Delhi District Court
Lajwanti vs Edmc on 17 September, 2024
IN THE COURT OF SH. MAYANK GOEL, JSCC/ASCJ/GJ,
SHAHDARA, KARKARDOOMA COURTS, DELHI
CIVIL SUIT No. 371/2018
LAJWANTI Vs. EDMC AND ORS.
CNR No. DLSH03-000716-2018
In the matter of:
LAJWANTI(DECEASED)
W/o SH. RAM JI DASS,
R/o 527, VISWASH NAGAR,
SHAHDARA, DELHI-110032.
THROUGH HER LRs,
A. SH. RAMJI DAS (HUSBAND)
B. SH. ANIL (SON)
C. SH. SANDEEP (SON)
BOTH R/o A-99, 2nd FLOOR,
VIVEK VIHAR, DELHI.
D. NEELAM BUDHIRAJA (DAUGHTER)
R/o H. No. 527,
GALI No. 2, VISWAS NAGAR,
DELHI.
E. SMT. ANJU KHARBANDA (DAUGHTER),
W/o SH. GULSHAN KHARBANDA,
ARAM PARK, KRISHNA NAGAR,
DELHI.
F. SMT. MANJU DHINGRA (DAUGHTER),
W/o SH. KULDEEP DHINGRA,
R/o H. No. 5/11, 2nd FLOOR,
___________________________________________________________________________________________________
CIVIL SUIT No. 371/2018
LAJWANTI Vs. EDMC AND ORS. Page No. 1 of 11
CNR No. DLSH03-000716-2018
F-BLOCK, KRISHNA NAGAR,
DELHI-110051. ........ Plaintiffs
Versus
1. EDMC,
THROUGH ITS COMMISSIONER,
PATPARGANJ INDUSTRIAL AREA,
DELHI-110092.
2. GOVT. OF NCT OF DELHI,
THROUGH SDM/R.A.
SEEMAPURI, DELHI.
3. SHO,
PS HARSH VIHAR,
DELHI.
4. SMT. JEEVANI.
5. GEETA,
D/o SMT. JEEVANI,
BOTH R/o H. No. 271,
NEAR KALI MANDIR,
VILLAGE SABOLI,
DELHI-110093. ........ Defendants
SUIT FOR PERMANENT INJUNCTION.
Date of Institution : 20.04.2018
Date of reserving of judgment : 12.09.2024
Date of Judgment : 17.09.2024
Decision : DECREED
JUDGMENT
BRIEF FACTS PLEADED IN THE PLAINT
1. The brief facts which are narrated by the plaintiff is that the plaintiff is the absolute owner of plot ad-measuring 813 sq. yards out of Khasra No. 12, Pratap Nagar, Village Saboli, ___________________________________________________________________________________________________ CIVIL SUIT No. 371/2018 LAJWANTI Vs. EDMC AND ORS. Page No. 2 of 11 CNR No. DLSH03-000716-2018 Delhi-110093(hereinafter mentioned as "suit property") vide registered sale deed dated 19.05.2005. That one person namely Sh. Man Singh had filed false and frivolous suit for injunction against the husband of the plaintiff qua the suit property which was dismissed by the court of Ld. SCJ, East, KKD Courts, Delhi and an appeal against the said order was also dismissed. That one plot of plaintiff ad-measuring 150 sq. yards of Khasra No. 12, Pratap Nagar, Village Saboli, Delhi-110093, was lying vacant and defendant no. 4 and 5 tried to raise illegal construction in the garb of mandir and consequently, the plaintiff has filed the suit for permanent injunction wherein an injunction order has been passed in favour of plaintiff in Civ. Suit bearing no. 276/2017 titled as "Lajwanti Vs. EDMC and Ors." and defendants were directed not to raise any construction over the suit property. That since the plaintiff is a senior citizen lady and residing far away from the suit property and in order to protect the suit property, the plaintiff intent to construct a boundary wall and affix a gate over the suit property. That the plaintiff started raising the construction of boundary wall on 10.04.2018 over the suit property but the defendant no. 4 and 5 in collusion with the officials of defendant no. 1 to 3 started creating hindrance in the construction of boundary wall without any right, title or interest in the suit property. That the plaintiff is the absolute owner of the suit property vide registered sale deed dated 19.05.2005 and intend to construct a boundary wall on the suit property which is legally permissible. Hence, the plaintiff has filed the present suit seeking decree of permanent injunction in favour of the plaintiff and against the defendants for restraining the defendants, their agents, servants, officials, associates, etc. from creating any hindrance in the construction of boundary wall and affixing a gate over the suit property i.e. plot ad-measuring 813 sq. yards out of Khasra No. 12, Pratap Nagar, Village Saboli, Delhi-110093, as specifically shown in Red Colour in the site plan annexed with the plaint.
