Delhi District Court
Sisram vs Varinder Singh And Ors on 21 October, 2023
IN THE COURT OF MS. RAJAT GOYAL,
SENIOR CIVIL JUDGE, SOUTH-WEST DISTRICT,
DWARKA COURTS, NEW DELHI.
JUDGMENT
RCA No. 2/2018
Sh. Sis Ram (since deceased), Represented through his LRs
1. Sh. Mahinder Singh, S/o Late Sh. Sis Ram, R/o Village Paprawat, Najafgarh, New Delhi-110043.
2. Sh. Ramesh Chander, S/o Late Sh. Sis Ram, R/o Village Paprawat, Najafgarh, New Delhi-110043.
3. Sh. Naresh Kumar, S/o Late Sh. Sis Ram, R/o Village Paprawat, Najafgarh, New Delhi-110043.
4. Smt. Meena Kumari, D/o Late Sh. Sis Ram, R/o Village Paprawat, Najafgarh, New Delhi-110043.
....................Appellants Versus
1. Sh. Varinder Singh, S/o Late Sh. Sher Singh, R/o Village Paprawat, Najafgarh, Sis Ram VS. Varinder Singh & Ors. RCA N0. 2/2018 Page No.1 of 15 New Delhi-110043.
2. Sh. Rajinder Singh, S/o Late Sh. Sher Singh, R/o Village Paprawat, Najafgarh, New Delhi-110043.
3. Sh. Attar Singh, S/o Late Sh. Sher Singh, R/o Village Paprawat, Najafgarh, New Delhi-110043.
4. Sh. Sultan Singh, S/o Late Sh. Bhim Singh, R/o Village Paprawat, Najafgarh, New Delhi-110043.
5. Smt. Bishni Devi, D/o Late Sh. Bhim Singh, R/o Village Dhanawas, P.O Garhi Harsaru, Distt. Gurugram, Haryana.
....................Respondents APPEAL AGAINST JUDGMENT AND DECREE DATED 25.01.2018.
DATE OF INSTITUTION : 28.03.2018 DATE OF RESERVING THE ORDER : 04.09.2023 DATE OF PRONOUNCEMENT : 21.10.2023
1. Present appeal has been filed by appellants against judgment and decree dated 25.01.2018, passed by Ld. Civil Judge- 03, Central District, Tis Hazari Courts. Appellants are the LRs of plaintiff who had filed the suit for permanent and mandatory Sis Ram VS. Varinder Singh & Ors. RCA N0. 2/2018 Page No.2 of 15 injunction against the respondents. The said suit was dismissed by Ld. Trial Court vide impugned judgment dated 25.01.2018. For the sake of convenience, appellants shall be referred to as plaintiff and respondents as defendants, in keeping with their stature before Ld. Trial Court.
2. Briefly stated, case of the plaintiff filed before Ld. Trial Court was that plaintiff is the brother of defendant no. 1 to 5. That defendant no. 8 to 10 are the LRs of late Sh. Bhim Singh. That plaintiff as well as defendants are co-owners of one joint plot of land, ad-measuring 3 Bighas 1 Biswa, Khasra no. 339, village Paprawat, Najafgarh, New Delhi. That after retirement in the year 1973, plaintiff constructed one room ad-measuring 24 ft. x 10 ft. on the above-mentioned joint plot of land. That the said room was constructed by plaintiff for starting one business of grinding of grains and spinning of cotton. That plaintiff had also obtained electricity connection in his name in this regard. That plaintiff also purchased necessary machinery and equipments, by spending an amount of Rs. 13,000/-. That plaintiff is the exclusive owner of the said room and the flour mill. That there was a dispute between plaintiff and defendant no.1 with respect to installation of electricity meter by defendant no.1 on the wall of baithak of plaintiff. That on 29.08.1985, defendants attacked and assaulted the plaintiff and his sons. That one case was registered against defendants in this regard. That in view of the tension between the parties, plaintiff decided to suspend his flour mill operation. That in January, 1988, plaintiff came to know that defendants have put their lock over the lock of Sis Ram VS. Varinder Singh & Ors. RCA N0. 2/2018 Page No.3 of 15 plaintiff on the flour mill. That defendants started threatening the plaintiff to the effect that they shall not let plaintiff run his flour mill from the joint plot of land. Hence, the said suit for permanent and mandatory injunction.
