Delhi District Court
Sh. Dil Bagh Singh vs Sh. Sukh Chand Jain on 23 December, 2024
IN THE COURT OF ADDITIONAL SENIOR CIVIL JUDGE,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CS SCJ No. 593444/2016
CNR No. DLCT030000472005
In the matter of:-
1. Sh. Dilbagh Singh,
S/o Late Sh. Ram Singh,
R/o House No. 400,
Village Mitraon, Delhi.
2. Sh. Bhagwan Singh,
S/o Late Sh. Ram Singh,
R/o House No. 400,
Village Mitraon, Delhi. ...Plaintiffs
VERSUS
1. Sh. Sukh Chand Jain,
S/o of Sh. Pooran Chand Jain,
R/o C-2/19, Model Town,
Delhi-110009.
2. Sh. Amrit Chand Jain,
S/o of Sh. Pooran Chand Jain,
R/o C-2/19, Model Town,
Delhi-110009.
3. Sh. Akesh Chand Jain,
S/o of Sh. Pooran Chand Jain,
R/o C-2/19, Model Town,
Delhi-110009.
4. Smt. Anju Jain,
CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 1 of 39
S/o of Sh. Akesh Chand Jain,
R/o C-2/19, Model Town,
Delhi-110009.
5. Sh. Balbir Singh,
S/o Late Sh. Maya Singh,
R/o 24/2-A, Moti Nagar,
New Delhi-110015. ...Defendants
Date of Institution : 14.02.2005
Reserved for Judgment : 01.06.2024
Date of Decision : 23.12.2024
JUDGMENT
1. This is a suit for declaration, cancellation and permanent injunction filed by the plaintiffs against the defendants.
2. It is the case of the plaintiff that the plaintiffs are the original residents of village Mitraon where they have been holding ancestral lands and residential houses. That the plot comprised in Khasra No. 388 (0-19) is one of the such land, which was allotted to the late father of the plaintiffs namely Sh. Ram Singh during the consolidation of holding operations that took place in this village in the year 1972-73. That the plot was allotted to the father of the plaintiffs after deducting double the value of the agricultural land from his khata. That at the time of its allotment, the father of the plaintiffs was handed over the actual physical possession of the same by the Consolidation CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 2 of 39 Officer at the spot. That after acquiring the said residential plot in the above stated manner, the father of the plaintiffs raised construction of a boundary wall around the same and started using it for the purposes of tethering his milch cattles and other agricultural related work. That the father of the plaintiffs died sometime in the year 2000 and thereafter, the plaintiffs being his sons became the exclusive owner in possession of the plot. That the plaintiffs thus, have been using the suit property for the purposes of gher and gitwar since the time of its allotment till today without any interruption from any quarter whatsoever.
3. It is further averred that the defendants have no right, title or interest in plot in dispute. That they are neither the owner nor remained in its possession even for a split of a second. That the plot in dispute has always been occupied by the plaintiffs and predecessors-in-interest in the capacity of its owner. That they are complete strangers to the suit property, however, it was on 26.01.2005 that a flying squad visited the suit property and started enquiring from the plaintiffs about the same. That the police officials who visited the plot enquired from the plaintiffs about their right, title and interest in respect of the suit property upon which the plaintiffs disclosed to them that the same was allotted to them during the consolidation operations in 1972-73 and as such they are the its owners. That the plaintiffs further disclosed to the police officials that they have been in possession of this plot since the time of its allotment in 1972-73 without any interruption. That the police officials after making preliminary enquries and after satisfying themselves went back. That the plaintiffs thereafter made enquiries and came to know that the police had come at the instance of the defendant Nos. 1 CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 3 of 39 to 4, who had claimed that the plot had been purchased by them and that they are its owners on the basis of a sale deed.
4. It is further averred that the plaintiffs thereafter, immediately contacted the revenue officials and upon enquiries it was revealed to the plaintiffs that the suit property is stated to have been mutated in the names of the defendants No. 1 to 4. That the halka patwari further disclosed to the plaintiff the case number of the mutation file which was got inspected ,whereupon, it transpired that two sale deeds were executed by the defendant No.5 in favour of defendant Nos. 1 to 4 on 01.05.1985 and 15.05.1985 acting as the GPA of the father of the plaintiffs. That the inspection of the file further revealed that on the basis of the alleged sale deeds mutation orders have been sanctioned by the Tehsildar in favour of defendant Nos. 1 to 4. That the plaintiffs thereafter obtained certified copies of the whole of the mutation file wherein copies of the two sale deeds being document No. 6028 in additional book No. 1, vol. No. 4678, at pages 64-66 dated 15.5.1985, in favour of defendant Nos. 1 and 2, and another sale deed being document No. 5680, additional book No. 1, vol. No. 4678 at pages 166-68, dated 01.05.1985 were annexed. That the perusal of the sale deeds revealed that a GPA dated 03.05.1982 purported to have been executed by their late father by virtue of which he is alleged to have authorized the defendant No.5 to act for and on his behalf. That the father of the plaintiffs never authorized the defendant No. 5 or anybody else to act as his attorney. That the attorney dated 03.05.1982 is a false frivolous and fabricated document. That the defendants in collusion with each other have manufactured the same in order to grab the suit property belonging to the plaintiffs. That the suit CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 4 of 39 property has never been sold alienated or transferred by the father of the plaintiffs at any point of time. That the possession of the plot since the time of its allotment has always remained with the plaintiffs and their father.
5. It is further averred that a perusal of the GPA alleged to have been executed by their late father further revealed that the same is not a registered document and is purported to be bearing the thumb impression of the father of the plaintiffs. That the alleged GPA dated 03.05.1982 was never executed by the father of the plaintiffs. That the same does not bear his thumb impression. That there was no occasion for the father of the plaintiffs to either sell or transfer or alienate the said residential plot. That the defendant No.5 is a complete stranger and the plaintiffs or their father has never seen his face or met him. That the GPA alleged to have been executed by Sh. Ram Singh, the father of the plaintiffs, is a false, frivolous and fabricated document, without conferring any right, title or authority upon the defendant No.5 to act for and on behalf of Sh. Ram Singh.
6. It is further averred that the mutation file further reveals that the sale deeds have been executed by defendant No.5 on behalf of the father of the plaintiffs on the basis of an unregistered GPA. That no sale deed could have been executed or registered on the basis of such an unregistered document. That even otherwise, as the father of the plaintiffs did not appoint or authorize the defendant No.5 as his attorney, he had no right in law to execute any sale deed in respect of the suit property. That the transfer effected by the defendant No.5 in favour of the defendant Nos. 1 to 4 by execution of the sale deeds is without authority and is a sham transaction not conferring any right, title CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 5 of 39 or interest in their favour. That not only the documents of sale deeds and GPA are void but the mutation order based on the sham sale deeds is also bad in law. That as a matter of fact the Naib Tehsildar did not follow the statutory provisions of law prior to sanctioning the mutation order in favour of the defendants No.1 to 4 on the basis of the sham sale deed. That he did not issue any notice to the father of the plaintiffs, nor did he issue any proclamation that was mandatory. That the mutation orders having been passed behind the back of the plaintiffs and their predecessor in interest was void ab initio and is liable to be declared as such.
