Delhi District Court
Trilok Chand Sharma vs Sh Suresh Kumar on 13 May, 2022
IN THE COURT OF SH SACHIN JAIN, ADDL. DISTRICT
JUDGE - 02, SOUTH WEST DISTRICT, DWARKA COURTS,
NEW DELHI
CS DJ ADJ No.15758/16 (90/15)
CNR No.DLSW010011132015
IN THE MATTER OF:
1. Trilok Chand Sharma
S/o Shri Hardwari Lal Sharma,
R/o C-165, Hari Nagar Clock Tower,
New Delhi-110064
... Plaintiff
Versus
1. Sh Suresh Kumar
S/o Sh Ran Singh
2. Sh Raj Bir Singh
S/o sh Narian Singh
Residents of:
Both R/o Plot No. 88
Village Badu Sarai
P.O Chhawla, New Delhi ... Defendant
Date of institution of suit: 29.12.2007
Date of judgment reserved: 30.04.2022
Date of pronouncement of judgment: 13.05.2022
JUDGMENT
1. The present suit is filed by the plaintiff for the relief of possession, damages and permanent injunction against the defendant.
Page No. 1/522. Briefly, stated it is the case of the plaintiff that he purchased 7 bighas of land bearing khasra No. 19/13/1 min.(4-03) and 19/14(3-0) sitauted in the revenue state of Village Badusarai,Tehsil Najafgarh, Delhi vide registered sale deed , registered at Srl. 10381 in Addl. Book No1. Vol. No. 4725, page nos. 131 to 133 dated 02.12.1985 from Sh, Ran Singh and Narain Singh and after the purchase of the said land the same was mutated in his name in the revenue records vide khatoni no. 9/17 min. year 1987-1988.
3. It is further the case of the plaintiff that he kept on sowing the rabi and khariff crops on the suit land, since its purchase either himself or through other persons and continued in actual, physical and cultivatory possession of the said land. It is further stated that with the passage of time due to financial requirement and needs the plaintiff sold a portion of the land.
4. It is further the case of the plaintiff that the property dealer started raising residential colonies in the area and therefore the portion of the land earlier sold by the plaintiff also stand converted into residential structures by the purchaser of that land.
5. It is further the case of the plaintiff that the consolidated proceedings were started in the village Badusari in the year 1996 but due to pending litigation of the villagers, it effectively started in the year 2004 and completed in the month of March-April 2005 and in the consolidation proceedings the land of the plaintiff was converted into plots bearing No. 88 to 99 forming part of extended lal dora abadi in the revenue estate of village Badusari Tehsil Najafgarh, Delhi and out Page No. 2/52 of the said plots the plaintiff sold the plots bearing Nos. 89,90,92,93,95 and 99 to the respective buyers who are in possession of the same by raising super structure therein and the remaining plots bearing Nos. 88,91,94,96,97 and 98 are in the sole and absolute ownership of the plaintiff.
6. It is the case of the plaintiff that some villagers in order to grab the valuable properties of the plaintiff colluded with official of the revenue and got mentioned there name in the kayami in the year 2005 by taking benefits of absence of the plaintiff. It is further case of the plaintiff that the family members and friends of the plaintiff raised the boundary wall and constructed one room and temporary tin shed in plots Nos. 88,91,94 and 97 situated in the revenue state of Village Badusarai.
7. It is the case of the plaintiff that the defendant illegally and unlawfully trespassed into plot No. 88 measuring 150 sq yds (0-3) biswas on the basis of some forged, fabricated and manufactured documents and is claiming to be owner of the above plot No. 88. The plaintiff in the August 2005 visited the suit plot, the plaintiff was shocked and surprised to know that some cows and some milching animals are tied under the tin shed in the suit property and some clothes were spread for drying beside this some garbage and dunk was lying in the corner. The plaintiff further submitted that he was shocked to see that the other three plots /property have also been illegally, unlawfully trespass by some other persons and using them as place of tethering the cows and buffaloes. When he contacted the defendants Page No. 3/52 and requested the defendants to remove the animals, however, the defendant in collusion with his family members and anti social elements alongwith Sh. Kundan Lal, Phool Kumar, Mahender Singh, Smt Suresh Devi, Ishwar Singh and Raghubir Singh attempted to manhandle and humiliate the plaintiff and extended threats of killing the plaintiff.
8. It is further the case of plaintiff that he made complaints to the police on 13.11.2005 and therefore number of complaints in this regard were made to the police and ultimately he filed a complaint case against the defendants and others on 22.12.2006 and the same is pending adjudication in the court of Sh Sanjeev Kumar, MM, Patiala House, New Delhi which is fixed for 13.10.2007.
9. It is further the case of plaintiff that on 23.07.2006 he visited the defendant and requested him to remove his belongings and to hand over the vacant and peaceful possession of the said plot, on which the defendant requested the plaintiff to give six month period for vacating and handing over the plot to the plaintiff and the plaintiff considering the problem of the defendant agreed for the same subject to payment of Rs 1000/- per month as damages for which the defendant agreed.
10. It is further stated that on 07.01.2007 the plaintiff through respected persons of the village requested the defendant to vacate the premises, however, the defendant kept on lingering the matter. He again visited the defendant and other unauthorized occupants of other plots on 11.02.2007, 31.03.2007 and 12.05.2007 but in vain. Ultimately, the plaintiff served a legal notice upon the defendant Page No. 4/52 through his advocate on 14.07.2007 sent through speed post thereby calling upon the defendant to hand over the possession of the suit plot No. 88 and to pay damages @ Rs 1000/- per month for the last three years within a period of 15 days from the date of notice but the defendant failed to abide by the legal notice. Hence, the present suit.
11. By way of present suit, the plaintiff prayed for the relief of possession, directing the defendant to handover the vacant possession of plot No. 88 village Badusarai specifically shown in red color in the site plan annexed with the suit and also for relief of damages @ Rs 1000/- per month for illegal use of suit property for the last three years from the date of filing of the suit with further directions to pay Rs 1000/- per months as mesne profits during the pendency of the suit until the satisfaction of the decree with further relief of permanent injunction.
12. Summons for settlement were issued to the defendants.
13. The defendant in his written statement had taken the preliminary objections regarding the maintainability of the present suit and also contended that the plaintiff has not come before this court with clean hands and is in guilty of suppressing the true material and correct facts.
14. It is the version of the defendants that they had jointly purchased the land admeasuring 206 (sq. yds) comprising kh. No. 19/14 situated in village Badusrai, New Delhi from the plaintiff for consideration and the plaintiff executed agreement to sell, GPA, receipt and affidavit etc all dated 22.08.1997 and on the same day, the Page No. 5/52 plaintiff delivered actual physical possession of the said plot to the defendant and the defendant also constructed a boundary wall upto 8 feet height and stated using the same for the usher of animals and built Bittodas and he is in actual physical possession of the suit property without any disturbance from any corner and the plaintiff since the date of purchase and therefore he is the legal and true owner of the same and using the same. It is further the contention of the defendant that he had constructed the above said plot was within the knowledge of the plaintiff who had been frequently visiting the area where the plot in question is situated and the boundary wall being raised by the defendants.
15. It is further the contention of the defendant that the plaintiff had also filed the Civil suit bearing no. 460/1995 tilted as Trilok Chand Sharma v. Sh Mahender Singh & Ors which is still pending disposal in the court of Sh Naresh Laka, Civil Judge, Delhi and in the said suit the plaintiff on 25.05.2004 filed an affidavit and in the said affidavit the plaintiff had specifically admitted that he had already sold the entire land of Kh. No. 19/14 situated at revenue state of Village Badusari, New Delhi and he also admitted that since then he is not in possession of any part of the land bearing Kh. No. 19/14. The said admission on part of the plaintiff is a judicial admission and in case the plaintiff rescind from the said admission then it would amount to willful contempt of court.
16. It is further the contention of the defendant that in the suit bearing No. 460/95, a site plan which had been filed in the year 1991 Page No. 6/52 by the plaintiff in his examination in chief as exhibit No. PW1/E, wherein it has been shown that the land bearing Kh Nos. 19/13, 19/14 and 19/18 of village Badusarai, different plots have been curved out and in the said site plan the plots which are in possession of Sh. kundan Lal ad-measuring 900 sq yds, Sh. Rattan Singh ad-measuring 2500 sq yds +500 sq yds, Sh. Bhagwan Singh, Col. Dhaiya, road/ rasta, plot ad-measuring 1500 sq yds in possession of Sh. Mahender, Ishwar Singh, Surender, Raghubir and Phool Singh, plot admeasuring 300 sq yds is in possession of Sh. Phool Singh s/o Dhani Ram, plot measuring 500 sq yds in possession of Sh. Balwan Singh, plot measuring 1000 sq yds in possession of Smt. Ram Kumar, plot admeasuring 900 sq yds is in possession of Sh. Kundal Lal, plot admeasuring 500 sq yds is in possession of Sh. Randhir Singh, plot admeasuring 500 sq yds is in possession of Sh. Ranbir Singh, plot admeasuring 200 sq yds is in possession of Sh. Ran Singh are also shown and therefore, in the present plaint the plaintiff has wrongly stated that the defendant has trespass over the suit land in the month of August 2005.