3. Upon service of summons, defendants appeared and filed their written statement (WS), stating therein that the flour mill in question has been in the possession of defendants for last more than 12 years. That the same was being operated and run by defendants from 1974 to 1985. That electricity bills of the said flour mill for the said period were also paid by defendants. That suit was time barred. That defendants have been in adverse possession of the flour mill for more than 12 years. That the plot of land on which the flour mill has been constructed has already been partitioned and is not joint. That electricity connection was obtained in the name of plaintiff only for the reason that plaintiff had retired from Army and it was, thus, easier to obtain electricity connection in the name of plaintiff as he was an ex-serviceman. That plaintiff instead started one transport business at Sarai Rohilla, Najafgarh. That the flour business was suspended by defendants after the incident dated 29.08.1985. That only after 29.08.1985, plaintiff started paying electricity bills so as to create false evidence. That plaintiff has never been in possession of the flour mill in question. That there is no merit in the suit and the same be dismissed.
4. On the basis of pleadings, following issues were framed by Ld. Trial Court:-
Sis Ram VS. Varinder Singh & Ors. RCA N0. 2/2018 Page No.4 of 15
(a) Whether suit is barred by time? OPD
(b) Whether suit has not been valued properly for the purposes of court fee and jurisdiction? OPD
(c) Whether suit in its present form is not maintainable? OPD
(d) Whether plaintiff has no locus standi to file the present suit? OPD
(e) Whether there is cause of action in favour of plaintiff? OPP
(f) Whether plaintiff is entitled to relief of permanent injunction, as prayed for? OPP
(g) Whether plaintiff is entitled to relief of mandatory injunction, as prayed for? OPP
(h) Whether the suit is hit by Section 41(h) of Specific Relief Act? OPD
(i) Relief.
5. As stated above, the said suit was dismissed by Ld. Trial Court vide impugned judgment dated 25.01.2018. The said judgment has been assailed by plaintiff by way of the present appeal on following grounds:-
(i) That the impugned judgment is based on surmises and conjectures;
(ii) That Ld. Trial Court failed to appreciate that plaintiff had duly proved construction of flour mill in question;
(iii) That Ld. Trial Court failed to appreciate that Sis Ram VS. Varinder Singh & Ors. RCA N0. 2/2018 Page No.5 of 15 electricity connection is in the name of plaintiff;
(iv) That Ld. Trial Court erred in holding that there were disputes between the parties between 1977 to 1985;
(v) That Ld. Trial Court erroneously held that there is contradiction in testimony of PW-2 on one hand and PW-5 & PW-6 on the other hand;
(vi) That Ld. Trial Court did not consider the fact that DW-2 proved that there are two locks on the suit property;
(vii) That Ld. Trial Court did not consider the fact that plaintiff had proved exclusive ownership over the suit property / flour mill;
(viii) That the impugned judgment is perverse and must be set aside.
6. It has been argued by Ld. counsel for plaintiff that there is ample evidence on record to show that plaintiff is the absolute owner of the suit property / flour mill in question. On the other hand, Ld. counsel for defendants has argued that there is no merit in the present appeal and the same be dismissed.
7. I have heard the arguments and perused the record.
8. The main dispute between the parties is with respect to ownership of room/flour mill constructed on land bearing Khasra No.339, Village Paprawat, Najafgarh, New Delhi. Ld. Counsel for plaintiff has argued that defendants had themselves admitted ownership of plaintiffs with respect to the said flour mill as they had Sis Ram VS. Varinder Singh & Ors. RCA N0. 2/2018 Page No.6 of 15 taken the plea of adverse possession in para 6 of their WS. He has further argued that by taking the plea of adverse possession, defendants have admitted that it is the plaintiff who is the actual owner of the flour mill in question. However, I do not find myself to be in agreement with this argument. It is settled principle of law that pleadings of a party must be read as a whole, and not in a piece meal manner. Upon complete and holistic reading of WS filed by defendants before the Ld. Trial Court, it is clear that defendants have asserted their ownership qua the flour mill and the plea of adverse possession was taken by defendants only in the nature of an alternative plea. The same is evident from assertions made by defendants in para 2 of reply on merits of their WS, wherein it has been categorically stated by defendants that flour mill in question was installed by Shri Bhim Singh / family of Sher Singh and that they had carried on the business of the flour mill themselves. Hence, there is no deemed admission of defendants qua ownership of the plaintiff with respect to the flour mill in question.
