Delhi District Court
Smt. Malti Vashisth vs Smt. Kamlesh Chhibber on 8 June, 2023
IN THE COURT OF SH. PRITU RAJ : CIVIL JUDGE :
NORTH DISTRICT, ROHINI COURTS : DELHI
Suit No.: 36174/16
CNR No. DLNT-03-000760-2015
In reference:
Smt. Malti Vashisth
w/o Sh. Ramesh Chand Vashisth
r/o H. No. E-1/326, Sonia Vihar,
Delhi-110092 ...............Plaintiff
Vs.
1. Smt. Kamlesh Chhibber
w/o Sh Ram Sarup
r/o A-70A, Chankiya Place,
Pankha Road, Uttam Nagar,
Delhi-59.
2. Sh. Ganeshi Ram
s/o Sh. Brij Mohan
r/o H. No 1062, Gali no. 26A
Swatantar Nagar, Delhi-40
3. Smt. Meena Devi
w/o Sh. Mukhtiyar Singh
r/o VPO Asudha, Tehsil Bahadurgarh
Distt. Jhajhar, Haryana .........Defendants
Date of Institution : 30.06.2015
Date of reservation of Judgment : 30.05.2023
Date of Judgment : 08.06.2023
Suit No. 36174/16 Smt. Malti Vashisth Vs. Smt. Kamlesh Chhibber Page 1 of 12
JUDGMENT
1. The present suit has been filed by the plaintiff against the defendant seeking a decree of permanent injunction restraining the defendants or anyone claiming through them from forcibly dispossessing the Plaintiff from the suit property.
PLAINT:
2. The case of the plaintiff as per plaint in brief is that plaintiff claims herself to be the owner and in possession of residential plot no. 117, Block A, measuring 70 sq. yds, located in khasra no. 30/13, Revenue Estate, Village Bansali, Delhi, Abadi known as Deep Vihar [hereinafter called 'suit property'] which she claims to have bought from one Virender Singh on 10.11.2005. The Plaintiff claims that in April, 2014, a kalandra bearing no. 67B dated 04.04.2014 was lodged by the local police at PS Shahbad Dairy, which has not been decided till date qua the ratio of possession. The Plaintiff claims that Defendants being afraid of the consequences involving termination of proceedings u/S 145 CrPC, are trying to dispossess her from the suit property. Accordingly, the present suit has been filed seeking the relief of restraining the defendants or anyone claiming through them from forcibly dispossessing the Plaintiff from the suit property.
RELIEF:
Suit No. 36174/16 Smt. Malti Vashisth Vs. Smt. Kamlesh Chhibber Page 2 of 123. Following reliefs have been sought on behalf of the plaintiff in the plaint:
(i) To pass a decree of injunction in favour of the plaintiff and against the defendants or anyone claiming through them from forcibly dispossessing the Plaintiff from the suit property.
(ii) Costs of the suit be awarded in favour of the plaintiff and against the defendants.
(iii) Relief.
DEFENCE:
4. The Defendant no. 1 entered appearance on 18.09.2015.
Despite due service, the remaining Defendants remained absent and accordingly, D-2 was proceeded ex parte on 30.07.2016 and D-3 was proceeded ex parte on 22.05.2018. In the WS filed on behalf of D-1, the Defendant claimed that suit deserves outright dismissal as it is barred by S. 41 of the SRA, 1963. The Defendant claimed to be the owner of the suit property having purchased the property from its previous owner Smt. Swati Devi and claimed that the Plaintiff has illegally and forcibly dispossessed her from the suit property on the basis of forged documents. On merits, the contains of the plaint was denied in toto.
5. Vide order dated 25.03.2019, the following issues were framed:-
(I) Whether the suit of the plaintiff is not maintainable, being barred by S. 41(h) of the Specific Relief Act, 1963? OPD.Suit No. 36174/16 Smt. Malti Vashisth Vs. Smt. Kamlesh Chhibber Page 3 of 12
(II) Whether the Plaintiff is in settled and lawful possession over the suit property, i.e., residential plot no 117, Block A, measuring 70 sq. yds, out of khasra no. 30/13 in the Revenue Estate of village Pansali, abadi known Deep Vihar, Delhi and the Defendants are attempting unlawfully dispossess him therefrom? OPP.
(III) Relief.
EVIDENCE:
6. To substantiate her case, the plaintiff has examined herself witness as PW-1 by way of affidavit Ex. PW1/A and she relied upon the following documents:
(a) Ex.PW1/1 (OSR) is the copy of GPA.
(b) Ex.PW1/2 (OSR) is the copy of the affidavit.
(c) Ex.PW1/3 (OSR) is the copy of the agreement to sell.
(d) Ex.PW1/4 (OSR) is the copy of the receipt.
(e) Ex.PW1/5 (OSR) is the copy of the possession letter.
(f) Ex.PW1/6 (OSR) is the copy of the Will.
(g) Ex.PW1/7 (OSR) (Colly) is the copy of the previous chain of title of Sh. Virender.
(h) Ex.PW1/8 (OSR) is the copy of the title of the predecessor of the Sh. Virender.