17. It is the case of the defendant that in Village Badusrai the consolidation proceedings are going on since the year 1996. In the land bearing Kh. No. 19/13, 19/14 and 19/18, the plaintiff alongwith his father in law Sh Ram Niwas carved out an unauthorized colony in the year 1990 and on the spot, there was/ is no demarcation between the Khasra No. 19/13 ,19/14 and 19/18 of Village Badusarai, New Delhi and they had sold the entire land to different persons including Page No. 7/52 the answering defendants and all of them had built up their residential houses over the said land. It is further contended by the defendant that the road were also left in the authorized colony in the area 800 sq yds and the said area is fully electrified having pucca road etc., and other civic amenity.
18. It is further contended that adjacent to the land of the plaintiff bearing Kh No. 19/13, 19/14 and 19/18 the land having Kh. No. 11/9, 10,11,12,19,20,24, 19/15,19/22, 23/2,3,3,7,9,10,24/1,2,3,6,7,9 and 44 are situated and unauthorized colony developed thereon which is also having the Community Centre, primary school, DESU Transformer, Water pump,Harijan Chopal and a Barat Ghar. In the said unauthorized colony also plots had been sold to agreement to sell, GPA etc., and therefore, their names have not been entered into the revenue record and in the revenue records are still in the name of the original bhumidars who have sold the plots in the unauthorized colony. In the said unauthorized colony more than 100 families are residing.
19. It is further the case of the defendant that in the consolidation proceedings the houses of the persons residing in the said unauthorized colony came within the phirni of Village Badusarai and the plots wherein the above said persons have built up their residential houses are treated as scheme kabiz in the consolidation proceedings. As in th said area all the facilities are available and because road are already in existence there is no need to cut out the mujrai and the in scheme it is also decided that bhumidhars and non Page No. 8/52 bhumidhars who have there built up house within the phirni of the village that may be treated as a scheme kabiz.
20. It is further contended by the defendant that it is an admitted fact that the plot No. 88 falls in pre consolidation land bearing Kh. No. 19/14 (3-0). It is very pertinent to mention that the plaintiff in suit No. 460/95 had filed an affidavit dated 25.05.2004 in his examination in chief and in the paragraph No. 4 of the affidavit, the plaintiff admitted that he had already sold the entire three (3) bighas land which is falling in Kh. No. 19/14 of Village Badusarai and in his cross examination in the said suit the plaintiff specifically admitted that :-
(a) the plaintiff has lastly visited the land in question in the year 1990;
(b) now the entire land i.e. Kh No. 19/13/1, 19/14 and 19/18 of village Badhusarai is fully built up colony and more than 10 -12 families are residing there;
(c) over the land which the plaintiff had sold out of Kh. No. 19/14 and 19/18 presently a colony is residence and the plaintiff is not in a possession of any part of Kh No. 19/13/1, 19/14 and 19/18;
(d) the plaintiff also admitted that on the spot the land bearing Kh. No. 19/13, 19/14 and 19/18 are adjacent to each other and there is no demarcation of the said Kh. Nos. of the land.
21. It is further the contention the defendant the plots bearing new Kh Nos. 88 to 95, 97 and 99 which were carved out of the land bearing Kh.No. 19/13, 19/14 and 19/18 were already in existing prior to the commencement of the consolidation proceedings as the same are carved out by the plaintiff and his father in law namely, Sh Ram Page No. 9/52 Niwas, said plots were in existence prior to the year 1990 and there were metal road across all the plots and all basis civil amenities provided by the MCD in the year 1995-1996.
22. That during the consolidation proceedings a report was prepared by the consolidation officer with regard to above plots stating there in that all the plots are built up and people are residing in the said houses. It is also stated that those khasra numbers which were built up were treated as scehme kabiz and same is also shown in the books of owner and possession and same may be shown as possessors with their name in the plots possessed by them.
23. That as per report of consolidation staff and Halka Patwari, it is also mentioned that the new Kh. Nos. 96 and 98 are pertaining to the road/ rasta which fall over the Kh No. 19/13, 19/14 and 19/18 and further the case of the defendant that consolidation official also found that in the above said land the colony has already in existence and divided in various plots which were sold to different peoples whose name are recorded in the karwai register after the consolidation and the above said land had been included in lal dora abadi in the village and all the registering houses/ plots were treated as kayami and the occupiers of the said plots were given different numbers which are from 88 to 102 and the numbers 96 and 98 are for rasta.
24. It is the contention of the defendant that as most of the plots were sold by the defendant and his father in law through GPA, Agreement to sell etc therefore, the names of the respective purchasers were not mutated in the revenue records and said land remained in the Page No. 10/52 name of the plaintiff and his father in law in the revenue record. Now the contention of the plaintiff has became malafide and he wants to take the undue benefits of the revenue record which shows his name on the record. It is a settled law of land, that mere entry in the revenue record does not create any right, title or interest of a person.
25. It is further the contention of the defendant that in suit bearing No. 460/95 on 07.11.2001 the defendant alongwith other persons filed an application under Order I, Rule 10 CPC read with Section 151 CPC and in the said application the defendant specifically stated that the defendant had purchased the land measuring 206 sq yds by way of Agreement to Sell, Power of Attorney etc. from the plaintiff and also stated that the defendant is in possession of the said plot and alongwith the said application the defendant also filed the agreement to sell, GPA etc all dated 22.08.1987 executed by the plaintiff in favour of the defendant. However, the plaintiff never challenged the said documents till the filing of the present suit and the suit filed by the plaintiff is not maintainable and hit by provision of Section 41 (h),
(i) and (j) of the Specific Relief Act and therefore, same is liable to be dismissed.
26. In reply on merits the defendant denied all the averments made by the plaintiff in his plaint except to the extent that the plaintiff had purchased the suit property in year 1985 and his name was mutated in the revenue records vide khatoni No. 9/17min 1987-1988 and re titrated the submissions made by him in the preliminary objections as reproduced above.
Page No. 11/5227. It is the submission of the defendant that plot Nos. 88 to 99 are already in existence before the commencement of consolidation proceedings. On 29.07.2005 the consolidation officer also passed an order bearing Resolution No. 22 wherein he treated the plot No. 88 to 99 as kayami and the said resolution plot No. 88 is shown in possession and ownership of the defendant. The passbook issued to the plaintiff has no authenticity the plaintiff has procured the passbook in collusion with the revenue officials.
28. In view of the above facts the defendant prayed for the dismissal of the suit with the exemplary costs.
29. In replication the plaintiff denied the averments of the defendant and reaffirmed the stand taken by him in the plaint and it is submitted by the plaintiff that the suit bearing No. 469/1995 (sic) titled as Trilok Chand Sharma vs. Mahender Singh stands withdrawn on 08.01.2008 with the liberty to file afresh. It is further submitted by the plaintiff that the name recorded by the consolidation officer in the karwai register after the consolidation, the said consolidation proceedings have never been admitted by the plaintiff in respect of which the proceedings are pending before the financial commissioner and as such the report of the consolidation officer is not final. It is further submitted by the plaintiff that the application under Order I, Rule 10 CPC filed by the defendant in suit No. 460/95 was dismissed by the concerned court and he never admitted the execution of alleged documents in respect of suit land (plot) in favour of the defendant.
30. On the basis of the pleadings of parties and the submissions Page No. 12/52 advanced, the following issues were framed vide order dated 10.12.2013:
1) Whether the plaintiff has suppressed the correct and material facts from the court, if so, its effect?
... OPD
2) Whether the plaintiff has already sold the suit property to the defendants? ... OPD
3) Whether this court has no pecuniary jurisdiction to entertain the suit? ... OPD
4) Whether the plaintiff is entitled for decree of possession of the suit property from the defendants?
...OPP
5) Whether the plaintiff is entitled for decree of mesne profits, if so, for what rate and for which period?
...OPP
6) Whether the plaintiff is entitled for decree of permanent injunction, as prayed for?
7) Relief, if any
31. In order to prove his case, plaintiff during his evidence, examined five (5) witnesses in all.
32. The plaintiff entered in witness box as PW-1 and tendered his evidence by way of affidavit Ex PW1/A and reproduced the facts already stated by him in his plaint and relied upon the below mentioned documents, he was cross examined at length by the counsel for the defendant and was discharged:-
Page No. 13/52Sl. No. Description of document(s) IbiExhibit/ Mark No.