9. It is the case of the plaintiff that flour mill in question was constructed and installed by him, after his retirement from the Army in the year 1973. However, no bills/invoices for construction of the room/structure or for purchase of machinery/equipments were produced by the plaintiff during the trial. To the contrary, it is an undisputed fact that defendants had produced certain bills/invoices during their testimony before Ld. Trial Court. The said bills were tendered into evidence by DW1 as Ex.DW1/9 to Ex.DW1/32. Admittedly, the said bills are in the name of defendant No.1 (late Sh.
Sis Ram VS. Varinder Singh & Ors. RCA N0. 2/2018 Page No.7 of 15 Sher Singh). Ld. Counsel for plaintiff has argued that since the person who had issued the said bills was not examined by defendants, the said bills can not be stated to have been proved in accordance with law. He further states that the said bills were issued in the name of late Sh. Sher Singh since he was known to the shopkeeper and that several of the said bills bear the signatures of plaintiff against receipt of material. He has further argued that the very fact that plaintiff has acknowledged receipt of material on several bills shows that the said material was actually purchased by plaintiff, despite bills being in the name of late Sh. Sher Singh. However, I do not find much merit in his arguments. Since plaintiff is himself relying upon the said bills by referring to his signatures on the said bills in receipt of material, failure of defendants to examine the shopkeeper in question is of no consequence. Further, since it is the plaintiff who is asserting that goods/material were actually purchased by him, despite bills being in the name of late Sh. Sher Singh, onus was upon the plaintiff to establish the said fact by examining the concerned shopkeeper and by clarifying through him as to why bills were issued in the name of late Sh. Sher Singh. However, since plaintiff failed to do so, no benefit can be claimed by plaintiff merely on the ground that he had acknowledged receipt of goods/material on some of the invoices. Since invoices/bills Ex.DW1/9 to Ex.DW1/32 are in the name of late Sh. Sher Singh, it can not be said that plaintiff has discharged the onus of proving that flour mill in question was constructed by plaintiff solely.
10. It has next been argued on behalf of plaintiff that Sis Ram VS. Varinder Singh & Ors. RCA N0. 2/2018 Page No.8 of 15 electricity connection in the flour mill is in the name of plaintiff and the said fact shows that plaintiff is the exclusive owner of the flour mill in question. However, it is settled law that ownership can not be decided on the basis of electricity or water connection. Going by the said logic, it is an admitted fact that father of defendant No.8 to 10 (late Sh. Bhim Singh) had obtained a water connection in his name in the year 1981 and that the said water connection was installed in the same piece of land on which the floor mill in question existed. It has been admitted by plaintiff in para 4 of reply to preliminary objections of his replication that the said water connection was installed as tube well fixed near the flour mill had run dry and that all the parties were taking water from the said water connection. In these circumstances, since water connection which supplied the flour mill in question was in the name of predecessor-in-interest of defendant No.8 to 10, no special privilege with respect to ownership can be claimed by plaintiff merely on the ground that electricity connection which fed the said flour mill was in the name of plaintiff. Even otherwise, explanation given by defendants to the effect that the said connection was taken in the name of plaintiff due to his status of an ex-serviceman appears to be plausible and convincing. It is not unheard of that several concessions are given to Government servants, specially ex- Armymen.