2. Summons of the suit were issued to the defendants. The defendant no. 3 was proceeded ex-parte vide order dated 25.08.2018. The defence of defendant no. 1, 4 and 5 was struck off vide order dated 05.02.2019. The right of defendant no. 2 to file WS was closed vide ___________________________________________________________________________________________________ CIVIL SUIT No. 371/2018 LAJWANTI Vs. EDMC AND ORS. Page No. 3 of 11 CNR No. DLSH03-000716-2018 order dated 25.08.2018 and defendant no. 2 was proceeded ex-parte vide order dated 02.02.2024. WS not filed by any of the defendants.
3. In order to prove their case, the LRs of the plaintiff examined Sh. Anil Buddhiraja as PW 3, who tendered his evidence by way of affidavit, Ex. PW 3/A. He relied upon following documents:
1. Ex. PW3/1 (OSR) Copy of sale deed dated 19.05.2005.
2. Ex. PW3/2 Copy of relinquishment deed dated 25.09.2023.
3. Mark A Copy of Khasra girdawari.
4. Ex. PW 3/4(Colly) 6 Photographs.
5. Ex. PW 3/5 Certified copy of judgment dated 02.04.2013 of Ld. ADJ, East, KKD Courts, Delhi.
6. Ex. PW 3/6 Certified copy of order of Hon'ble High Court of Delhi.
7. Ex. PW 3/7 Site plan.
8. Ex. PW3/8 Death certificate of plaintiff/Smt. Lajwanti.
PW 3 was duly cross-examined by Ld. Counsel for defendant no. 4 and 5. He deposed that he had filed the documents by virtue of which Sh. Ramji Dass become owner of the property in Khasra No. 12, Village Saboli, Delhi, which are Ex. PW 3/1. He further deposed that he cannot tell the boundaries of the land mentioned in Ex. PW 1/1, area ad-measuring 2 bighas forming part of Khasra No. 12, Village Saboli, Delhi. He further deposed that he did not know entire measurement of land falling in area of Khasra No. 12, Village Saboli, Delhi. He further deposed that he cannot tell the date, month and year about the demarcation of area 2 bighas out of Khasra No. 12, Village Saboli, Delhi. He further deposed that he cannot tell as to whom the rest of the portion of Khasra No. 12, Village Saboli, Delhi, out of 2 bighas had been sold. He further deposed that he did not apply for recording of his name in the revenue records replacing the name of Smt. Lajwanti and Sh. Ramji Dass as owner of the property subject matter of Ex. PW 1/1 being legal heir. He further deposed that after 2015 onwards, he did not apply for mutation of the property subject matter of Ex. PW 1/1 in the name of Smt. Lajwanti, Sh. Ramji Dass and himself.
___________________________________________________________________________________________________ CIVIL SUIT No. 371/2018 LAJWANTI Vs. EDMC AND ORS. Page No. 4 of 11 CNR No. DLSH03-000716-2018 He further deposed that it is correct that his name has not been recorded as owner of the property area measuring 2 bighas and 813 sq. yards out of Khasra No. 12, Village Saboli, Delhi. He further deposed that he did not know whether the name of late Smt. Lajwanti and Late Sh. Ramji Dass has been recorded as owner in the records of DDA and MCD in respect of property measuring 2 bighas and 813 sq. yards out of Khasra No. 12, Village Saboli, Delhi. He further deposed that it is correct that in the records of DDA and MCD, the possession of area measuring 2 bighas and 813 sq. yards out of Khasra No. 12, Village Saboli, Delhi, has not been recorded in his name.
3.1 The LRs of the plaintiff also examined Sh. Trilok Chand, Halka Patwari, Sub- Division, Seemapuri, Shahdara, Nand Nagri, Delhi, as PW 2, who brought the summoned record i.e. Khautoni in respect of suit property. The certified copy of the same is Ex. PW 2/1(OSR). He also brought the original record of Khasra girdawari of the suit property and the attested copy of the same is Ex. PW 2/2(OSR).
PW 2 was duly cross-examined by Ld. Counsel for defendant no. 4 and 5. He deposed that the land in dispute is urbanized and agriculture activities are not taking place in it. He further deposed that it is correct that entire land of Khasra No. 12 is 6-09 biswa. He further deposed that Smt. Shanti Devi is the owner of 4-09 biswa being half share out of entire land 6-09 biswa. He further deposed that he cannot disclose the boundaries of the land stated to be owned by plaintiff out of Khasra No. 12, area 6-09 biswa. He further deposed that as per record, he cannot tell whether Khasra No. 12 is built up or not.
Thereafter, PE stands closed.