1. Sale Deed dated 02.12.1985 Ex.PW1/1(OSR)
2. Revenue report vide khatoni Ex.PW1/2 No.9/17min. Year 1987-88
3. Pass book by consolidation officer Ex.PW1/3 4. Kayami register Ex.PW2/1 5. Site plan Ex.PW1/5
6. Copy of case file of complaint case Mark-A bearing CC No.428590/16 titled Trilok chand v. Kundan Lal before Shri Siddharth Malik, Ld. MM, South West, Dwarka
7. Copy of FSL report dated 29.10.2013 Mark-B and C and 25.05.2014
8. Copy of summoning order dated Mark-D 11.02.2015
9. Legal notice dated 14.07.2007 Ex.PW1/10
10. Postal receipt dated 14.07.2007 Ex.PW1/11 CROSS EXAMINATION
1. Certified copy of evidence by way of Ex.PW1/DX1 affidavit tendered, examination in (Colly.) chief dated 25.05.2004 and cross examination recorded on 26.02.2005, 01.09.2005 and 13.10.2005 in Suit No.1190/16 (460/95)
2. Site plan bearing endorsement of Ex.PW1/DX2 Ex.PW1/E dated 26.02.2005
3. Application under Order I, rule 10, Ex.PW1/DX3 CPC
4. Khasra girdawaries for the year 1995- Ex.PW1/DX2 96, 1996-97, 1997-98, 2000-2001 (Colly) (Khasra No.19/13) and 19/14), 1989-
1990 (Khasra No.19/13/1, 19/14 and 19/18) and 2001-02 (Khasra No.19/18) Page No. 14/52
5. Halqua patwari report, register karwahi Ex.PW1/DX-3 chakbandi and the khatauni of the year (Colly) 1990-91 There is no documents exhibited as Ex.PW1/4, Ex.PW1/6, Ex.PW1/7, Ex.PW1/8 and Ex.PW1/9 as mentioned in evidence by way of affidavit Ex.Pw1/A.
33. PW-2, Rajesh Sharma, Halqua Patwari, Village Badusarai, Tehsil Kapashera, District South West Delhi appeared and proved the Khatauni Pamaish register pertaining to the year 2015-2016 as Ex PW2/A.
34. PW-3 Sh Pamod Kumar Singh, Assistant Ahalmad from the court of Sh Siddharth Malik, Ld. MM, Dwarka Courts, New Delhi has appeared and proved the following documents:
Sl. No. Descripiton of document(s) Exhibit/Mark No.
1. Summoning order dated Ex.PW3/1(OSR) 11.02.20215 passed in CC No.428590/16, PS Najafgarh
2. Investigation report filed by SI Ex.PW3/2(OSR) Veer Singh PS Najafgarh
3. FSL report which consists part of Ex.PW3/3(OSR) Ex.PW3/2
4. Complaint lodged by plaintiff Ex.PW3/4 Trilok Chand under Section 200 Cr.PC bearing CC No.428590/16
35. PW-4 Sh Manish Kanungo, Record room from SDM office Najafgarh, New Delhi appeared and proved the following documents:-
Page No. 15/52Sl. No. Descripiton of document(s) Exhibit/Mark No.
1. Extract of khatoni chakbandi Ex.PW4/A(OSR) pertaining to khata No.14/9min.
2. Extract of register karwahi Ex.PW4/B(OSR) pertaining to kh.No.88 to 99
3. Extract of masavi of village Badu Ex.PW4/C(OSR) Sarai
36. PW-5 SI Veer Singh appeared before this court and proved the documents i.e. certified copy of cross-examnation of PW5 dated 09.01.2017 in CC No.428590/16 and same is Ex.PW5/DX1.
37. Thereafter, plaintiff closed his evidence and matter was fixed for defendant evidence.
38. In order to prove its case defendant examined five witnesses
39. The defendantNo.1 Suresh Kumar entered in witness box as DW-1 and tendered his evidence by way of affidavit Ex DW1/A and relied upon the below mentioned documents, he was cross examined at length by the counsel for the plaintiff and was discharged:-
Sl. No. Descripiton of document(s) Exhibit/Mark No.
1. Certified copy of evidence by Already way of affidavit tendered, Ex.PW1/DX1(Colly.) examination in chief dated 25.05.2004 and cross examination recorded on 26.02.2005, 01.09.2005 and 13.10.2005 in Suit No.1190/16 (460/95)
2. Site plan bearing endorsement of Already Ex.PW1/E dated 26.02.2005 Ex.PW1/DX2
3. Application under Order I, rule Already 10, CPC Ex.PW1/DX3
4. Electricity bills of electricity Ex.DW1/1(Colly) Page No. 16/52 meter installed in the suit property (OSR)
5. Khasra girdawaries for the year Already 1995-96, 1996-97, 1997-98, Ex.PW1/DX4(Colly) 2000-2001 (Khasra No.19/13) and 19/14), 1989-1990 (Khasra No.19/13/1, 19/14 and 19/18) and 2001-02 (Khasra No.19/18)
6. Halqua patwari report, register Already karwahi chakbandi and the Ex.PW1/DX-5(Colly) khatauni of the year 1990-91
7. Photocopies of documents dated Mark-A(Colly.) 11.1.1997 Documents put to the witness during cross examination
1. Certified copy of evidence by Already way of affidavit tendered, Ex.DW1/X6(Colly.) examination in chief dated 25.05.2004 and cross examination recorded on 26.02.2005, 01.09.2005 and 13.10.2005 in Suit No.1190/16 (460/95) and Site plan bearing endorsement of Ex.PW1/E dated 26.02.2005 relied upon by the plaintiff in his plaint
2. GPA, Affidavit, Agreeemnt to Ex DW1/A Sell , receipt which is mark "A' (Colly) by the plaintiff in his evidence by way of affidavit
40. DW-3 Unique Kaushik, Jr. Asst of Financial Commissioner, Commissioner Civil Lines, Delhi appeared in witness box and proved the Patwari report dated 29.02.2007 filed in case No.205/07 before Financial Commissioner Delhi along with copy of register karwahi chakbandi dated 17.02.2007 and copy of khatauni pertaining to the Page No. 17/52 year 1990-1991 and same is Ex.DW3/A(running into 5 pages) (Colly.) (OSR).
41. DW-4 Baljit Singh, tendered his evidence by way of affidavit as Ex DW4/A and deposed as per the lines of the defense of the defendant.
42. DW- 5 Jeet Singh tendered his evidence by way of affidavit as Ex DW5/A and who also depose on the lines of the defense of the defendant. In cross examination he deposed that Rajbir (defendant No.2 herein) had purchased a land of plot of 200 sq yds. He further deposed that he is the inhabitant of the same village and he was aware about the purchase of the land and at what price. He cannot tell about what price Rajbir had purchased the land as rasta was coming under his land so they may have reached to some understanding which he was not aware. He further deposed that the contents of my affidavit are based on the knowledge gathered from the various people from the village. I have no personal knowledge about the transaction. Rest of the contents are not reproduced herein being irrelevant for just decision of the present case.
43. NOTE:- On perusal of file, it is observed that no witness is examined as DW-2 and inadvertently after evidence of DW-1, wrongly the next witness is mentioned as DW-3.
ADDITIONAL FACTS:
44. This court deems appropriate that before giving its issue wise finding some additional facts need to be reproduced for the just Page No. 18/52 decision of this case i.e. Apart from the present suit filed by the plaintiff against the defendant, the plaintiff preferred three other suits regarding the other plots converted after consolidation of Kh. No. 19/13/1 and 19/14, against three other persons the details of the suits is as under:-
(i) Civil suit No. CS DJ ADJ No. 15756/ 2016 titled as Trilok Chand v. Mahender Singh & Ors regarding possession/ other reliefs of plot No. 97 measuring 1550 sq. yards situated at Village Badusarai Delhi. It is also relevant to mention that before filing the above suit, the plaintiff initially filed the suit in the year 1991, for permanent injunction bearing no. 460/1995 against the Mahender Singh and his four brothers from restraining them to interfere in the land measuring 1500 sq yds in Kh No. 19/13/1 on the ground that the defendants are trying to take the forcible possession of the. In the said suit the plaintiff filed the site plan Ex PW1/E showing the possession of certain persons in his property same was confronted to him during cross examination in the present suit, which is admitted by the plaintiff and the same is exhibited Ex PW-1/ DX-2. The plaintiff was also tendered his evidence by way of affidavit dated 25.05.2004 and the plaintiff was cross examined on 26.02.2005, 01.09.2005 and 13.10.2005 in the said suit, the plaintiff was confronted with the said testimony in the present suit during cross examination which is admitted by the plaintiff and the same is exhibited as Ex PW1/DX-1 (Colly) and also confronted with application under Order I, Rule 10 CPC filed by the land holders including the defendants in the present Page No. 19/52 suit as well in the connected suits marked as Ex PW1/DX-3.
(ii) Civil Suit bearing No. - CS DJ ADJ No. 15757/2016 titled as Trilok Chand v. Suresh Devi w/o Sunder Lal regarding possession of plot No. 94 measuring 400 sq. yds situated at Village Badusarai Delhi, and
(iii) Civil Suit bearing No. - CS DJ ADJ No. 15755/2016 titled as Trilok Chand v. Kundan Lal regarding possession of plot No. 91 measuring 900 sq. yds situated at Village Badusarai Delhi.
Examination of the plaintiff as PW-1.
45. Before giving issue wise finding, it is relevant to produce the testimony of the plaintiff who entered the witness box as PW-1 and was cross-examined at length.
46. Plaintiff tendered his evidence by way of affidavit Ex PW1/A wherein he reiterated the stand taken by him in the plaint and is not reproduced for the sake of brevity.