(I) Ex.PW1/9 is the copy of the electricity bill of the suit property.
(j) Ex.PW1/10 (Colly) (running into 4 pages) are the photographs of the suit property alongwith receipt and DVD.
7. PE was closed vide order dated 17.02.2023.
8. The Defendant failed to lead DE despite due opportunities and accordingly, right to lead DE was closed on 23.05.2023.
Suit No. 36174/16 Smt. Malti Vashisth Vs. Smt. Kamlesh Chhibber Page 4 of 12FINDINGS OF THE COURT:-
9. Before embarking to decide the present case, it would be appropriate to reiterate the burden of proof required to be discharged in civil proceedings. As laid down in Postgraduate Institute of Medical Education and Research v. Jaspal Singh, (2009) 7 SCC 330, the burden which ought to be discharged in civil proceedings in not as strict as in criminal cases and in order for any party to succeed, he/it is required to prove his/its case on the preponderance of probabilities. The relevant portion of the aforesaid pronouncement is hereby produced here for the sake of brevity:
"It has been held that there is a marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceedings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt."
10.Further, Section 101 of the Evidence Act, 1872 defines "burden of proof" and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its Suit No. 36174/16 Smt. Malti Vashisth Vs. Smt. Kamlesh Chhibber Page 5 of 12 existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
11.Having determined the burden of proof required to be discharged in civil cases, this court will now proceed to give its issue wise findings as per the issues framed on 25.03.2019, are as follows:-
Issue No. (i) (I) Whether the suit of the plaintiff is not maintainable, being barred by S. 41(h) of the Specific Relief Act, 1963?
OPD.
12.The burden of proving this issue was upon the Defendants.
However, despite multiple opportunities, no evidence was led by the Defendants and owing to the failure of the Defendants to lead the same, the averments contained in the WS become merely bald averments which cannot be relied upon. Accordingly, this issue is decided in favour of the Plaintiff and against the Defendants.
Issue no. 2 (II) Whether the Plaintiff is in settled and lawful possession over the suit property, i.e., residential plot no Suit No. 36174/16 Smt. Malti Vashisth Vs. Smt. Kamlesh Chhibber Page 6 of 12 117, Block A, measuring 70 sq. yds, out of khasra no. 30/13 in the Revenue Estate of village Pansali, abadi known Deep Vihar, Delhi and the Defendants are attempting unlawfully dispossess him therefrom? OPP.
13.The burden of proving this issue lay upon the Plaintiff.
The present issue comprises of two sub issues-firstly, whether the Plaintiff is in the settled and lawful possession of the suit property and secondly, whether the Defendants are attempting to unlawfully dispossess the Plaintiff from the same.
14.As regards the first sub issue regarding possession, the Plaintiff has claimed to be in settled and lawful possession over the suit property, as is clear from the averments of para 1 of the plaint. The Defendant-1, in her WS, while denying the contents of the said para, has stated that the Plaintiff with D-2 and D-3 have hatched a conspiracy to snatch the property from D-1. However, the D-1 has admitted the possession of the Plaintiff over the suit property, albeit illegally, in para 5 of her preliminary objections wherein she has averred that the Plaintiff has illegally dispossessed D-1 in connivance with some local property dealers and created a forged and fabricated sequence of documents. Similarly, D-1 has claimed in para 11 of her preliminary objections that she is entitled for the possession of the suit property and has gone on to claim the restoration of the possession of the suit property to D-1 in para 13 of her preliminary objections. The factum of settled possession of the Plaintiff qua the suit Suit No. 36174/16 Smt. Malti Vashisth Vs. Smt. Kamlesh Chhibber Page 7 of 12 property is also corroborated by Ex. PW-1/9, i.e., the electricity bill which shows that the Plaintiff had been paying the electricity dues since 15 th April, 2015. Hence, the irrefutable conclusion from the aforesaid discussion is that the possession of the Plaintiff as regards the suit property has been admitted by D-1 and the same is also corroborated by Ex. PW-1/9. Now, as regards the claim of D-1 that the possession of the Plaintiff is unlawful since the same was obtained in connivance with local property dealers by illegally dispossessing the Plaintiff. Suffice it to say that the possession of anyone in established possession, even a trespasser, ought to be protected. Reliance in this regard is placed on decision of Hon'ble Apex Court in A Subramanian Vs. R Pannerselvam (Civil appeal no. 9472/2010), DOD 08.02.2021. The relevant portion of the Judgment is being reproduced below for the sake of brevity:
"23. The High Court was also right in its view that it is a common principle of law that even trespasser, who is in established possession of the property could obtain injunction. However, the matter would be different, if the plaintiff himself elaborates in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief. The High Court has rightly observed that a bare perusal of the plaint would demonstrate that the plaintiff has not narrated anything about the title dispute obviously because of the fact that in the previous litigation, DW 1 failed to obtain any relief. The High Court has rightly observed that the principle that the plaintiff cannot seek for a bare permanent injunction without seeking a prayer for declaration is not applicable to the facts of the present case.Suit No. 36174/16 Smt. Malti Vashisth Vs. Smt. Kamlesh Chhibber Page 8 of 12
24. We may also refer to judgment of this Court in Nair Service Society Ltd. v. K.C. Alexander [Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165] , where a three-Judge Bench of this Court presided by Hidayatullah, J. has reiterated the principle that possession is good against all but the true owner. The principle enumerated in judgment of Judicial Committee in Perry v. Clissold [Perry v. Clissold, 1907 AC 73 (PC)] , was noticed in para 17 to the following effect : (Nair Service Society Ltd. case [Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165] , AIR pp. 1173-174) "17. In our judgment this involves an incorrect approach to our problem. To express our meaning we may begin by reading Perry v. Clissold [Perry v. Clissold, 1907 AC 73 (PC)] , to discover if the principle that possession is good against all but the true owner has in any way been departed from. Perry v. Clissold [Perry v. Clissold, 1907 AC 73 (PC)] reaffirmed the principle by stating quite clearly : (AC p. 79) 'It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title."