7. It is further averred that the plaintiffs apprehend that on the basis of the false and frivolous documents, the defendants may illegally and forcibly dispossess the plaintiffs from the suit property. That as a matter of fact the defendants have no right, title or interest to take forcible possession from the plaintiffs. That it was on 09.02.2005 that the defendants No. 1 to 4 collectively came on the spot and demanded from the plaintiffs that either they should vacate the suit property and handover the possession of the same to them or otherwise they shall take forcible possession of the suit property. That they have openly threatened the plaintiffs that they shall forcibly take possession of the suit property on the basis of the sham documents and such the plaintiffs have been left with no alternative but to file the present suit. Hence the present suit. The plaintiffs have prayed, inter alia, for the followings reliefs:
"a) A decree of cancellation thereby canceling the sale deeds being Document No. 6028 in Additional Book No. 1 Vol. No. 4678 at Pages 64-66 dt. 15.5.85 in favour of Defendant nos. 1 and 2 and another sale deed being document no.
CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 6 of 39 5680 Additional Book No. 1 Vol. No. 4678 at Pages 166-68 dt. 1.5.85 in favour of Defendant nos. 3 and 4 may be passed;
b) A decree of declaration to thereby declaring the GPA dt. 3.5.1982 purported to have been executed by Shri Ram Singh in favour of the defendant no.5 as forged, fabricated null and void document may also be passed;
c) A decree of permanent injunction thereby restraining the defendants, their agents, employees etc. from illegally and forcibly dispossessing the plaintiffs from the suit property comprised in Khasra No. 388 (0-19) and more clearly shown in red in the site plan annexed herewith may please be passed.
d) Any other relief that this Hon'ble Court deem fit and proper in the facts and circumstances of the case be also granted. "
8. Upon service of summons, the defendants entered their appearance and filed their written statements. Defendants No.1 to 4 have filed a joint written statement stating therein that the plaintiffs have absolutely no locus standi to file the present suit. That they have absolutely no right, title or interest of any nature whatsoever either in the land as described in the suit or in the land as shown in the plan accompanying the suit. That the plaintiffs are not in possession of the alleged land as described in the plaint or shown in the plan. That during his life time Sh. Ram Singh initially entered into an agreement to sell regarding the sale of land measuring 19 biswas situated in Khasra No. 388, village Mitraon, for a sum of Rs. 20,000/- on 26.07.1980 in favour of Sh. Sunder Singh and Sh. Balbir Singh. That in pursuance of the said agreement, Sh. Ram Singh also received a sum of Rs. 5,000/- from the then purchaser of the land vide receipt dated 26.07.1980 which was duly registered with the Sub- Registrar as document No. 10729, Addl. book No. 4, vol. No. CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 7 of 39 627, page 156. That the said deal was not materialized and thereafter, a supplementary agreement to sell dated 12.04.1982 was executed between Sh. Ram Singh and Sh. Sunder Singh and Sh. Balbir Singh for a total sum of Rs. 50,000/- for the sale of the aforesaid land. That in part performance of the contract to sell Sh. Ram Singh handed over the actual physical possession of the aforesaid land to Sh. Balbir Singh and Sh. Sunder Singh and sworned an affidavit dated 12.04.1982 in this regard. That in pursuance to the agreement of sale Sh. Ram Singh while acknowledging the receipt of Rs. 5,000/- as sale consideration, received the balance sale consideration of Rs. 45,000/- and the receipt of the same was also registered with the Sub-Registrar Office as document No. 5677, book No. 4, vol. No. 821, page No. 186 dated 03.05.1982 from the then purchasers Sh. Sunder Singh and Sh. Balbir Singh.
9. It is further averred that Sh. Ram Singh had also obtained a Lal Dora certificate dated 25.07.1980 from that the Revenue Assistant, Delhi to establish that the suit land falls in the lal dora abadi of village Mitraun, Delhi. That this certificate was handed over by Sh. Ram Singh to Sh. Sunder Singh and Sh. Balbir Singh at the time of execution of agreement to sell etc. That further in order to assure the purchasers of the land about the complete transfer of the land in their favour in the event of any mishappening, Sh. Ram Singh has also executed a Will dated 03.05.1982 in their favour which was duly registered with the Sub-Registrar-II as document No. 2041 in book No. 3, vol. No. 229, page 106. That vide the aforesaid sale agreement, late Sh. Ram Singh also undertook to execute the regular sale deed in favour of the aforesaid persons or in favour of their nominee.
CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 8 of 39 That simultaneously, a general power of attorney dated 03.05.1982 was also executed by Sh. Ram Singh in favour of Sh. Balbir Singh authorizing him to execute sale deed regarding the aforesaid land. That the GPA was duly attested by Notary Public Delhi. That now after death of Sh. Ram Singh the aforesaid power of attorney also binds the plaintiffs who are the heirs of late Sh. Ram Singh.
10. It is further averred that in pursuance of the powers and authorities conferred by Sh. Ram Singh, his attorney Sh. Balbir Singh entered into an agreement with the defendant for the transfer of the suit land which was duly registered duly registered in favour of Sh. Akesh Chand and Smt. Anju Jain for 75 sq. yds. out of Khasra No. 388. That likewise a similar sale deed was executed by Sh. Balbir Singh in favour of Sh. Sukh Chand Jain and Sh. Amrit Jain and the defendants were put in actual physical possession of the entire land of Khasra No. 388, village Mitraon, Delhi. That since then the defendants are in actual physical possession of the said land to the exclusion of all others including the plaintiffs. That the defendants No. 1 to 4 also purchased adjacent land of Khasra No. 387 measuring 19 biswas from Sh. Sukhbir Singh vide registered sale deeds dated 18.05.1985 and sale deed 01.05.1985 and the actual physical possession of this land was also obtained from the vendors by the defendants. That thereafter, the defendants No. 1 to 4 amalgamated the two lands in one block and the intervening boundary along-with one small room was demolished. That the entire the entire land measuring 1 bigha 18 biswas of two Khasra bearing No. 387 and 388 was converted into one plot which still exists at site and there is absolutely no demarcation now in between the two lands. That CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 9 of 39 the defendants also planted trees of Safeda in the said land. That some trees of Kikar and Neem already existed there. That at present there are 7 Safeda trees, 3 Kikar trees, 4 Neem trees, and 1 Sehtut Tree exist at site.
11. It is further averred that after purchasing the land, the defendants No. 1 to 4 applied for mutation of the said land in the revenue records. That mutation number 1402 dated 28.03.1989 and mutation No. 1403/NT/NG/88-89 dated 28.03.1989 was duly sanctioned in favour of the defendants and the entire land of Khasra No. 388 measuring 19 biswas was mutated in favour of the defendants No. 1 to 4. That before effecting mutation, not only a notice was issued in the name predecessor of plaintiff i.e. Sh. Ram Singh by the Naib Tehsildar concerned intimating him about the mutation proceedings but also a public notice was also issued in the village by the Naib Tehsildar before effecting the mutation. That Sh. Ram Singh was duly served with the said notices but he chooses not to contest the same personally because he very well knew the land is suit stood transferred in favour of the defendants. That the Khasra Girdawaries regarding the aforesaid land showing the actual physical possession of the defendants No.1 to 4 over the land in suit are in favour of the defendants. That the allegations of the plaintiffs that they came in know about the two sale deeds in favour of the defendants which were executed by Sh. Balbir Singh acting as a GPA of Sh. Ram Singh, and that too consequent upon GPA dated 03.05.1982 executed by Sh. Ram Singh only on 04.02.2005, when they obtained the certified copies thereof from the Revenue Authorities, Najafgarh New Delhi are false and baseless on the face of it. That the entries in the revenue record CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 10 of 39 not only with regard to the title of the land in suit and but also about the possession of the land proves the falsehood of the allegations. That now after lapse of about 20 years it does not lie in the mouth of the plaintiffs to allege that they were not aware of the mutation order regarding the sale deeds in question.