11. It has also been argued on behalf of plaintiff that it is the plaintiff who had been paying electricity bills qua the flour mill in question. The said bills were tendered into evidence by PW2 as Ex.PW2/1 to Ex.PW2/8. It is an admitted fact that the said Sis Ram VS. Varinder Singh & Ors. RCA N0. 2/2018 Page No.9 of 15 electricity bills pertain to the period after 1985 and that plaintiff had not produced any electricity bills for period before 1985. It is also an admitted fact that the flour mill in question has not been operational since 1985. Had plaintiff been in exclusive possession of the flour mill for the period prior to 1985, it is only logical to presume that plaintiff would have been paying electricity bill for the said period prior to 1985 as well. However, as stated above, no electricity bills for the period prior to 1985 were produced by plaintiff to show that it was the plaintiff who had always been paying the electricity bills qua the flour mill in question, being its sole and exclusive owner. Only explanation offered by plaintiff in this regard was that bills for the period prior to 1985 were taken away by the defendants. However, even if the said bills were taken away by the defendants, plaintiff could have easily proved payment of the said bills by summoning the relevant record from the electricity department. However, no steps were taken by the plaintiff in this regard. Failure of plaintiff to prove payment of electricity bills for the period to 1985 assumes greater importance in view of the fact that plaintiff had summoned the concerned witnesses from DESU as PW1, PW3 and PW4. However, no information regarding payment of electricity bills for the period prior to 1985 was sought by plaintiff from the said witnesses. The said failure of plaintiff also goes against him and his claim with respect to being exclusive owner in possession of the flour mill in question.
12. It is also very pertinent to note here that though plaintiff has claimed that he is the sole owner of the flour mill and used to Sis Ram VS. Varinder Singh & Ors. RCA N0. 2/2018 Page No.10 of 15 run the same exclusively, it has been stated in para 4 of reply to preliminary objections contained in replication filed by plaintiff that during his absence, defendant No.2/Varinder Singh used to look after the flour mill. Though it has been asserted by plaintiff that Varinder Singh was employed by plaintiff himself somewhere in the year 1977/1978 to assist him in running the flour mill and that plaintiff used to pay monthly salary/stipend to Varinder Singh in this regard, no evidence has been led by plaintiff in this regard. Plaintiff has not produced any salary slip/voucher or even books of account showing monthly payment of salary/stipend to Varinder Singh. It is also very pertinent to note here that relations between the parties had become strained even before 1977. It has been stated in para 9 of the plaint itself that plaintiff had filed a police complaint against defendant No.1 with respect to one electricity meter. It was stated by plaintiff/PW2 during his testimony that defendant No.2 / Varinder Singh had worked in the flour mill from 1977 to 1985. Admittedly, disputes had arisen between the parties even prior to 1977. In such circumstances, there is no reason and logic as to why plaintiff would employ defendant No.2 to work with him in the flour mill in question. It must also be noted here that it has been stated by plaintiff in para 4 of reply to preliminary objections contained in his replication that defendant No.2 / Varinder Singh was not working at the relevant time. However, in para 2C of reply on merits as contained in the same replication, plaintiff has stated that apart from plaintiff, no other member of his family of 6 persons was earning at the relevant time. In such circumstances, plaintiff ought to have taken the help of one of his own family members to help him in Sis Ram VS. Varinder Singh & Ors. RCA N0. 2/2018 Page No.11 of 15 running the business of flour mill, rather than employing defendant No.2 / Varinder Singh in the said flour mill. As stated above, there is nothing on record to show that it was the plaintiff who had allowed defendant No.2 to work in the flour mill and that defendant No.2 was so working on behalf of plaintiff. The fact that Varinder Singh had also worked in the flour mill at least from 1977 to 1985 shows that plaintiff was not in exclusive possession of the flour mill during that period.
13. It has been argued by Ld. Counsel for plaintiff that defendants never examined the said Varinder Singh to prove that he was working in the flour mill in question in the capacity as an owner thereof. However, since it is the plaintiff who had asserted that he had employed Varinder Singh to work in the flour mill, onus was upon the plaintiff to prove the said assertion by showing that plaintiff had been paying salary / stipend to the said Varinder Singh. However, as stated above, no evidence was led by plaintiff in this regard. In such circumstances, plaintiff cannot seek to derive benefit from the fact that defendants did not examine Varinder Singh as a witness as case of the plaintiff must stand on its own legs.