15.It would be prudent at this stage to discuss the objections raised by the Defendant qua the case of the Plaintiff. The first objection which has been raised by D-1 is that the documents relied upon by the Plaintiff like the GPA, agreement to sell etc. are forged and fabricated and hence, same cannot be relied upon for the case of the Plaintiff. A perusal of the said documents, Ex. PW-1/1 (OSR) to Ex.
Suit No. 36174/16 Smt. Malti Vashisth Vs. Smt. Kamlesh Chhibber Page 9 of 12PW-1/6 (OSR) shows that while Ex. PW-1/1, Ex. PW-1/2 and Ex. PW-1/4 have not been signed by the Plaintiff nor contains any endorsement that the same has the thumb impression of the Plaintiff, Ex. PW-1/3 and Ex. PW-1/5 has been signed by one Malti Devi whereas the Plaintiff in the present case goes by the name of Malti Vashisth. Further, the Plaintiff has herself admitted in her cross examination dated 30.11.2022 that she signs as Malti Vashisth and not as Malti Devi. Therefore, the objection on behalf of the defendant regarding reliance upon Ex. PW-1/1 to Ex. PW-1/6 is not without merit. However, as discussed above, the possession of the Plaintiff over the suit property has been admitted by the Defendant-1 herself in her written statement coupled with the other corroborative evidence like the electricity bill, i.e., Ex PW- 1/9. Hence, despite successfully agitating the admissibility / reliability of Ex. PW-1/1 to Ex. PW-1/6, for determining the question of possession, the question of possession of the suit property, being admitted by D-1 herself in her WS, is of no use to D-1. Hence, the factum of the Plaintiff's possession over the suit property stands proved.
16.Having determined the factum of possession of the Plaintiff, the second sub issue which ought to be decided is whether the Defendant has been attempting to unlawfully dispossess the Plaintiff from the suit property. In this regard, the Plaintiff, examining herself as PW-1 has stated in her examination in chief that a kalandra bearing no. 67B dated 04.04.2014 u/S 145 CrPC was issued by PS Shahbad Suit No. 36174/16 Smt. Malti Vashisth Vs. Smt. Kamlesh Chhibber Page 10 of 12 Dairy. No cross examination on this aspect has been done by the Defendants. Moreover, no evidence was adduced by the Defendants, despite multiple opportunities, to rebut the same. In fact, the same has been admitted by the Defendants in para 12 of their preliminary objections wherein they have stated that a criminal complaint was lodged by her with the SHO, PS Shahbad Dairy regarding the rights of possession over the suit property. Hence, it becomes apparently clear that the Defendant has been disputing the possession of the Plaintiff over the suit property. This issue is accordingly decided in favour of the Plaintiff and against the Defendants.
17.During the course of arguments, Ld. Counsel for the defendant has strenuously argued that the Plaintiff is involved in the business of creating forged documents and forcibly acquiring the property of others. Ld. Counsel for the Defendant has stated that the Plaintiff has also remained in judicial custody for almost eight months regarding possession of property on forged and fabricated documents. However, the contentions of Ld. Counsel for the defendant deserves to be rejected at the outset in light of the settled proposition of law as contained in S. 52 IEA which makes the character of any person concerned, irrelevant in civil cases as regards the probability or improbability of conduct imputed to him / her.
18.Accordingly, issue no. 2 is decided in favour of the plaintiff and against the defendants.
Suit No. 36174/16 Smt. Malti Vashisth Vs. Smt. Kamlesh Chhibber Page 11 of 1219.In view of the aforesaid discussions, the suit of the Plaintiff is hereby decreed and the Defendants are hereby restrained from forcibly dispossessing the Plaintiff from the suit property. Costs of the suit are also awarded in favour of the Plaintiff and against the Defendants.
20. Decree Sheet be prepared accordingly.
21. All pending applications (if any) are hereby disposed off as not pressed.
22. File be consigned to the record room after necessary compliance.
Announced in the open Court on 08th June, 2023 (PRITU RAJ) CIVIL JUDGE (NORTH) ROHINI/DELHI/08.06.2023 Suit No. 36174/16 Smt. Malti Vashisth Vs. Smt. Kamlesh Chhibber Page 12 of 12