12. It is further averred that the suit for cancellation and declaration of the sale deeds in favour of the defendants and also with regard to the cancellation and declaration of GPA in favour of Sh. Balbir Singh are hopelessly barred by time. That late Sh. Ram Singh was fully aware of the said documents since the date of execution thereof. That these persons have also been obtaining the copies of Khasra Girdwari and Khatauni from the Patwari regarding their lands in village Mitraon where the name of the replying defendants in place of late Sh. Ram Singh used to be shown as Bhumidhars in possession of the said land. That the plaintiffs are not in possession of any part of the suit land of Khasra No. 388 measuring 19 biswas and as such the suit for injunction without seeking the relief of possession is not maintainable and the same is liable to be dismissed.
13. It is further averred that the present suit is nothing but a fraud on the Court and the same is liable to be dismissed. That the plaintiffs are guilty of suppressing the material documents and facts from this Court. That as per the allegations contained in para No. 2 of the plaint, the plaintiffs' father is alleged to have raised construction of a boundary wall on the land of Khasra No. 388 measuring 19 biswas situated in the Lal Dora Abadi of Mitraun, Delhi, but the plan filed by the plaintiffs themselves depict no such wall at the spot. That they have filed a plan in respect of land measuring 2044. sq. yds. which is totally CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 11 of 39 in contrast to the allegations made in the plaint. That as per the allegations in the plaint, the plaintiff claims boundary wall over an area of 956 sq. yds, only. That they also suppressed that before effecting mutations in favour of the defendants by Naib Tehsildar, a notice was issued in the name of Sh. Ram Singh and also another public proclamation was issued in the village by the Revenue department inviting objections but their father did not contest the same personally. That however, Sh. Ram Singh was duly represented through his appointed attorney at the time of passing of the mutation order dated 28.03.1989. That the plaintiffs have falsely alleged that no such notice or public proclamation was issued in the village by the Naib Tehsildar concerned before passing mutation orders. That such a notice and proclamation are part of the mutation file. That the plaintiffs have also obtained certified copies of all such papers from the mutation file, but they did not knowingly and deliberately filed all such documents along-with the plaint.
14. It is further averred that defendant No.1 has received information that the plaintiffs along-with their associates are having evil eyes over the suit land and that they are planning to cut the standing trees on the land. That in order to save the trees and the land, the defendant No. 1 called the police and the police had gone to the spot on 26.01.2005. That the police met the plaintiff No.1 during the course of enquiry made by the police at the spot, the people of the village including the plaintiff No. 1, acknowledged the right, title and interest of defendants No. 1 to 4 over the suit land.
15. It is further averred that the defendant No. 1 to 4 have been in actual and physical possession of the suit land right CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 12 of 39 from the year 1985 till date and the said possession has been open and continuous to the knowledge of late Sh. Ram Singh. That after his death, the plaintiffs herein have been seeing the possession of the defendants. That no proceedings of eviction against the defendants were filed by these persons. That in view of this also, whatever right title or interest which late Sh. Ram Singh was having over the suit land stood extinct long-long back by operation of law.
16. It is further averred that the suit is nothing but an after thought. That the orders of mutation and the name of the recorded bhumidhar in respect of the suit land stood changed from the name of Sh. Ram Singh in the name of the defendants No.1 to 4 vide mutation orders dated 28.03.1989. That the said orders of mutation or the subsequent entries made in the revenue record in the name of the defendants were never challenged by Sh. Ram Singh and after his death, the plaintiffs herein. The defendants have prayed for dismissal of the present suit.
17. The defendant No.5 also filed his written statement, stating therein that the plaintiffs have no cause of action to file the present suit. That the suit land was validly transferred by the defendant No.5 in favour of the defendants No. 1 to 4 on the basis of the GPA executed by late Sh. Ram Singh in favour of the defendant No.5. That the defendant No.5 was fully competent to execute the sale deed on the basis of the GPA dated 03.05.1982 executed by late Sh. Ram Singh. That not only this the actual physical possession of the suit land was handed over by late Sh. Ram Singh at the spot to the defendant No.5 and this fact was duly acknowledged by late Sh. Ram Singh in his affidavit dated 12.04.1982. That after execution of the aforesaid documents by CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 13 of 39 late Shri Ram Singh, he was left with no right, title or interest in the suit land and the said transfer fully binds his heirs and successor-in-interest. That the suit is hopelessly barred by time as the GPA on the basis of which the defendant No.5 executed the sale deeds in favour of defendants No. 1 to 4 was executed on 03.05.1982 of which Sh. Ram Singh was fully aware. That not only this Sh. Ram Singh was also aware of the execution of the sale deeds in favour of defendants No. 1 to 4 by the defendant No.5. That Sh. Ram Singh was also aware the mutation proceedings before the Naib Tehsildar Najafgarh, Delhi which were ordered to be effected from 28.30.1989. That throughout all this period Sh. Ram Singh and after his death, the plaintiffs were fully aware about all the the suit land and they never challenged the competency of the defendant No.5 to execute the sale deed or about the validity of the GPA.
18. It is further averred that during his life time Sh. Ram Singh initially entered into an agreement to sell regarding the sale of land measuring 19 biswas bearing hhasra No. 388, village Mitraon for a sum of Rs. 20,000/- on the 26.07.1980 in favour of Sh. Sunder Singh and the defendant No.5. That in pursuance of the said agreement Sh. Ram Singh also received a sum of Rs. 5,000/- from these persons vide receipt dated 26.07.1980 which was duly registered with the Sub-Registrar. That however, the said deal was not materialized and Sh. Ram Singh asked for more amount for the transfer of the aforesaid land. That accordingly, a supplementary agreement to sell dated 12.04.1982 was executed between Sh. Ram Singh and Sh. Sunder Singh and the defendant No.5 for a total sum of Rs. 50,000/- for the sale of the land in question. That in part performance of the contract to sell Sh. Ram CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 14 of 39 Singh handed over the actual physical possession of the said land to the defendant No.5 and Sh. Sunder Singh and also sworned an affidavit dated 12.04.1982 in this regard. That in pursuance to the agreement of sale, Sh. Ram Singh while acknowledging the receipt of Rs. 5,000/- as sale consideration, received the balance sale consideration of Rs. 45,000/- and the receipt of the same was also registered in the Sub-Registrar Office on 03.05.1982. That before this Sh. Ram Singh had obtained a Lal Dora Certificate dated 25.07.1980 from the Revenue Assistant Delhi to establish that the suit land falls in the lal dora, Abadi of village Mitraun, Delhi. That this certificate was handed over by Sh. Ram Singh to the defendant No.5 at the time of agreement to sell and same was later on handed over to defendants No. 1 to 4 at the time of execution of the sale deeds in their favour. That in order to assure the defendants about the complete transfer of the land in the event of any mishappening, Sh. Ram Singh has also executed a Will dated 03.05.1982 in their favour which was duly registered with the Sub-Registrar-II. That simultaneously, a GPA dated 03.05.1982 was also executed by Sh. Ram Singh in favour of the defendant authorizing him to execute sale deed.