47. In his cross examination the plaintiff admitted that his father-in law Ram Niwas in the year 1985, simultaneously on the same day also purchased the property admeasuring 3 bighas and 5 biswas situated under Khasra No. 19/18 in Village Badusarai. He further admitted that Khasra No. 19/13/1 measuring 4 bighas, Khasra No. 19/14 measuring 3 bigha and Khasra No. 19/18 measuring 3 bigha 5 biswa are adjoining to each other and formed contiguity. He further admitted that no demarcation of the land under Khasra No. 19/13/1, 19/14 and 19/18 has been done till date (20.03.2019, the date of deposition).
Page No. 20/5248. During cross examination he further admitted that plot measuring 2920 sq. yards out of Khasra No. 19/18 measuring 3 bigha 5 biswa was sold to Ratan Singh father of Ishwar Pahlwan on 05.10.1989 and he further deposed that five brothers brought land measuring 1500 sq. yards under Khasra no.19/18 and these five brothers informed my father in law that there is dispute among themselves and they will buy land measuring 2920 sq. yards in the name of their father within Khasra No. 19/18 and they would return him the power of attorney, however, despite purchase of 2920 sq. yards in the name of their father they did not return the power of attorney to my father in law. In the latter part of the cross examination plaintiff admitted that Sh. Ishwar Pahlwan is occupancy and in possession of land ad-measuring 1500 sq. yards in Khasra No. 19/13/1. In the voluntary statement he submitted that Mahender Singh, Ishwar Singh, Phool Singh, Sunder and Rajbir are showing the papers of land under Khasra No. 19/18 signed by Ram Niwas as land under Khasra no. 19/13/1 and all these persons are in forceful occupation of land. The plaintiff further admitted that on the same day when Ratan Singh purchased 2920 sq yds another sale deed of land measuring 1080 sq. yards comprised in Khasra no. 19/18 and 19/13/1 was executed in the name of Smt. Shakuntala w/o of Col. Dhaiya. In voluntary statement the plaintiff submitted that out of 1080 sq. yards, 580 sq yards was from Khasra No. 19/18 and balance 500 sq yds was from Khasra no. 19/13/1. He denied the suggestion that area ad- measuring 750 sq. yards was sold under Khasra no. 19/13/1. In answer Page No. 21/52 to the question put to the plaintiff that when after sale of 2920 sq. yards in favour of Rattan Singh, only land of 330 sq. yards was left under Khasra No. 19/18, how you could sell 580 sq yards under Khasra No. 19/18 to which the plaintiff simply replied that he do not know how much land Ram Niwas sold, he only told me that he had purchased 3500 sq. yards and not 3250 sq yards.
49. In cross examination he further admitted that on 20.06.2002 he sold 400 sq. yards under Khasra No. 19/13/1 to one Angoori Devi r/o Bersari and the possession of the 400 sq. yards land was handed over to her. In voluntary statement plaintiff submitted that land to Angoori Devi was sold under Agreement to Sell and it was written that I will execute the sale deed when she wants to get it registered.
50. In his further cross examination dated 22.03.2019, the plaintiff initially denied about the suggestion that there is rasta opposite to the plot of Mahender and his brothers and Dharambir Singh and Rohtash Singh. However, in voluntary statement he submitted that it is true that there is rasta on both the locations mentioned above. Two plots no. 96 and 98 were given to me during chakbandi and there was no rasta. The five brothers Mahender Singh, Ishwar Singh, Phool Singh, Sunder and Rajbir had taken illegal possession of plot No. 97 and carved out a rasta. He further submitted that plot No. 96 is 250 sq. yards and plot No. 98 is 400 sq. yards. In answer to the question put to him the plaintiff admitted that combined area under plot No. 96 and 98 is more than 1300 sq. yards and both are rastas. He denied the suggestion that Rajbir and Suresh are in possession as owner of land ad- measuring Page No. 22/52 250 sq. yards situated in Khasra No. 19/14. In voluntary statement he submitted that plot No. 88 under their occupation as per chakkbandi pass book is 150 sq. yards. They are in illegal possession of land exceeding 150 sq. yards under Khasra No. 19/14.
51. The plaintiff in his cross examination further admitted that he sold plot No.89 in Khasra No. 19/14 measuring 500 sq. yards to Ranbir Singh s/o Sher Singh. In voluntary statement he stated in the agreement it was written that the sale deed will be registered when the case will become final. At this stage, court question was asked to the plaintiff to tell about the particulars of the agreement stated by him in voluntary statement. In answer to the court question, the plaintiff deposed as follows:
" There is stay order passed by Tis Hazari court with regard to land under Kh No. 19/13, 19/14 though he do not know the exact date of stay but it was somewhere in the year 1991 . He do not remember the date of signing the agreement to sell but the agreement to sell was signed and executed between Ranbir Singh and brother of Ranbir Singh. Both of them entered agreement with regard to 500 sq. yards each. The agreement with both of them was of Rs 50,000/-. I do not signed any and execute any other document other than agreement to sell to Ranbir Singh s/o Sher Singh and Randhir s/o Ram Swaroop with regard to plot No. 89 and 90 respectively under Khasra No. 19/14 and further submitted that he handed over the possession to both of them at the time of signing of agreement.
52. The plaintiff further admitted that he sold plot No. 92 measuring Page No. 23/52 900 sq. yards to Ram Kaur d/o Ichha Ram in Khasra No. 19/14. He further admitted that he had sold plot No. 93 measuring 550 sq. yards to Surender Kumar s/o Mukhtiyar Singh, Balwan Singh s/o Mange and Ravinder Kumar s/o Om Prakash. He denied the suggestion that plot No. 93 is under Khasra no. 19/14. In voluntary statement he stated that the same is in Khasra No. 19/13/1.
53. He further admitted that he has sold plot No. 95 to Rohtas s/o Phool Singh measuring 300 sq. yards and the same is under Khasra No. 19/13/1 and not 19/14.
54. The plaintiff further admitted that it is correct that his land ad- measuring 7 bighas under Khasra No. 19/13/1 and 19/14 neither increased nor decreased after completion of chakkbandi proceedings. He denied the suggestion that after mujrahi his land holding decreased by 800 sq. yards. However, the court made the observations that from Ex PW1/3 the total area land before consolidation proceedings --- Chakkbandi was 6 bighas and 5 biswas and after consolidation proceedings the chakkbandi was 6 bighas 17 biswas.
55. The plaintiff further admitted that he has filed a suit for permanent injunction in the year 1991 in Tis Hazari court. The plaintiff was confronted with the certified copy of evidence by way of affidavit tendered in examination in chief dated 25.05.2004 and cross examination recorded on 26.02.2005, 01.09.2005 and 13.10.2005 in suit No. 1109/06 (new number) and bearing previous suit No. 460/95 dated 16.12.1995/1991 marked as Ex PW1/DX-1 (Colly), site plan bearing endorsement of Ex PW1/E dated 26.02.2005 is marked as Ex Page No. 24/52 PW-1/DX-2 and application under Order I, Rule 10 CPC marked as Ex PW1/DX-3.
56. In answer to the question put to the plaintiff, the plaintiff admitted that the contents of paragraph No. 4 of his evidence by way of affidavit in Ex PW1/DX-1 (colly) are correct, wherein he had stated that he has sold the whole land under Khasra No. 19/14.
57. Attention of the plaintiff was drawn to point C to D of Ex PW1/DX-1 (Colly) wherein he admitted that 380 sq. yards in plot No. 94 was sold to Suresh Devi as admitted by him in his cross examination dated 01.09.2005. In voluntary statement the plaintiff tried to deny the statement on the pretext that the document during recording of his statement was shown to him from a distance and therefore, I wrongly answered it as yes. In his further cross examination he admitted that he has never filed any application before the concerned court seeking the rectification of the error committed during the earlier cross examination on 01.09.2005.
58. The plaintiff in his further cross examination on 29.03.2019 admitted that as on today he is not in possession of any land of suit property and he last visited the suit property in the year 2005.
59. Plaintiff admitted the site plan bearing endorsement of Ex PW1/E dated 26.02.2005 filed by him in suit No. 460/95 filed by him before Tis Hazari Court in the year 1991. He deposed that site plan was prepared by draftsman upon his instructions in Tis Hazari Court. In answer to the question he admitted that in the site plan he has shown a plot of land in the blue colour ink measuring 1500 sq. yards Page No. 25/52 in the names of Sh. Mahender, Ishwar Singh, Surender, Raghubir and Phool Singh, all sons of Rattan Singh as they were in possession at the time of preparation of site plan. He further admitted that in his cross examination Ex.PW-1/DX-1 dated 13.10.2005 that he correctly deposed that the land measuring 1500 square yards is under Khasra no. 19/13/1, subject matter of suit no. 460/1995 was lying vacant till the year 1990. He further admitted that same is plot no. 97.
60. He further admitted that in the site plan a plot ad- measuring 950 sq. yards reflects in the name of Kundan (the defendant herein). In voluntary statement the plaintiff submitted that the land/plot of 950 sq. yards is under Khasra No. 19/14 and presently it is plot No. 91.
61. The attention of the witness is also drawn to point A to point B in the site plan and question was asked to tell who is in possession of the land mentioned at point A to point B. In answer to the question, plaintiff admitted in possession of Suresh Devi. In voluntary statement the plaintiff submitted that at the time when the site plan was prepared the land under point A to point B in site plan was vacant and Suresh Devi w/o Surender on the basis of bogus and forged documents has become occupant/ owner of said land. The plaintiff further admitted that Ran Singh is in possession of plot measuring 200 sq. yards reflecting in the site plan from point C to point D. He further admitted that Ran Singh is the father of one of the defendants (arrayed as defendant in another suit filed along with this suit) namely, Suresh.
