated that the property in dispute is on the rasta of old Lal Dora and the rasta of old Lal Dora is used by all villagers and not only by him.
67. It is clear from the testimony of the DWs that the portion ABCD of site plan Ex. PW1/4 is used as rasta by defendant Rajpal and other villagers to reach the house of Rajpal. Therefore, it can not be said to be private property of either defendant Rajpal or plaintiff Chandro and neither the plaintiff nor the defendants can claim the said portion to be their exclusive or private property. In these circumstances, this Court holds that the portion ABCD of site plan Ex. PW1/4 is a public way.
Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 22 of 25Accordingly, this issue is decided in favour of the defendants and against the plaintiff.
68. ISSUE NO. 9. : Whether the plaintiff is entitled to declaration as prayed for in the plaint ? OPP.
69. The onus of proof of this issue had been placed upon the plaintiff.
70. The plaintiff has claimed that she is owner of portion ABCD shown as red in the site plan. She has relied upon the Khatouni Paimaish Ex. PW1/9 in support of her claim.
71. Perusal of the Khatouni Pamaish would show that Chandro W/o Sultan is shown as Asami and Gram Sabha is the Bhoomidhar of the khasra no. 280. An Asami can not claim herself to be the owner / Bhoomidhar of the land in dispute. Further, in view of findings of this Court on issue no. 2 and 5, this Court holds that the plaintiff is not entitled to relief of declaration as prayed for. Accordingly, this issue is decided against the plaintiff and in favour of the defendants.
72. ISSUE NO. 10 : Whether the plaintiff is entitled to the mandatory injunction as prayed for ? OPP.
73. The onus to prove this issue was placed upon the plaintiff. The plaintiff has prayed for relief of mandatory injunction thereby directing the defendants to remove pucca structure constructed on the portion ABCD in the site plan and they be also directed to restore the possession of the red portion to the plaintiff.
74. The plaintiff has alleged that the defendant had constructed a pucca wall between point A to D and D to C and had illegally and Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 23 of 25 unlawfully occupied the portion shown as red in the site plan. As per the petition under Section 133 Cr.P.C, the portion shown as red in the site plan was part and parcel of the common public passage and the passage, being a public passage, the defendant has no right to raise construction by raising pucca walls.
75. The plaintiff has examined herself as PW1 to prove that the defendant had raised pucca wall in the portion ABCD shown as red in the site plan, Ex. PW1/1. Apart from oral averments, the plaintiff has not placed any material to show that the defendant had raised pucca wall as alleged. The four photographs filed by the plaintiff, Ex. PW1/11 (Colly.) would show that there is a constructed house. There is nothing to show that the walls shown in the house are the pucca walls allegedly constructed by the defendant at portion ABCD.
76. PW2 Subrati, in his affidavit Ex. P2, has also nowhere stated that any of the defendants had raised any construction in the portion ABCD. Similarly, PW3 Ikramuddin has also nowhere stated that the defendants have raised any construction in the portion ABCD shown as red in the site plan Ex. PW1/1.
77. In view of discussion hereinabove, this Court holds that the plaintiff has failed to prove, on the balance of probability, that the defendants have raised any construction in the portion ABCD shown as red in the site plan. Therefore, the plaintiff is not entitled to the relief of mandatory injunction as prayed for. Accordingly, this issue is decided against the plaintiff and in favour of the defendants.
78. ISSUE NO. 11 : Whether the plaintiff is entitled to the Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 24 of 25 permanent injunction as prayed for ? OPP.
79. The onus to prove this issue was placed upon the plaintiff. The plaintiff has prayed for relief of permanent injunction that the defendant be restrained from dispossessing the plaintiff from the suit property as shown ABCD in the site plan, Ex. PW1/1. In the plaint itself, the plaintiff has admitted that the portion marked ABCD has been held to be a public passage by the SDM and by the Ld. ASJ. It is also clear from the pleadings that the fodder cutting machine / gandasa belonging to the plaintiff has been removed from the portion ABCD. Thus, it is clear from the pleadings and the testimony of the plaintiff that she is not in possession of portion ABCD shown as red in the site plan, Ex. PW1/1. Therefore, the plaintiff is also not entitled to the relief of permanent injunction as prayed for. Accordingly, this issue is decided in favour of the defendants and against the plaintiff.
80. RELIEF.
81. In view of findings of this Court on aforesaid issues, this Court holds that the plaintiff is not entitled to any relief. The suit of the plaintiff is dismissed. Parties to bear their own costs. Nothing discussed in this judgment shall amount to expression of opinion on the right/title of defendants in the disputed portion. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance.
Pronounced in the open court (NEHA)
on 28th February, 2017 Civil Judge09, Central
Tis Hazari Courts, Delhi
Suit No. 98460/16 Smt. Chandro Vs. Mahender Singh & Ors. Page 25 of 25