19. It is further averred that above said GPA was got attested by Sh. Ram Singh from Notary Public Delhi. That now after death of Sh. Ram Singh, the said GPA also binds the plaintiffs. That in pursuance of the aforesaid powers and authorities conferred by Sh. Ram Singh, the defendant No.5 transferred the entire suit land in favour of defendants No. 1 to 4 by executing two sale deeds. That likewise a similar sale deed was executed by the defendant No.5 in favour of Sh. Sukh Chand Jain and Sh. Amrit Jain vide deed dated 18.05.1985 and the CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 15 of 39 defendants No. 1 to 4 were put in actual physical possession of the entire land of Khasra No. 388 Village Mitraon, Delhi. That since then, it is the defendants No. 1 to 4 who have been in actual physical possession of the said land to the exclusion of all others. That the defendants have constructed the boundary wall over the land with a small room thereon, before the transfer of the land in favour of the defendants No. 1 to 4 and this fact has been in the knowledge of the plaintiffs and late Sh. Ram Singh. That the defendants No. 1 to 4 had applied for mutating their names in the record of the Revenue Department. That notice of such mutation proceedings was issued in the name of Sh. Ram Singh. That a proclamation in this behalf was also issued in the village before effecting mutation.
20. It is further averred that the name of the recorded bhumidhar in respect of the suit land stood changed from the name of Sh. Ram Singh in the name of the defendants No. 1 to 4 vide mutation order dated 28.03.1989. That the said order of mutation or the subsequent entries made in the revenue record in the name of the defendants No. 1 to 4 were never challenged by Sh. Ram Singh and after his death, plaintiff herein. That therefore, the plaintiffs are estopped from challenging the GPA dated 03.05.1982 and two sale deeds executed by the defendant No.5 in favour of the defendants No. 1 to 4. That defendant No.5 became the owner of the suit land by virtue of documents viz, agreement to sell, power of attorney, Will, receipts etc. for consideration and the defendant No.5 along-with Sh. Sunder Singh were put in actual physical possession of the suit land by Sh. Ram Singh and Sh. Ram Singh divested himself all his rights, power and authority to deal with the said land. It is prayed that CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 16 of 39 the present suit may be dismissed with costs.
21. Vide order dated 22.05.2006, the followings issues were framed:
"i. Whether plaintiff is entitled for a decree of cancellation as prayed? OPP ii. Whether plaintiff is entitled for a decree of declaration as prayed? OPP iii. Whether plaintiff is entitled for a decree of permanent injunction as prayed? OPP iv. Whether the plaintiff has no locus standi to file the present suit as claimed? OPD v. Whether the suit is barred by law of limitation as claimed? OPD vi. Whether the suit is not maintainable in its present form? OPD vii. Relief"
22. In order to prove her case, the plaintiff No.1 Sh. Dilbagh Singh examined himself as PW1 and tendered his evidence by way of affidavit Ex. PW1/A. He deposed on the lines of the averments made in the plaint. He relied upon site plan i.e. Ex. PW1/1. PW1 was duly cross-examined by Ld. Counsel for defendant No. 1 to 4. The cross-examination conducted by Ld. Counsel for defendants No. 1 to 4 was adopted by Ld. Counsel for defendant No.5 on behalf of defendant No.5.
23. The plaintiff examined Sh. Bimal Rai, Kanoongo, SDM office, Najafgarh as PW2. He was summoned for produce the record of mutation case titled as Ram Singh Vs Rakesh Jain, bearing M/1402/NT/NGH/88-89, Goeshwara No. 2875, pertaining to village Mitron, Delhi, decided on 28.03.1989, Ex. PW2/1 (OSR). He also brought record of Khatoni-Paimaish for the year 1984-85, Ex. PW2/2 (OSR). He also brought record of CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 17 of 39 Khasra Girdwari for the year 1987-88, Ex. PW2/3 (OSR). PW2 was not cross-examined by Ld. Counsel for the defendants despite opportunity being given in this regard.
24. The plaintiff examined Sh. Rajbir Singh as PW3. He deposed that he was a resident of village Mitruan, Delhi where he was having industrial agricultural land and residential houses. He further deposed that the plaintiff belongs to his village and consequently, he was very well known to him. He deposed that he had seen the late father of the plaintiff namely, Sh. Ram Singh who was allotted the residential plot during the consolidation proceedings situated within the extended abadi deh of village. He further deposed that the plot allotted to the plaintiff bearing Khasra No. 388 measures around 01 bigha. He further deposed that he had been seeing the plaintiff and their predecessor in interest namely Sh. Ram Singh using the plot bearing Plot No. 388 since consolidation proceeding which took place in the revenue estate in the year 1972-73. He deposed that the land is presently enclosed by the boundary wall which is constructed over plot No. 387 and 388 since the adjacent plot bearing No. 387 is also owned by the family of the plaintiff. He further deposed that he has never seen anybody else in occupation of this residential plot No. 388 at any point of time. He deposed that in the year 2005, a dispute arose in the suit property bearing plot No. 388 when police officials had started making enquiries about the residential plot from the plaintiff and at that point of time, it was apparently noticed by the plaintiff that the defendants on the basis of some fabricated documents were claiming rights, title or interest over the plot. He deposed that the father of the plaintiffs never sold, alienated or transferred possession of the plot to any CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 18 of 39 person during his lifetime since he had always seen him in actual physical possession of the plot till the time of his death. He further deposed that in the February, 2005, the defendants along with some of their associates had come to the site and threatened to take illegal and forcibly possession of the plot in his absence. He deposed that since the plaintiff along with him and other residents of the village resisted the threats and the defendants could not illegally dispossessed the plaintiff from the suit property. PW3 was duly cross-examined by Ld. Counsel for defendants No. 1 to 4.
25. The plaintiffs examined Sh. Jagbir Singh as PW4 who deposed that he was original resident of village Mitraon and was holding agricultural as well as residential house. He deposed that the plaintiff's were known to him as they also belong to the same village and that he had known the father of the plaintiff namely Sh. Ram Singh who had expired about 15 years ago. He further deposed that his father was allotted residential plots during consolidation proceedings in Khasra No. 388 measuring about one bigha in the extended abadi deh of the village. He deposed that he had seen the plaintiffs and their predecessor in interest in actual physical possession of the plot since the inception. He further deposed that the plot at present was bounded by a boundary wall on two sides and was being used by the plaintiff as a Gher and Gitwar for tethering the cattles and for keeping bitodas etc. He deposed that the adjacent plot bearing plot No.387 is owned by the family of the plaintiffs and both these plots are enclosed by a common boundary wall and there is no intervening wall in between the two plots. He further deposed that he had never seen any person except the plaintiffs and their CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 19 of 39 father in possession of the plot in any capacity whatsoever. He deposed that a dispute had arisen over the suit property in the year 2005 when some police officials came to the plot and had made enquiries from the plaintiffs. He further deposed that the defendants and some of their associates visited the plot of the plaintiffs and threatened to take illegal and forcible possession of the plot in his presence when the plaintiff along-with neighbours had successfully resisted the threats of the defendants. He also deposed that the defendant and his associates at the time of giving threats to take illegal possession of the suit property had also claimed that they had purchased the property from the late father of the plaintiffs which claim was absolutely false. He deposed that father of the plaintiffs or the plaintiffs themselves had never sold or transferred the plot bearing No. 388 to the defendants or anybody else. PW4 was duly cross-examined by by Ld. Counsel for defendants No. 1 to 4.