62. The plaintiff in his cross examination dated 04.04.2019 shown the General Power of Attorney dated 18.09.1986 filed by the plaintiff Page No. 26/52 alongwith documents in suit titled as Trilok Chand Sharma Vs Mahender Singh bearing CS No. 15756/2016 (old suit No. 460/1995). In answer to the question the plaintiff admitted that it the same GPA about which he had earlier stated to not have been returned by the five brothers i.e. Ishewar Singh and etc to his father in law Ram Niwas. The plaintiff in answer to another question, answered in affirmative that the GPA dated 18.09.1986 and affidavit dated 18.9.1986 was executed by his father in law Ram Niwas. The plaintiff further admitted that the sale deed executed in favour of Shakuntala Devi w/o Col. Dhaiya in which land measuring 1080 sq. yard comprised under Khasra. No. 19/18 and 19/13/1 was sold by him and his father in law and it bears their signatures.
63. In answer to the question that since 1989-1990 constructed houses and boundary walls are present in the entire land in question. The other villagers were in possession of all three Khasra Nos. 19/13/1, 19/14 and 19/18, the plaintiff denied the question and answered as follows:
In the year 1995 the five brothers Mahender and others tried to forcibly occupied the land under Kh No. 19/13/1 measuring 1500 sq yds. Thereafter I lodged a police complaint and also filed a civil suit against them. I was granted stay and there was construction undertaken on land on Kh. No. 19/13/1. There was no construction on land under Kh No.19/13/1 and 19/14. I have no knowledge about Kh No. 19/18.
64. As the plaintiff during his cross examination admitted his Page No. 27/52 evidence by way of affidavit dated 25.05.2004 and cross examination recorded on 26.02.2005, 01.09.2005 and 13.10.2005 in previous suit No. 460/95 marked as Ex PW1/DX-1 (Colly) and the site plan bearing endorsement No. Ex PW1/E dated 26.02.2005 marked as Ex PW1/DX-2, it is relevant to reproduce certain important facts/ contents deposed by the plaintiff in civil Suit No. 460/95.
65. In his evidence by way of affidavit dated 25.05.2004, the plaintiff deposed that he has already transferred one bigha out of Khasra No. 19/13/1 and whole land i.e 3 bighas out of Khasra No. 19/14 and at present left with 3000 sq. yards i.e. 3 bighas in Khasra No. 19/13/1 shown in red colour in the site plan. He further deposed that the site plan is Ex PW1/E was prepared on his instructions and in his presence.
66. In cross examination dated 01.09.2005, the plaintiff deposed that he lastly visited the suit property only in the year 1990. The entire property in dispute is built up and 10-12 families are residing therein. He further admitted that as per aks-sizra Ex PW1/D-1, the Khasra mentioned in the above documents are adjacent to each other and also adjutant to the abadi of village Badusarai. He further admitted that the land measuring 1080 sq. yards was sold to Smt. Shakuntala vide sale deed Mark A out of Khasra no. 19/18 and 19/13/1 and only 150- 200 sq. yards were from Khasra no. 19/13/1 and rest from Khasra no. 19/18. He further admitted that land measuring 496 sq. yards out Khasra No. 19/13/1 was sold to Sh. Varinder Singh and Sh. Ravinder Kumar on 19.05.1988 vide power of attorney Mark 'B'. Land Page No. 28/52 measuring 300 sq. yards out of Khasra No. 19/13/1 to Rohtash and Mahesh s/o of Phool Singh on 31.10.1990 vide documents Mark 'C' (collectively 6 pages). Land measuring 380 sq. yards out of Khasra No. 19/13/1 to Smt. Suresh on 04.06.1994 vide documents Mark 'D' (collectively 6 pages). Land measuring 1000 sq. yards out of Khasra No. 19/14 to Ram Kaur on 18.09.1986 vide documents Mark 'E' (Collectively 6 pages). Land measuring 500 sq. yards out of Khasra no.19/14 to Ranbir Singh s/o Sher Singh vide document Mark 'F' (collectively 6 pages) on 16.04.1987. Land measuring 500 sq yards out of Khasra No. 19/14 to Randhir Singh s/o Ram Swarup Singh vide document Mark 'F' (collectively 6 pages) on 16.04.1987.
67. The plaintiff further deposed that he filed the suit in 1991 and executed the above documents of sale prior to 1991 and even thereafter, he denied his knowledge about the fact whether the purchaser constructed houses on or not. He further admitted that the site plan Ex PW1/E is not correct as per site as upto date, however, in voluntary statement he stated that when the site plan was prepared, it was correct as per site and subsequent constructions have been made thereafter. He further admitted that the particular land which he had sold out Khasra no. 19/14 and 19/18 presently a colony has been in existence. He further admitted that at present (at the time of his deposition in cross examination) he is not in possession of any part of land in Khasra No. 19/13/1 and 19/13/15.
68. In his further cross examination dated 13.10.2005, the plaintiff deposed that he cannot say that in the entire suit land the colony has Page No. 29/52 been developed. He has not seen the suit property after the year 1990. He cannot say that on 01.11.1991 the unauthorized colony has already developed in the suit. He admitted that he and Ram Niwas carved out the unauthorized colony in village Badusarai. He further admitted the fact that "it is correct that to whom I sold the land through GPA, an agreement to sell etc, in those purchaser (sic) purchases the land has not been mutated in the revenue record. It is correct that I am no in possession of any land bearing Kh No. 19/13/1 and 19/14 of village Badusarai".
69. The plaintiff further admitted that the entire construction over the property had held much prior to year 1994. He further admitted that he have never taken any action against the person who had encroached upon my land. He further admitted that it is correct that land which is in possession of the defendants (i.e. Mahender, Ishwar Singh, Surender, Raghubir and Phool Singh) on the spot is having Khasra no. 19/18 of Village Badusarai. It is also correct that the defendants are not in possession of land bearing Khasra no. 19/13/1. The plaintiff further deposed that, I have right only to one plot of Khasra no. 19/14 but I cannot tell the measurement of the said plot.
ISSUE WISE FINDING Page No. 30/52
70. It is the settled law laid down in catena of judgments especially in judgment titled as Anil Rishi v. Gurbakh Singh 2006 (5)SCC 558, wherein it was held that ordinarily the burdened of proof would be on the party who asserts the affirmative of the issue and not the party who denies it.
71. Further in Sebastio Luois Fernendes v. K.V.P. Shastri , 2014 AIR (SC) 977 it was held that burden of proof lies upon a person who has to prove the fact and which never shifts.
72. Therefore, this Court deems appropriate to take up Issue No.4 first.
FINDINGS ON ISSUE NO. 4Issue no. 4:- Whether the plaintiff is entitled for decree of possession of the suit property from the defendants? ...OPP
73. As discussed above, initial burden lies upon the plaintiff to prove his case in affirmative unless the same is admitted by the defendant. In the present case the averments of the plaintiff are denied by the defendant and a case is set up by the defendant that he is the owner of the suit property on the basis of GPA, agreement to sell etc therefore the onus is on the plaintiff to first discharge the burden as pleaded by him to the effect i.e. firstly, he was in possession of the suit plot at the completion of the consolidation proceedings in March- April 2005 and thereafter the same was built by him with the help of Page No. 31/52 his family and friends and it is only thereafter the possession was forcibly with the connivance of revenue officials was taken by the defendant.
74. Firstly, it is relevant to observe that the plaintiff never produced any family member or friend as a witness to prove that he has raised the boundary wall etc. on the suit plot after the completion of consolidation proceedings as pleaded by him in the pleadings.
75. On the basis of the cross examination of the plaintiff in the present suit as well as his examination in chief and cross examination Ex PW1/DX-1 (colly) in suit no. 460/1995, this court comes to the following conclusion :
(a) Plaintiff and his father in law namely Ram Niwas, simultaneously purchased land comprising in Khasra no. 19/13/1, 19/14 and 19/18 at village Badusarai, Tehsil Najafgarh New Delhi. The land under the above Khasra numbers is adjacent to each other and forms contiguity and further no demarcation of the land took place at any point of time.
(b) Plaintiff and Ram Niwas sold the land under their joint share holding by cutting plots to different persons and that too before the commencement of the consolidation proceedings
(c) The colony already came into existence before the commencement of consolidation proceedings and 10-12 families were already residing there.
(d) Plaintiff admitted that he has already sold the land under khasra no. 19/13/1 and 19/14 to different persons by GPA/SA/Agreement before the commencement of consolidation proceedings and as per his Page No. 32/52 deposition last plot was sold in the year 2002 to Angoori Devi.
(e) Plaintiff further admitted that plot no. 96 and 98 measuring 1300 sq. yards is rasta in the colony. The fact also stands corroborated by the testimony of PW-4 namely Manish, kanungo, produced by the plaintiff himself and he deposed that as per Masavi Ex. PW4/C, plot no. 96 & 98 is rasta measuring 1300 sq. yards.