14. It has been argued by Ld. Counsel for plaintiff that plea of defendants to the effect that flour mill was established by late Sh. Sher Singh / his family is incorrect as Sh. Sher Singh was a government teacher at the relevant point of time and had not obtained any permission from his employer for establishing and running the flour mill. However, it is common knowledge that many Sis Ram VS. Varinder Singh & Ors. RCA N0. 2/2018 Page No.12 of 15 government servants/government school teachers carry on a side business for additional income, without obtaining necessary permission in this regard. It has further been argued by Ld. Counsel for plaintiff that since Sh. Sher Singh was working as a government school teacher, he had no time to run the flour mill in question. However, running of a flour mill is not a business which requires personal supervision on a minute-to-minute basis. Also, it was stated by DW1 during his cross-examination that work timings of his father late Sh. Sher Singh from 01:00 pm to 05:00 pm. In these circumstances, it can not be said that late Sh. Sher Singh had no time or occasion to run the flour mill in question as he could have run/operated the same in the morning hours or in the late evening.
15. It must also be noted that though it has been stated in para 5 of plaint that plaintiff had spent around Rs.13,000/- in total in construction of the flour mill and purchase of its machinery. However, no evidence with respect to source of the said amount was led by plaintiff during trial. It is also very pertinent to note here that it has been admitted that plaintiff in para 2D of reply on merits of his replication that plaintiff had no source of income at the time when he had applied for obtaining electricity connection for the flour mill in the year 1974. It has also been stated in the said replication that plaintiff was only getting pension of Rs.53/- per month at that time and that he was the only earning member in his family of 6 persons. In these circumstances, it can not be believed that plaintiff had access to an amount of Rs.13,000/- at that time for construction of the flour mill and for purchase of its equipments.
Sis Ram VS. Varinder Singh & Ors. RCA N0. 2/2018 Page No.13 of 15 Hence, it cannot be said that plaintiff had proved his assertion to the effect that it was the plaintiff alone who had constructed and bought the equipments and machinery for the flour mill in question.
16. It has been argued by Ld. Counsel for plaintiff that from the testimony of DW-2, it is clear that there are two locks on the suit property and the same shows that defendants had put their lock over the lock of plaintiff. However, the said argument is misplaced as testimony of DW-2 at the most merely shows that there are more than one locks over the suit property. However, mere presence of multiple locks over the suit property does not prove that lock of the plaintiff had been put prior in time and that defendants had put their lock over the lock of plaintiff. It could very well be the other way round and it is as much plausible that plaintiff had put his lock over the lock of defendants. No evidence has been led by plaintiff to show that his lock had existed prior in time or that it was the defendants who had put their lock over the lock of plaintiff. Hence, no benefit can be derived by the plaintiff from the testimony of DW2.
17. From the above discussion, it is clear that plaintiff had failed to prove in the trial that he was the sole and exclusive owner of the flour mill in question. In view of the same, as rightly decided by Ld. Trial Court, relief of permanent and mandatory injunction could not have been granted in favour of plaintiff as exclusive ownership was the very basis of plaintiff seeking the said reliefs of injunction.
Sis Ram VS. Varinder Singh & Ors. RCA N0. 2/2018 Page No.14 of 15
18. In view of the above discussion, I am of the opinion that suit of the plaintiff was rightly dismissed by Ld. Trial Court. There is no infirmity in the impugned judgment. Accordingly, present appeal is hereby dismissed.
19. Decree sheet be prepared accordingly. TCR be sent back alongwith copy of this judgment.
20. File be consigned to record room after due compliance.
RAJAT Digitally signed by RAJAT GOYAL Announced in open Court on October, 21, 2023. GOYAL Date: 2023.10.21 13:28:58 +0530 (RAJAT GOYAL) SCJ-cum-RC/South-West, Dwarka, New Delhi 21.10.2023 Sis Ram VS. Varinder Singh & Ors. RCA N0. 2/2018 Page No.15 of 15