26. After examination of PW4, the plaintiffs' evidence was closed on 17.09.2016 and the case was fixed for defendants evidence.
27. The defendants No.1 to 4 examined Sh. M.S. Jakhar, Kanoongo, SDM Office, Najafgarh as DW1. He was a summoned witness who was summoned to bring original record pertaining to Khasra Girdawari for the year 1989-90 to 2012-13. he brought the certified copies of the said record Ex. DW1/1 (colly.). DW1 witness was cross-examined by Ld. Counsel for plaintiffs.
28. The defendants No.1 to 4 examined defendant No.2 Sh. Amrit Jain as DW2. He deposed on the lines of averments CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 20 of 39 made in the written statement filed by defendants No. 1 to 4 and relied upon the following documents:
(i) Sale Deeds dated 01.05.1985 and 18.05.1985 Ex. DW2/1 to DW2/2,
(ii) General power of attorney dated 03.05.1982, receipt dated 26.07.1980, agreement to sell dated 12.04.1982, affidavit dated 30.05.1982, receipt dated 03.05.1982 and Will dated 03.05.1982, Ex. DW2/3 to Ex. DW2/8,
(iii) Original la dora certificate Ex. DW2/9,
(iv) Certified copies of the mutation files Ex. DW2/10 and Ex.DW2/11,
(v) Site plan Ex. DW2/20,
(vi) Akshijra of the suit property Ex. DW2/21,
(vii) Certified copy of the statement of Sh. Dilbagh Singh Ex. DW2/22.
DW2 was duly cross-examined by Ld. Counsel for plaintiffs.
29. The defendants No.1 to 4 examined Sh. Manish, Halka Patwari, Tehsil Najafgarh, as DW3. He was a summoned witness who was summoned to produce the original record pertaining to original Khatoni Pehmaish of the village Mitraon, Delhi. The witness produced the original record and copy of the same was already exhibited as Ex. DW 2/12 and the witness deposed the same to be true and correct. DW3 was duly cross- examined by Ld. Counsel for the plaintiffs.
30. The defendants No.1 to 4 examined retired SI Chandu Lal as DW4. DW4 deposed that in January 2005, he was posted as ASI in police station Najafgarh Delhi. He deposed a CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 21 of 39 telephone call was received in police station that in village Mitraon, Delhi near ata mill and bijli ghar some person were cutting trees and there was apprehension of breach of peace. He deposed that thereafter, he went to the spot and at the spot, PCR van was already there and people of the village were also present. He further deposed that one axe, one rope and hacksaw were taken in possession and enquiry was made from the people. He deposed that on enquiry, he was told that the plot belongs to Sh. Sukh Chand Jain. He deposed that he had talked to the complainant and he told that he would come on the next day. He further deposed Sukh Chand Jain told him that one Sh. Ramesh Chand and Sh. Dilbagh Singh might be involved in the cutting of trees. He further deposed that he recorded the statement of Dilbagh Singh and Ramesh Chand. The witness was shown statement of Sh Dilbagh Singh purportedly recorded by him the court file in respect of case titled as 'Ramesh Chand Vs Sukh Chand Jain & Ors.' decided on 13.11.2014 by the Court of Ms Namrita Agarwal which has been brought by the Ahlmad of the Court of Ms. Pinki, ADJ, Dwarka, Delhi. The witness, after perusing the same, deposed that it was the same statement which was recorded by him during the enquiry. The aforesaid statement was exhibited as Ex DW4/E. He deposed that thereafter, he closed the enquiry and certified copy of the enquiry report including DD entry, statements of witnesses and closure report were exhibited as Ex. DW4/A to Ex. DW4/F. He deposed that Sh. Dilbagh Singh signed his statement in his presence. DW4 was cross-examined by Ld. Counsel for the plaintiffs.
31. The defendants No.1 to 4 examined Sh. Prabhunath Singh, Kanoongo, Record Room Revenue, SBI Building, first CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 22 of 39 floor, Tis Hazari Courts as DW5. He was a summoned witness who brought the original scheme file relating to village Mitraun, Delhi Goshwara No. 282. He deposed that certified copy of the proceedings dated 06.10.1982 consisting of 06 pages were issued from their office and same was issued as per original record and the record was exhibited as Ex.DW5/A. The witness was cross- examined by Ld. Counsel for the plaintiffs.
32. The defendants No.1 to 4 examined Sh. B.N. Srivastava as DW5. The witness was inadvertently given the serial number as DW5 since Sh. Prabhunath Singh was examined as DW5. The witness tendered his evidence by way of affidavit Ex. DW5/A and he relied upon the following documents:
(i) Report dated 31.07.2017 Ex. DW5/1,
(ii) Photographs Ex. DW5/2 to Ex. DW5/29,
(ii) CDR Ex. DW5/30.
DW 5 deposed that he was working as handwriting and fingerprints expert for over 45 years and he had received training in this science from and expert of Delhi i.e. late Sh. M.K.Mehta. He deposed that he had also done one year certificate course in Forensic Science from University of Delhi, in year 1970. He deposed that he had given opinion in around 4000 cases in different Courts of law in the states of U.P., Haryana, Punjab, Rajasthan and Delhi. He further deposed that in the present case, he had examined the thumb impressions of Sh. Ram Singh on Regd. receipt dated 26.07.1980 Ex. PW2/3, supplementary agreement to sell Ex. PW2/4, affidavit Ex. PW2/5, receipt Ex. PW2/6, back of receipt, Will Ex. PW2/7, G.P.A Ex. PW2/8 and one thumb impression of Sh. Ram Singh on consolidation file of CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 23 of 39 Village on Mitron, Goshwara No. 282. He further deposed that these thumb impressions have been marked as Q-1 to Q-25 and 'A' on the photographic enlargements. He further deposed that in his opinion the all clear thumb impressions and marked as Q1 to Q-25 and 'A' have been affixed by one and the same person. He deposed that the reasons for his opinion were given in report Ex. DW5/1. He further deposed that he took the photographs of the above mentioned documents with Canon Digital Camera and copied the files on CDR with the help of properly maintained computer and the contents of CDR were the copy of the files taken by way of digital Camera Ex.DW5/30. He further deposed that he got photographs prepared from a colour lab under his supervision. He deposed that the computer output containing the information mentioned in the affidavit was produced by his computer during the period over which the computer was used by him and he was having lawful control over the use of computer and the information contained in the electronic record reproduced from the information fed into the computer in the ordinary course of its operations and nothing material has been tempered with. The witness was duly cross-examined by Ld. Counsel for plaintiffs.