(f) Plaintiff further admitted that the land measuring 1500 sq. yards is under illegal possession of Mahinder Singh & others at least before the execution of sale deed in favour of their father namely Rattan Singh by his father in law Ram Niwas vide sale deed dated 05.10.1989.
(g) Plaintiff further admitted that on the same day when sale deed of land measuring 2920 sq. yds out of Khasra no. 19/18 was executed in favour of Rattan Singh by his father in law, Ram Niwas, Sale deed of land measuring 1080 sq. yards was also executed by him and his father in law in favour of Smt. Shakuntla w/o Col/ Dhayia out of Khasra no. 19/18 and 19/13/1. However, it is the stand of the plaintiff that while under cross examination in civil suit no. 460/1995 that only a area of 150-200 sq. yards is sold from Khasra no. 19/13/1 and the remaining portion is sold from Khasra no 19/18 of his father in law, whereas, during cross examination in the present suit, the plaintiff deposed that land measuring 500 sq. yards is sold out of his Khasra no. 19/13/1 and the balance land is sold from Khasra no. 19/18 of Ram Niwas.
(h) The testimony of the plaintiff is contradictory in both the cross Page No. 33/52 examinations and it stands established from the revenue record of Khatauni of village Badusarai of year 1987-88 relied upon by the plaintiff himself as Ex.PW1/2, wherein, it is specifically mentioned that ownership of 0-15 biswa i.e. 750 sq yds of land under Khasra no.19/13/1 stands transferred in the name of Smt. Shakuntla on the basis of sale deed executed by plaintiff in her favour and this fact also stands corroborated from the admitted fact that Ram Niwas is owner of only 3 bigha-5 biswa land i.e. 3250 sq. yards( 1 bihga=20 biswa, 3 bigha=60 biswa+5 biswa=65 biswa, 1 biswa=50 sq.yds, hence, 65 X50= 3250 sq. yards) and out of 3250 sq. yards he already sold 2920 sq.yds to Rattan Singh, therefore, only 330 sq. yards left under Khasra no. 19/18 under the ownership of Ram Niwas and therefore, after adjusting the land of 330 sq. yards from the Khasra no. 19/18 of Ram Niwas, the remaining land of 750 sq. yards i.e. 15 biswas is sold out of Khasra no. 19/13/1 of the plaintiff to Smt. Shakuntla w/o Col. Dhayia vide registered sale deed dated 05.10.1989.
(i) It is further admitted by the plaintiff that the persons to whom the land is sold through GPA, agreement to sell etc., their names has not been mutated in the revenue record.
(j) On the basis of testimony of the plaintiff, now it has to be seen whether he is in occupation of any land under Khasra no. 19/13/1, 19/14 before the commencement of the consolidation proceedings.
(k) As already observed, land under Khasra no. 19/18 measuring 3250 sq. yards of Ram Niwas on 05.10.89 by regd. sale deeds of even date stands sold to Rattan Singh i.e. 2920 sq. yards and balance 330 sq. yds Page No. 34/52 to Smt. Shakuntla w/o Col Dhayia, therefore no land left under the ownership of Ram Niwas under Khasra no. 19/18 and further it also stands proved that remaining 750 sq. yards of land to Smt. Shakuntla was sold from khasra No. 19/13/1 of the plaintiff after adjustment of 330 sq yds from Khasra No. 19/18 of Ram Niwas. Therefore, the plaintiff left with 3 bigha-05 biswa land under Khasra no. 19/13/1 i.e. 3250 sq. yd and 3 bigha land under Khasra no. 19/14 i.e. 3000 sq. yard and total 6 bigha -05 biswa i.e. 6250 sq. yd under both Khasra nos. ( * in the consolidation pass book of the plaintiff Ex. Pw-1/3, 6 bigha-5 biswa is shown to be under the ownership of plaintiff at the commencement of the consolidation proceedings)
(l) Now, out of 6 bigha-5 biswa land i.e. 6250 sq. yards, the plaintiff as per his own testimony sold the land to following persons as described in the chart.
S.no Date and Land Sold in Khasra No. Name of the Plot no. as
mode of sq. yd purchaser per Cons.
Transaction Proceeding
1. 19.05.88 496 19/13 Virender -----
GPA/AS sale Singh &
Ravinder
Kumar
2. 31.10.90 300 19/13/1 Rohtas s/o 94
GPA/AS sale Phool Singh
3. 04.06.1994 380 19/13/1 Smt. Suresh 91
GPA/AS sale Devi
4. 18.09.1986 900 19/14 Smt Ram 92
Kaur
5. 16.04.1987 500 19/14 Ranbir Singh 89
AS sale s/o sher
singh
6. 16.04.1987 500 19/14 Randhir 90
Page No. 35/52
AS sale Singh s/o
Saroop
7. 20.06.2002 400 19/13/1 Angoori
AS sale Devi
8. ------ 550 19/13/1 (p) Surender 93
19/14(D) Kumar,
Balwan &
Mange ram
9. Alleged 1500 19/13/1 Mahender 97
Illegal Singh &
possession others
10. Admittedly 1300 19/13/1 96 & 98
Rastaa
Total land 6826 sq.
sold yards
76. In view of the chart prepared above on the basis of deposition of plaintiff, interestingly the plaintiff has sold/left in rasta including alleged illegal possession of Mahneder Singh & Ors land measuring 6826 sq. yards, while he was in possession of only 6250 sq. yards of land only, meaning thereby that either the plaintiff had sold land measuring 576 sq. yds in excess by way of GPA/SPA/Sales or the land in the rastaa or in alleged illegal possession of Mehender Singh & others is less, however, in either case the plaintiff at the time of effective commencement of consolidation proceedings in the year 2004 was not in possession of any land and that too when the land in possession of the defendants in not added in the above land.
77. Even during cross examination the plaintiff admitted that it is Page No. 36/52 correct that he is not in possession of any land comprising under Khasra no. 19/13/1 and 19/14.
78. Once, it stands admitted by the plaintiff that no separate demarcation of the khasra numbers was ever done, it becomes immaterial that which plot as alleged by the plaintiff is sold out of which khasra number to the purchasers as the land is sold out by the plaintiff out of the common share holding under his owneship in Kh No. 19/13/1 and 19/14 . The fact will remain firm that by going by the deposition of the plaintiff, no land is left under the title and possession of plaintiff.
79. Further it is also pertinent to mention that the plaintiff during his cross examination in answer to the question put by the counsel for the defendant, the plaintiff admitted as correct that he had sold the whole land under Khasra No. 19/14 in paragraph No. 4 of his evidence by way of affidavit filed in Civil Suit no. 460/95 which is Ex PW1/DX-1 whereas in the present suit the plaintiff himself is claiming that plot No. 88 in possession of the defendant falls under Khasra No. 19/14. From the plain reading of the testimony of the plaintiff, when he himself admitted in CS 460/95 that he is not in possession of any land under Khasra No. 19/14, the contention of the plaintiff that defendant forcibly took possession of the suit property i.e. plot no.88 under Khasra no.19/14 in 2005 is self contradictory and thus, not sustainable.
VALIDITY OF CONSOLIDATION PROCEEDINGS.
80. It is observed that the root cause of the entire controversy in the Page No. 37/52 present case is the consolidation pass book issued by the consolidation officer to the plaintiff at the conclusion of the Consolidation proceedings, wherein the plaintiff is shown to be the owner of new Khasra no. 88 to 99. which is exhibited as Ex PW1/3.
81. On perusal of pass book the land in Kh No. 19/13/1 and 19/14 is shown to be 6 bigha 5 biswa i.e. 6250 sq yds and after the conclusion of consolidation proceedings the Khasra No. 19/13/1 and 19/14 is converted into Kh No. 88 to 99 showing total land as 6 bigha 17 biswa i.e. 6850 sq yds under the ownership of the plaintiff.
82. As already observed, except Smt. Shakuntla, the plaintiff sold the entire land by converting into plots to different persons including the defendant by GPA sale and therefore, the names of the purchasers are not reflected in the revenue record and as such at the commencement of the consolidation proceedings after deducting the 15 biswa land sold to Smt. Shakuntla by way of sale deed, it is rightly shown that the land under the ownership of plaintiff was 6 bigha-5 biswa i.e. 6250 sq. yards, however, it is hard to believe and no plausible reason came forth before the Court during the course of arguments that how land measuring 6 bigha-17 biswa i.e. 6850 sq. yards is shown under the ownership of the plaintiff. Further no witness is produced from the revenue department to explain the increase in area of the land of the plaintiff after the conclusion of the consolidation proceedings in the pass book Ex PW1/3.
83. Hence, the consolidation proceedings are not properly conducted and therefore not reliable per se.
Page No. 38/5284. Another moot question before the Court is whether the entries in the name of plaintiff of new Khasra no. 88 to 99 only shows his ownership or it also reflects the possession of the plaintiff and this Court is of the considered view that the entry in the passbook only shows the ownership status of the plaintiff and not the possession for the following reasons:
(a) It already stands established from the testimony of the plaintiff himself that all the land stands sold to the purchasers except the land left for passage in the colony and alleged illegal occupation of the Mahender Singh & his brothers.