33. The defendants No.1 to 4 examined Sh. Amit Mittal, as DW6. He was a summoned witness who brought trial Court file titled as Ramesh Chand Vs Sukh Chand Jain, decided on 13.01.2014. The witness was not cross-examined by Ld. Counsel for the plaintiffs despite opportunity being given in this regard.
34. The defendants No.1 to 4 examined Sh. Manoj Kumar as DW7. He has brought summoned record mutation file No. M44 Tehsildar Najafgarh, 2001-02, decided on 11.10.2001 CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 24 of 39 regarding virasat of Ram Singh S/o Giani, Village Mitraon, Delhi Ex. DW7/A (colly.). He deposed that the certified copy of the record was as per the original record and was issued from their office. He also brought original Khatoni 2012-13 of village Mitraon, Delhi regarding Khasra No. 80/19 (4-16), 80/20(4-16) 325 (0-18). He deposed that the certified copy of the Khatoni Ex. DW7/B tallied with the original record and was issued by Sh. Manish, Patwari on 02.04.2018. He also brought the Khasra Girwdawari of Khasra No. 2016-17 and deposed that certified copy on record Ex. DW7/C tallied with the original and was issued by Sh. Manish, Patwari on 02.04.2018. He was cross- examined by Ld. Counsel for the plaintiffs.
35. The plaintiff No.1 i.e. Sh. Dilbagh Singh was recalled for cross-examination at the instance of defendants No. 1 to 4 on 16.01.2019. Thereafter, defendants' evidence was closed.
36. Thereafter, the plaintiffs led rebuttal evidence. The plaintiffs examined Sh. Dilbagh Singh in rebuttal evidence and tendered his evidence by way of affidavit Ex. PW1/B. He deposed that after the death of his father, he had filed an application for mutation the holding left behind by him at the time of his death. He deposed that at the time of filing of the said mutation application, he was neither in possession of any resident plot No.325 nor was aware about its allotment to late Sh. Ram Singh in as much as prior to sanction of mutation, he had not obtained any copy of the fard/khatoni. He deposed that since he was not aware about the details of the holding recorded in the name of his late father, as such, he was advised to file an application for mutation without mention the particulars of the land held by him. He deposed that at no point of time, he came to CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 25 of 39 know about the allotment of residential plot No.325, situated in extended abadi of Village Mitraon, prior to the application filed by the defendant and after which he made enquiries, whereupon it was transpired that the said residential plot bearing plot No.325 was, in fact, in possession of a number of residents of the village who were in its possession since even prior to the consolidation proceedings. He further deposed that even at the time of sanctioning the mutation order, neither Halqa Patwari, nor the Tehsildar disclosed to him about the allotment of residential plot No.325. He further deposed that as far as the plaintiffs were concerned, since the said plot No.325 was neither in possession of the defendants or the deceased Sh. Ram Singh, as such, they had no concern whatsoever with the same. The witness was duly cross-examined by Ld. Counsel for defendants No. 1 to 4.
37. Thereafter, the evidence was closed and the case was fixed for final arguments.
38. I heard the arguments advanced and perused the record. Issue wise findings are as follows.
Issue No. I Whether plaintiff is entitled for a decree of cancellation as prayed? OPP & Issue No. II Whether plaintiff is entitled for a decree of declaration as prayed? OPP & Issue No. IV Whether the plaintiff has no locus standi to file the present suit as claimed? OPD & CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 26 of 39 Issue No. V Whether the suit is barred by law of limitation as claimed? OPD & Issue No. VI Whether the suit is not maintainable in its present form? OPD
39. All these issues are taken together as they are inter- related and demand a common finding. The burden to prove issues No. i and ii was on the plaintiffs, whereas, the burden to prove issues No. iv, v and vi was on the defendants. The case of the plaintiffs is that their father was owner of the plot No.388 since its allotment to him during the consolidation proceedings in 1972-73. It is pleaded that since its allotment, the plaintiffs' father and after his death, the plaintiffs were in continuous possession of the plot. The cause of action for filing the present suit has been stated to be that on 26.01.2005, the police had come to the land in question at the instance of defendants No. to 4 and started making inquiries as the defendants were claiming to be owners of the land in question. It is the further case of the plaintiffs that thereafter, they went to the revenue officials and inspected the records and they found about the GPA dated 03.05.1982 Ex. DW2/3 executed by the father of the plaintiffs' namely, Sh. Ram Singh in favour of defendant No.5 and the sale deeds dated 01.05.1985 Ex. DW2/2 and 18.05.1985 Ex. DW2/1 executed by defendant No.5 in favour of defendants No.1 to 4. It is pertinent to mention that both the sale deeds Ex. DW2/1 and Ex. DW2/2 are registered documents. These sale deeds executed in the year 1985 but the challenge to these document was made for the first time in the year 2005 i.e., when the present suit was CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 27 of 39 filed. The suit is absolutely silent as to what happened between 1972-73 and 2005. It is settled law that registration of a sale deed itself amounts to notice. Reliance in this placed on Azhar Sultana v. B. Rajamani (2009) 17 SCC 27 and Amar Nath Vs. Gian Chand & Anr., Civil Appeal No. 5797/2009, dated 28.01.2022 . Hence, when the sale deeds Ex. DW2/1 and Ex. DW2/2 were registered, the limitation to challenge these documents started running from the date of their execution (since the date of registration relates back to the date of execution). The cause of action had arisen during the life time of the Sh. Ram Singh and therefore, now the plaintiffs' action seeking challenge to the documents Ex. DW2/1 and Ex. DW2/2 was hopelessly barred by time.
40. The plaintiffs have even failed to establish that the alleged transaction of sale of the plot in question was not within their knowledge. The PW1 was specifically asked during his cross-examination why they did not seek mutation of the plot No. 388 after the death of Sh. Ram Singh to which he deposed that they did not feel it necessary as they were in possession. However, interestingly, the plaintiffs had sought mutation of the 'Virasat' of Sh. Ram Singh in respect of plot No. 80/19, 80/20 and 325 vide application dated 18.09.2001 but no mutation of the plot No. 388 was sought by the plaintiffs. The relevant record of the mutation in respect of plot No. 80/19, 80/20 and 325 i.e. Ex. DW7/A, Ex. DW7/B and Ex. DW7/C was proved on record by DW7. PW1 during his cross-examination did not dispute the mutation of the plot No. 80/19, 80/20 and 325. He also admitted that the patwari has mentioned in the Khatoni that there was no other Khata of Sh. Ram Singh in the village. After taking into CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 28 of 39 consideration all these facts, it is an irresistible conclusion that the plaintiffs did not seek the mutation of the land in question because it was already sold by Sh. Ram Singh and the plaintiffs were quite aware about it. Even if it is to be assumed that the plaintiffs were not aware about the sale of the land in question immediately after the death of Sh. Ram Singh, but after these mutation proceedings in the year 2001 in respect of plot No. 80/19, 80/20 and 325, their plea that they became aware about the sale of the plot in question only on 26.01.2005 is liable to be rejected. Once it is held that they were aware in the year 2001 about the plot in question being no more available in revenue record as belonging to Sh. Ram Singh, their suit is 2005 to seek declaration and cancellation of documents Ex. DW2/1, Ex. DW2/2 and Ex. DW2/3 was clearly barred since as per article 58 of the Schedule to the Limitation Act, 1963, the limitation period is only three years when right to sue first accrues.
41. The plaintiffs have also failed to establish that the documents Ex. DW2/3 i.e. GPA executed by Sh. Ram Singh in favour of defendant No.5 and consequently, the sale deed executed i.e. Ex. DW2/1 and Ex. DW2/2 were sham and void documents. It is the case of the plaintiffs that their predecessor- in-interest Sh. Ram Singh did not execute any GPA in favour of defendant No.5. However, no evidence whatsoever has been produced to prove these facts. The case of the plaintiffs has been confined to the allegations that no documents for sale were executed by Sh. Ram Singh and they were no having knowledge about the said documents. The plaintiffs did not produce any documents containing admitted thumb impressions of Sh. Ram Singh before the Court nor they lead any evidence to even prima CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 29 of 39 facie establish that the GPA Ex. DW2/3, receipt of Rs. 5,000/- Ex. DW2/4, agreement to sell Ex. DW2/5, affidavit Ex. DW2/6, receipt of Rs. 45,000/- Ex. DW2/7 and registered Will Ex. DW2/8 did not bear the thumb impressions of late Sh. Ram Singh. The plaintiffs have also failed to bring on record any circumstance surrounding the execution of these documents creating their execution doubtful. The evidence in this regard is absolutely wanting. It is trite law that registered document carries presumption of genuineness and onus to prove otherwise is on the person who challenges it. Reliance in this regard Manik Majumder & Ors. Vs. Dipak Kumar Saha (Dead) through Lrs. & Ors., Civil Appeal No. 2965 OF 2022 dated 13.01.2023. It was held by Hon'ble Supreme Court in Prem Singh & Ors. Vs. Birbal & Ors., 2006 Supp. 1 SCR 692:
There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, wou Id be on a person who leads evidence to rebut the presumption. In the instant case, Respondent No. I has not been able to rebut the said presumption.
Thus, there was a presumption of correctness in favour of Ex. DW2/1 and Ex. DW2/2 as they are registered documents. The onus was on the plaintiffs to prove that the documents were invalid, sham and void documents. As already observed, the plaintiffs have not even tried to lead any evidence in this regard except oral deposition of PW1. Even PW1, except bare denials, could not bring forth any circumstance which would cast doubt on the genuineness of these documents.
42. It is urged on behalf of the plaintiffs that the GPA Ex. DW2/3 is not a registered document and hence, the execution of sale deeds Ex. DW2/1 and Ex. DW2/2 on the basis of GPA Ex.
CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 30 of 39 DW2/3 was not valid in the eyes of law. It is relevant to note that power of attorney is not a document which creates an interest in the immovable property and hence, it is not compulsorily required to be registered under section 17 of Registration Act; its registration is optional and a person on the strength of an unregistered power of attorney can validly execute an instrument of sale. In this regard, it is relevant to advert to the observations made by Hon'ble Supreme Court in Manik Majumder (supra), which read as under:
"18. .....................Section 17 of the Registration Act speaks about documents of which registration is compulsory, while Section 18 deals with documents of which registration is optional. Clause (f) of Section 18 states that all other documents not required by Section 17 to be registered, may be registered at the option of the parties. In other words, the documents which are compulsorily registrable are listed under Section 17 and such list is exhaustive. The documents, registration of which is optional, are specified in clauses (a) to (e) of Section 18 but this list is not exhaustive.Under clause (f) of Section 18 "all other documents" which do not require registration under Section 17 are also optionally registrable such as the power of attorney, document relating to adoption etc.. A power of attorney is not a compulsorily registrable document when it is duly notarized. It carries the presumption of being valid in view of Section 85 of Evidence Act. Since, a power of attorney does not come within the ambit of Section 17 or clause (a) to (e) of Section 18, registration of a power of attorney is optional. An attorney holder may execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor or principal, provided he has been specifically given power to sell the property of the principal. The nature and scope of power of attorney has been explained by this Court speaking through R.V. Raveendran, J. in Suraj Lamp and Industries vs. State of Haryana (2012) 1 SCC 656. The relevant paragraphs of the judgment reads as under:
"20. A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorises the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see Section 1-A and Section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 31 of 39 does not have the effect of transferring title to the grantee.
21. In State of Rajasthan v. Basant Nahata [(2005) 12 SCC 77] this Court held: (SCC pp. 90 & 101, paras 13 & 52) '13. A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
***
52. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers of Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.' An attorney-holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor."
43. Further, power of attorney also carries presumption of genuineness under section 85 of Indian Evidence Act, 1872.
CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 32 of 39 Section 85 of Evidence Act reads as under:
85. Presumption as to powers-of-attorney.-- The Court shall presume that every document purporting to be a power-of attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, [Indian] Consul or Vice-Consul, or representative of the [Central Government], was so executed and authenticated.
In the present case, the GPA Ex. DW2/3 is a notarized document and hence, carries with it presumption of genuineness under section 85 of Evidence Act. It was for the plaintiffs to dislodge the presumption and prove that the said GPA was never executed by late Sh. Ram Singh. However, the plaintiffs have miserably failed to discharge their burden. In fact, no evidence at all was adduced by the plaintiffs in this regard.
44. Further, after execution of the sale deeds Ex. DW2/1 and Ex. DW2/2, the land in question was also got mutated in their favour vide mutation dated 28.03.1989. The defendants No. 1 to 4 have proved the relevant record pertaining to the mutation record kept with revenue authorities Ex. DW2/10 and Ex. DW2/11 in this regard. The mutation is not disputed by the plaintiffs. However, it is their case that no notice of the proceedings was served upon late Sh. Ram Singh. It is pertinent to mention that the mutation in favour of the defendants No.1 to 4 has not been challenged by the plaintiffs before the competent revenue Court. Without challenging the mutation in favour of the defendants No.1 to 4 before the competent revenue authorities, the plaintiffs cannot contend before this Court that the same was bad since no notice was issued to late Sh. Ram Singh. The section 185 of Delhi Land Reforms Act, 1954 bars the jurisdiction of a civil Court in this regard. Assuming that the plaintiffs can somehow present a challenge to the said mutation, CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 33 of 39 even then, the contention of the plaintiffs is liable to be rejected. The defendants have produced the entire record of the mutation proceedings and the record itself makes it clear that notices Ex. DW2/P-2, Ex. DW2/P-3 and Ex. DW2/P-4 were issued to late Sh. Ram Singh. Thus, the stand of the plaintiffs that no notices were issued to late Sh. Ram Singh has been contradicted. The plaintiffs have sought to take a stand that no thumb impression of late Sh Ram Singh exists on these notices. However, in the considered opinion of this Court, this plea cannot be entertained by this Court as the same should have taken by the plaintiffs before the competent revenue authorities while presenting a challenge to the mutation in favour of the defendants No. 1 to 4. Moreover, the mutation was granted by competent revenue authority in favour of the defendants No.1 to 4, without it being challenged in accordance with law, the same is to be presumed to be correct. No circumstance of fraud in according the said mutation has been brought on record.