(b) It is also an admitted fact that as the sale was done through GPA/SPA/AS transactions the name of the purchasers not reflected in the revenue record.
(c) However, as all the purchasers are in settled possession before the commencement of consolidation proceedings, therefore, their names should have also been found mentioned as possessors of their respective plots as per the consolidation passbook.
85. Therefore, on the basis of above observations, his Court has no hesitation to observe that the consolidation passbook Ex. PW1/3, heavily relied upon by the plaintiff does not reflect the true picture on twin grounds that is First, there is no justification regarding increase of area of land after consolidation proceedings from 6250 sq. yards to 6850 sq. yards which is neither justifiable nor plausible and Second, non-mentioning of the name of the purchasers to whom the plaintiff already sold the land before the commencement of the proceedings as Page No. 39/52 possessors in the consolidation passbook.
86. The plaintiff has tried to make out a case in his favour and pleaded that after the conclusion of the consolidation proceedings out of Khasra no. 88 to 99 (plot), he sold the plots bearing no. 89,90,92,93,95 and 99 to the respective buyers, whereas, from his own deposition it stands established that plots were already sold to the respective buyers and plot nos. were given subsequent to the consolidation proceedings.
87. Further, it is the case of the plaintiff that he never sold the remaining plots i.e. no. 88,91,94,96,97 and 98 to any one and some of the villagers in order to grab the valuable properties of the plaintiff colluded with revenue officials and got their names in the kayami/karwai register of the year 2005 by taking benefit of his absence.
88. It is clearly mentioned in the karwai register that the entries are made on the basis of previous possession of the persons on the basis of their houses/plots built over the Khasra no. 19/13/1 and 19/14 and the defendants are shown in possession of Plot no. 88 measuring 0 bigha- 3 biswa i.e. 150 sq. yards.
89. During cross examination it is admitted by the plaintiff that he challenged the entries in the Karwai register before the Financial Commissioner and deposed as follows:
It is correct that I had approached the Financial Commissioner with regard to challenging the entries of name in karwai register during the consolidation proceedings. Vol. I had filed a Page No. 40/52 revision petition under the impression that my name was deleted. During the course of proceedings I learnt that my name is very well intact in the karwai register and thus I withdrew my revision petition.
90. Whereas, the defendant produced the witness namely Unique Kaushik, Jr. Assistant, from the Court of financial Commissioner Delhi as DW-3, who brought the patwari report dated 29.02.2007 filed in case no. 205/07 before financial commissioner Delhi alongwith copy of register karwai chakbandi dated 17.02.2007 and copy of Khatauni pertaining to the year 1990-91 and tendered them in evidence as Ex. DW3/A(OSR)(Colly, running into 5 pages).
91. The report of the patwari dated 29.02.2007 is reproduced herein "In reference to case bearing no.100/06-CA and case bearing no.102,103,101/06-CA, the inspection was conducted at the spot of Khasra no. 19/13/1(4-0) and 19/14 ( 3-0). It is submitted that the aforesaid Khasra numbers are prior to the consolidation proceedings and their ownership is in the name of Trilok Chand s/o Sh. Hardwari lal Sharma r/o 165-Wz, harinagar, Delhi, (the plaintiff herein). The ownership of 0-15 biswas out of Khasra no.19/13/1 is in the name of Smt. Shakuntla Kumari w/o Sh. S.S. Dhayia r/o Khanda, District Sonepat, Haryana. On inquiry it came to the knowledge that the above person about 10 years ago after cutting the plots out of the aforesaid Khasra numbers as a colony sold the same to different buyers, whose names after consolidation are recorded in the Register Karwai. Sir, after consolidation the Khasra numbers came within the jurisdiction Page No. 41/52 of extended lal dora of village Badusarai. The name of the persons who were residing in those plots after construction of their houses, were recorded as kayami as per their possession in the plots/houses and after conclusion of consolidation proceedings their names were entered in the register karwai Chakbandi and all the plots/houses were given different numbers i.e. number 88 to 102 out of which Khasra no. 96 and 98 is passage. Sir, before consolidation the Khasra numbers were of agricultural land and developing them as a colony was not lawful and after consolidation as per section 21 of the DRC Act, the land has to vest in Gram Sabha, however, as the Khasra numbers were in the ownership of Trilok Chand Sharma therefore after consolidation the ownership was recorded in his name and the persons who were in possession at the spot, they were recorded as possessors. The farad before and after the consolidation is attached herewith."
92. Therefore, the above report of the halqa patwari filed before the Financial commissioner in the revision petition, the entire case of the plaintiff based on the consolidation passbook as well as his plea that the villagers in connivance with revenue officials got their names entered into the register karwayi chakbandi falls flat as it is specifically mentioned in the report of the patwari that the names of the persons were recorded as kayami on the basis of their previous possession over the plots.
93. Even during cross examination dated 22.03.2019 while denying the suggestion that Rajbir and Suresh are in possession as owners of Page No. 42/52 land admeasuring 250 sq. yards situated at khasra NO. 19/14, the plaintiff in his voluntary statement himself deposed, " the plot No. 88 under their occupation as per the chakbandi pass book is 150 sq. yards. They are in illegal possession of land exceeding 150 sq. yards under Khasra No. 19/14.
94. The above deposition of the plaintiff further demolishes his own case to the effect that the defendants illegally occupied the plot No. 88 measuring 150 sq. yards, whereas in his cross examination as reproduced above the plaintiff has changed his stance and he is now claiming that the defendants are in illegal possession of land exceeding 150 sq. yards and the plaintiff has not lead any evidence to prove that the defendants are in possession of any land more than 150 sq yards.
95. The conclusion of the entire discussion made above on the basis of the testimony of the plaintiff is that once the plaintiff himself in his plaint filed in the Civil Suit no. 460/1995 filed in the year 1991, has pleaded that he had sold the entire land under Khasra no. 19/14 and it also stands established from his own testimony on the basis of which the chart is reproduced hereinabove, that he was not in possession of any land at the time of effective commencement of the consolidation proceedings in the year 2004. Further, the plaintiff miserably failed to prove by calling any member of his family or friends to prove that hw with their help had raised any boundary wall etc. over the suit property in the year 2005 after the completion of the consolidation proceedings as averred by him in the plaint.
Page No. 43/5296. Once, the plaintiff has failed to prove that he was in possession of any land either before or after the consolidation proceedings, no question of dispossession by the defendants arises and as a necessary corollary, no occasion arises to grant relief of possession in favour of the plaintiff.
97. Accordingly, the issue No. 6 is decided against the plaintiff and in favour of the defendant.
98. As issue No.6 is decided against the plaintiff, the issue No.7,8 and 9 being consequential reliefs dependent upon the finding on issue No.6, accordingly, the Issue no. 7,8 and 9 are also decided against the plaintiff and in favour of the defendant.
99. Even though the plaintiff failed to prove the burden placed on him in the affirmative, however, this court proceed further to decide whether the defendant is in possession of the land admeasuring 206 sq yds on the basis of agreement to sell, GPA, receipt and affidavit etc all dated 22.08.1997 (hereinafter referred as 'transfer document' claimed to be executed by the plaintiff in their favour.
Issue No. 2:- Whether the plaintiff has already sold the suit property to the defendants? ... OPD
100. Out of the defendants, defendant No. 1 Suresh Kumar entered the witness box as DW-1 and tendered his evidence by way of affidavit Ex DW1/A and he relied upon the documents already marked as Ex PW1/DX-1 (Colly), Ex PW1/DX-2, Ex PW1/DX-2, Ex PW1/DX-4 and Ex PW1/DX-5 and also tendered the photocopy of GPA , agreement to Sell, affidavit and receipt all dated 27.08.1997 as Page No. 44/52 Mark 'A'. It is apposite to mention that the original documents were seized by the IO Veer Singh from the defendants, who appeared in the witness box as PW-5 and he sent all those documents for examination in the FSL Rohini. The FSL report was tendered in evidence by PW-3 Sh Pramod Kumar Singh, Assistant Ahlamad from the court of Ld. MM, Dwarka Court, New Delhi as Ex PW3/3 dated 23.05.2014 (OSR).
101. It is settled rule of evidence that a document at the first instance must be proved to be in the hand writing of the executant or it bears signatures of the executant as per the mandate of Section 67 of the Indian Evidence Act and as per Section 68 of Indian Evidence Act, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness has been called for the purpose of proving its execution unless the execution of the document is admitted by the executant himself. In the present case the plaintiff in his replication denied the execution of the GPA, Agreement to Sell etc and averred that the documents are forged and fabricated.
102. Therefore, the onus is upon the defendant to prove the execution of above documents. It is relevant to observe that the defendant failed to prove the execution of the documents as the attesting witness namely, Maya Ram Yadav was never brought before the court to prove the execution of the transfer documents dated 22.08.1997 and it is also relevant to observe that when DW-1 tendered these documents in evidence, he has not identified the signatures of the plaintiff on those documents. The witness DW-4 Baljeet Singh and DW-5 Jeet Page No. 45/52 Singh even though reiterated the stand taken by the defendant in the written statement in their respective evidence by way of affidavit however, during cross examination both of them deposed that none of the transaction mentioned by them in their chief-examination by way of affidavit were took place in their presence. DW-5 specifically deposed that "the contents of my affidavit with regard to sale transaction are based upon knowledge gathered by me from various people in the village."