45. On the other hand, the defendants No. 1 to 4 have duly proved the documents sale deeds Ex DW2/1 and Ex. DW2/2, GPA Ex. DW2/3, receipt of Rs. 5,000/- Ex. DW2/4, agreement to sell Ex. DW2/5, affidavit Ex. DW2/6, receipt of Rs. 45,000/- Ex. DW2/7 and registered Will Ex. DW2/8. The plaintiffs have not been able to disprove these documents. Except oral evidence of PW1 asserting only self serving statements, nothing has been proved on record which create suspicion on execution of these documents. The defendants No. 1 to 4 have taken the defence that late Sh. Ram Singh has also obtained ' Lal Dora' certificate dated 25.07.1980 in respect of the land in question which he has handed over at the time of execution of the CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 34 of 39 above said documents to Sh. Balbir Singh and Sh. Sunder Singh. The defendants No.1 to 4 have brought on record the said certificate Ex. DW2/9 which lends credibility to their defence.
46. It is the case of the plaintiffs that their father late Sh. Ram Singh and after him, they are in continuous possession of the land in question. To prove possession of the land in dispute, the plaintiffs have relied upon the Khasra Girdawari for the year 1987-88 Ex. PW2/3 and the testimonies of PW3 and PW4. Except the entry for the year 1987-88, all the subsequent entries are in the name of defendants No.1 to 4. The defendants No. 1 to 4 have brought on record the entries starting from 1989 till 2012 by way of Khasra Girdawaries Ex. DW1/1 (colly) and Ex. DW2/12 to Ex. DW2/19. The Ld. Counsel for defendants No.1 to 4 have contended that the entry vide Ex. PW2/3 is a stray entry and does not give rise to presumption of possession in favour of the plaintiffs. In Sir Bhimeshwara Swami Varu Temple Vs. Pedapudi Krishna Murthi & Ors., AIR 1973 SC 1299, Hon'ble Supreme Court has held that the entries in the revenue records for large number of years in respect of ownership and possession of land with certain persons does not stand rebutted by mere stray entries in favour of others when the evidence is of uncertain character and is inadequate. In the present case, the sale deeds Ex. DW2/1 and Ex. DW2/2, GPA Ex. DW2/3, the mutation accorded vide mutation dated 28.03.1989 and the Khasra Girdawari Ex. DW1/1 (colly) and Ex. DW2/12 to Ex. DW2/19 commencing from 1989-2012, do not leave any scope of presumption in favour of the plaintiffs through a stray enrty vide Ex. PW2/3 and hence, the same is liable to be ignored. Further, the testimonies of PW3 and PW4 only cannot be CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 35 of 39 considered as a proof of possession of the plaintiffs since the documentary evidences suggest otherwise.
47. The plaintiffs have relied upon the site plan Ex. PW1/1 and it is claimed that it depicts the land in question. As per the site plan, the total area of the land has been shown to be 18,224 sq. ft. or 2024 sq. yds. It is interesting to note that the defendants No.1 to 4 have pleaded in their written statement that they had also purchased the adjoining plot bearing Khasra No. 387 measuring 19 biswa from Sh. Sukhbir Singh vide sale deed dated 18.05.1985 and after purchasing both the plots i..e 387 and 388, they had amalgamated them into one single block. In response, the plaintiffs have stated in their replication that these two plots were enjoyed as single entity by the plaintiffs and their uncles and the same were in their possession only. However, this averment in the replication is contradictory to the specific averments in the plaint in respect to the identification of the plot No. 388. Further, during the proceedings of the present case, the defendants No. 1 to 4 led the evidence by bringing on record the judgment dated 15.05.2019 Ex. DX passed by Ld. ADJ-01, South West, Delhi vide which the dismissal of the suit filed by Sh. Ramesh Chander (who has been stated to be in possession of plot No. 387 by the plaintiffs) and others in respect of plot No. 387 seeking declaration, cancellation and permanent injunction was upheld. There is categorical finding in the said judgment by Ld. ADJ to the effect that Sh. Ram Chander and others who had filed the suit had failed to prove their possession on the said plot and the defendants No.1 to 4 were held to be in the possession of plot No. 387. In fact, the plot No. 387 was thereafter sold by the defendants No. 1 to 4 vide registered sale deed dated 04.10.2019.
CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 36 of 39 The copy of the sale deed is on record. If the land shown in the site plan Ex. PW1/1 was comprising of plot No. 387 and 388 and was in possession of the plaintiffs then how the same was held to be in possession of defendants No. 1 to 4 and how the same was sold by them, has been left unanswered. This circumstance also disproves the site plan Ex. PW1/1. Taking all these circumstances into consideration, there is no hesitation in holding that the claim of the plaintiffs is absolutely frivolous.
48. There is one more reason to reject the claim of the plaintiffs regarding possession of the land in question. It is settled law that in case of a immovable property which is a vacant site, the possession follows the title. Reliance in this regard is placed upon the judgment of Anathula Sudhakar Vs. P. Buchi Reddy (DEAD) By Lrs. & Ors., 2008 5 SCR 331. The defendants No.1 to 4 have proved their title over the land by sale deeds Ex. DW2/1 and Ex. DW2/2, and the mutation Ex. DW 2/10 and Ex. DW2/11. It is not disputed by either of the parties that the land in question is a vacant site. Hence, it is the possession of the defendants No. 1 to 4 which would be presumed in law and not of the plaintiffs. Further, when it is held that the plaintiffs are not in possession, it was mandatory for the plaintiffs to sue for possession also and the simplicitor suit for declaration and injunction, without seeking possession, was not maintainable. The ratio of Anathula Sudhakar (supra) speaks for itself in this regard.
49. As a result of the above discussion, it is clear that the plaintiffs have not able to prove that the GPA Ex. DW2/3 and sale deed Ex. DW2/1 and Ex. DW2/2 were invalid and void in law. The defendants No.1 to 4 have been able to prove their title CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 37 of 39 and possession over the plot bearing Khasra No.388, Village Mitraon, Delhi. It is also apparent that the suit was clearly barred by limitation and the plaintiffs being divested from the land in question had no locus standi to filed the present suit. The plaintiffs have omitted to sue for possession and thus, the present suit was not maintainable.
Consequently, the issues No. i, ii, iv and vi are decided in favour of the defendants and against the plaintiffs.
Issue No. I Whether plaintiff is entitled for a decree of permanent injunction as prayed? OPP
50. To be entitled to grant of injunction against the defendants, the plaintiffs ought to have proved their case for declaration. The relief of injunction was consequential to the relief of declaration. When the plaintiffs are not entitled for the relief of declaration, they cannot be granted injunction against the defendants.
Accordingly, the issue No. iii is also decided in favour of the defendants and against the defendants.
Relief
51. In view of my aforesaid findings, the suit of the plaintiffs is dismissed.
Decree sheet be prepared accordingly.
Realistic costs of Rs. 2 lakhs are imposed on the plaintiffs in view of the judgment of Salem Advocates Bar CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 38 of 39 Association, Tamil Nadu Vs. Union of India, 2005 6 SCC 344, payable to the defendants No.1 to 4.
File be consigned to record room.
Digitally
signed by
Announced in open Court PRANAV
PRANAV JOSHI
On this 23th Day of December, 2024 JOSHI Date:
2024.12.23
14:18:03
+0530
(PRANAV JOSHI)
ACJM-01/NEW DELHI
PHC/DELHI.
THE THEN
JSCC/ASCJ/GJ (CENTRAL)
TIS HAZARI COURTS/DELHI.
CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 39 of 39