103. It is also one of the argument of the Ld. counsel for the plaintiff that as per the report of the FSL, the signature of the plaintiff on the transfer documents is forged and fabricated.
104. As far as the FSL report is concerned wherein the opinion is given that the signatures of the plaintiff are forged and fabricated is not reliable on the following grounds:-
(a) The plaintiff produced Parmod Kumar, Assistant Ahlmad, Court of Sh. Siddarth Malik, Ld.MM, Dwarka Court New Delhi, who tendered into evidence the summoning order dated 11.02.2015 passed in CC no. 428590/2016, PS Najafgarh as Ex. PW-3/1(OSR), investigation report filed by SI Veer Singh, PS Najafgarh as Ex.
PW3/2 (OSR), FSL report which constitutes part of Ex.PW3/2 as Ex. PW-3/3 dated 23.05.2014 (OSR) (mode of proof objected to by the ld. Counsel for the defendant as a photocopy of report dated 29.10.2013 is enclosed with) and complaint lodged by plaintiff u/s 200 Cr.PC as Ex. PW3/4(pending before Ld. MM).
(b) Plaintiff further produced IO Veer Singh, belt no. D4893, PS Page No. 46/52 Dwarka North, New Delhi as PW-5 who deposed in his chief examination that (only relevant portion reproduced) as per direction of the Ld.MM dated 18.07.2012 he conducted the investigation and collected the documents of plot no. 88 from Suresh Kumar & ors. and plot no. 91 from plaintiff and of plot no. 94 from Suresh Devi. Thereafter, he took the admitted signatures of complainant ( plaintiff herein) and sent the same to FSL, Rohini and thereafter he collected the report and submitted the same before the Court of Ld. CMM, South West, Dwarka. When he demanded the documents of plot no. 97 from Ishwar & others they produced GPA pertaining to Khasa no. 19/18/1.After that he received record of plot no. 97 from Halka Patwari and he came to notice that plot no. 88 to 97 came under Khasra no. 19/13/1/14 situated in vill Badusarai and thereafter he filed the original halka patwari report, sijra report, original documents pertaining to plot no.88,91 and 94, FSL report in the Court of Ld. CMM, Dwarka.
(c) In cross examination he admitted that he did not prepare any seizure memo with regard to the documents seized by him. He further admitted that he had not given any notice u/s 160 Cr.pc to the accused persons and not prepared any road certificate. He further admitted that the specimen signatures of kundan lal and not taken signatures of the accused persons (defendant in present case as well as connected cases). He further admitted that the signatures were taken without the permission of the Court and he took the signatures of Kundan lal at his own volition.
Page No. 47/52(d) On the basis of above deposition of PW-5, the fact that comes into light before the Court is that the signatures of plaintiff was taken by the IO at his own volition. Therefore, it is not clear that which 'admitted' signatures of the plaintiff were sent from comparison to FSL? As it is the case of the defendant that the document in question were executed by the plaintiff in the year 1987 whereas it is the case of the plaintiff that they are forged and fabricated in the year 2005 meaning thereby either the admitted signatures of the plaintiff of the year 1987 or 2005 are relevant for comparison and in absence of any proof that signatures of which year were sent for comparison, this Court comes to the conclusion that the FSL report cannot be relied upon.
(E) Further on perusal of FSL report, it is observed that there are two reports on record, one dated 29.10.2013 and another dated 22.05.2014. As per report dated 29.10.2013, the FSL, Rohini, mentioned that on the basis of standard writing/signatures marked S1 to S4 & A1 to A18 of Trilok Chand Sharma (plaintiff) sent on 24.06.2013 & 14.08.2013, under the head LABORATARY EXAMINATION, PART-II, it has not been possible to express any opinion, however, further attempt can be made if some more genuine admitted writing/signatures preferably of contemporary period as well as some more specimen writing or signature of the person concerned are produced and sent to laboratory.
(f) While in report dated 22.05.2014, on the basis of documents sent on 20.12.2013, on the basis of standard writing/signatures marked Page No. 48/52 as S1 to S4 & A1 to A18 of Sh. Trilok Chand Sharma ( plaintiff), the FSL gave its finding that the signatures differ from the specimen in comparison with the signatures on transfer documents i.e GPA, ATS, etc.
(g) Therefore, it transpires that the signatures of plaintiff are taken and sent twice for examination by the IO, whereas, the IO never deposed to this effect in his testimony. Additionally, examiner of the documents from the FSL, Rohini, is not called as a witness to authenticate the finding given by him on the basis of two set of signatures sent for comparison.
(h) Therefore, merely on the basis of FSL report without calling the expert in the witness box, especially under the circumstances that it is not clear that which signatures of the plaintiff, from which documents- whether of relevant period or present period and in presence of whom those signatures were taken, are sent to FSL by the IO that too without the prior permission of the Court of LD. MM, the FSL report per se cannot be relied upon to declare that the signatures of the plaintiff are forged.
105. However, as discussed above, independent report of the FSL, the defendants failed to prove the execution of the transfer documents dated 22.08.1997 alleged to be executed by the plaintiff in their favour by leading their own evidence.
106. In view of the above discussion and observations, the defendant failed to prove that the plaintiff has already sold the land measuring 206 sq yds by way of transfer documents dated 22.08.1997 which Page No. 49/52 includes the area of the suit property i.e. 150 sq yds , accordingly the issue is decided against the defendants and in favour of the plaintiff.
107. Now coming to issue No.1 i.e. Whether the plaintiff has suppressed the correct and material facts from the court, if so, its effect? ... OPD
108. The onus to prove the present is upon the defendant. It was the contention of the Ld. Counsel for the defendant that the plaintiff suppressed the previous civil suit No. 460/1995 tiled as Trilok Chand Sharma Vs. Mahender Singh & Ors and the plaintiff further suppressed the fact that he himself pleaded in the plaint filed in 1991 in the Civil Suit no. 460/1995 and also admitted in his evidence by way of affidavit dated 25.05.2004, that he has already transferred one bigha out of Khasra No. 19/13/1 and whole land i.e 3 bighas out of Khasra No. 19/14 and at present left with 3000 sq. yards i.e. 3 bighas in Khasra No. 19/13/1 shown in red colour in the site plan whereas in the present case he is seeking possession of 150 sq yds of land which as per the pleading of the plaintiff himself falls under Khasra No. 19/14 and therefore once the plaintiff himself admitted in his plaint filed in the year 1991 that he is not possession of any land under khasra No. 19/14 how can the claim of the plaintiff is sustainable in the present suit.
109. Per contra, the Ld. Counsel for the plaintiff submitted that it is the defendants who have tried to trespass upon the land of the plaintiff on the basis of forged and fabricated documents which is clearly Page No. 50/52 stands established from the FSL report and even the defendants have failed to prove the execution of the documents by calling any attesting witness.
110. As far as the FSL report is concerned, this court has already given its finding on the validity of the FSL report and as far as the argument of the counsel of the defendant to the effect that the plaintiff suppressed the previous suit bearing No. 460/1995 is concerned, it is an admitted fact that the present defendants were not party to the said Civil Suit and therefore mentioning of the same in the present case by the plaintiff is non fatal and therefore it cannot be said that the plaintiff has suppressed the any material document or fact from this court.
111. In view of the above the present issue is decided against the defendants and in favour of the plaintiff.
112. Last but not the least coming to issue No.3 i.e. Whether this court has no pecuniary jurisdiction to entertain the suit? ... OPD
113. Neither any evidence is lead by the defendants nor the issue is pressed during arguments by the Ld. Counsel for the defendants, accordingly, the issue is decided against the defendants and in favour of the plaintiff.
Conclusion:
114. It is settled principle of law that the plaintiff has to stand upon his own leg and prove his case in the affirmative by leading his own evidence and he cannot take advantage of the weak defense to prove Page No. 51/52 the case in his favour. In the present case the plaintiff has failed to prove that the defendants ever trespass in land measuring 206 sq yds under his ownership comprising khasra No. 19/14, therefore, the failure of the defendants to prove that the suit property is owned by them on the basis of transfer documents dated 22.08.1997 is of no help to the plaintiff. It is also relevant to observe that during cross examination the plaintiff himself admitted in voluntary statement during his cross examination that the plot No. 88 under their occupation as per chakkbandi pass book is 150 sq. yards. They are in illegal possession of land exceeding 150 sq. yards under Khasra No. 19/14. however, no evidence is lead by the plaintiff to prove that the defendants are in possession of any land in excess of 150 sq yds in land comprising under khasra No. 19/14.
Relief:
115. In view of the findings of this court, on issue No. 6 and the discussion made above, the suit of the plaintiff is hereby dismissed with costs of the suit in favour of the defendant.
116. Decree sheet be drawn up accordingly.
117. File be consigned to record room after due compliance and necessary action as per Rules. Digitally signed SACHIN by SACHIN JAIN JAIN Date: 2022.05.17 17:05:58 +0530 Pronounced in the open Court (Sachin Jain) on 13.05.2022 Addl. District Judge-02 South West District Dwarka Courts Complex, Delhi Page No. 52/52