4. I have heard the final arguments and have carefully gone through the case file Findings:-
5. It is argued by Ld. Counsel for the plaintiff that the defendant no. 2 and 3 were proceeded ex-parte in the present case. It is further argued by Ld. Counsel for the plaintiff that the ___________________________________________________________________________________________________ CIVIL SUIT No. 371/2018 LAJWANTI Vs. EDMC AND ORS. Page No. 5 of 11 CNR No. DLSH03-000716-2018 defence of defendant no. 1, 4 and 5 was struck off in the present case. It is further argued by Ld. Counsel for the plaintiff that the case of the plaintiff stands proved unrebutted and unchallenged and the decree can also be passed under Order VIII Rule 10. It is further argued by Ld. Counsel for the plaintiff that plaintiff has placed on record the copy of sale deed Ex. PW3/1(OSR) showing ownership of Smt. Lajwanti over the suit property and subsequently the copy of relinquishment deed Ex. PW3/2 showing ownership of PW3 over the suit property after the death of Smt.Lajwanti. It is further argued by Ld. Counsel for plaintiff that plaintiff has placed on record the certified copy of Judgment dated 02.04.2013 of Ld. ADJ, East, KKD Courts, Delhi Ex. PW3/5 whereby the appeal filed by the husband of defendant no.4 and father of defendant no.5 against the judgment of trial court dismissing the suit of the husband of defendant no.4 and father of defendant no.5 for decree of permanent injunction on the suit property was also dismissed. It is further argued by Ld. Counsel for the plaintiff that both the suit and the appeal filed by the husband of defendant no.4 and father of defendant no.5 against the husband of the main plaintiff was dismissed on the ground that the husband of defendant no.4 and father of defendant no.5 fails to prove their ownership of the suit property and any record of mutation. It is further argued by Ld. Counsel for the plaintiff that the second appeal filed by husband of defendant no.4 and father of defendant no.5 against the order of Ld. ADJ, East, KKD Courts, Delhi was also dismissed by Hon'ble High Court of Delhi and certified copy of order is Ex. PW3/6. It is further argued by Ld. Counsel for the plaintiff that PW2 had placed on record Khautoni and Khasra-Girdawari of the suit property showing Smt. Lajwanti as Khatedar and bhumidar of the suit property.
It is argued by Ld. Counsel for the defendant no. 4 and 5 that it is a settled law that the plaintiff has to prove his case on its own and cannot take the benefit of the weakness of the defendant that the defence of defendant was struck off and no document has been placed in record by the defendant in his defence. For this, Ld. Counsel for the defendant relied upon the judgment of Hon'ble Supreme Court of India in Rangammal Vs. Kuppuswami and Another,(2011) 12 SCC 220, wherein it was held that the burden lies on the party who relies on the validity of the ___________________________________________________________________________________________________ CIVIL SUIT No. 371/2018 LAJWANTI Vs. EDMC AND ORS. Page No. 6 of 11 CNR No. DLSH03-000716-2018 document to prove its genuineness and only then the onus will shift on the opposite party to dislodge such proof and establish that the document is sham or bogus. It is further held that the party who alleged the sale deed to be not genuine, sham or bogus has to prove nothing until the party relying upon the document established its genuineness.
It is further argued by Ld. Counsel for the defendant no. 4 and 5 that it is also a settled law that no one can transfer the better title than he himself has and the plaintiff had failed to prove that the person who had done sale deed in favour of Smt. Lajwanti had right to transfer the suit property to her as in the sale deed Ex. PW3/1(OSR) it is mentioned that the executant is executing the said sale deed as lawful attorney of Sh. Yashpal and the plaintiff failed to prove that Sh. Yashpal was alive at the time of execution of the said sale deed as PW3 during his cross- examination failed to tell whether Sh. Yashpal was alive at the time of execution of the said sale deed. It is further argued by Ld. Counsel for the defendant no. 4 and 5 that in the sale deed Ex. PW3/1(OSR), it is mentioned that Sh. Yashpal is the actual owner of the suit property by virtue of Fard in the revenue record and it is settled law that the revenue records are not the document of ownership and relied upon the judgment of Hon'ble Supreme Court of India in Civil Appeal No. 7210 of 2011 in P. Kishore Kumar Vs. Vittal K. Patkar.
It is further argued by Ld. Counsel for the defendant no. 4 and 5 that the plaintiff has also failed to prove the site plan as PW3 during his cross-examination deposed that he had not seen the site plan and the plaintiff failed to examine the person who made the site plan. Ld. Counsel for the defendant relied upon the judgment of Hon'ble High Court of Delhi in Jagdish Prasad Aggarwal & Anr. Vs. Brij Nhusham & Ors, 65 (1997) DLT 111. It is further argued by Ld. Counsel for the defendant no. 4 and 5 that site plan filed by the plaintiff is very vague and even did not match with the sale deed Ex. PW3/1(OSR). It is further argued by Ld. Counsel for the defendant no. 4 and 5 that PW3 deposed that he did not apply for mutation of the property subject matter of Ex. PW3/1 in the name of Late Smt. Lajwanti, Sh. Ramji Dass and himself. It is further ___________________________________________________________________________________________________ CIVIL SUIT No. 371/2018 LAJWANTI Vs. EDMC AND ORS. Page No. 7 of 11 CNR No. DLSH03-000716-2018 argued by Ld. Counsel for the defendant that PW3 deposed that it is correct that his name has not been recorded as owner of the property area measuring 2 bighas and 813 sq. yards out of Khasra no. 12, Village Saboli.
In the judgment of Hon'ble Supreme Court of India in Rangammal Vs. Kuppuswami and Anr, (2011) 12 SCC 220, wherein it was held that the party who alleged the sale deed to be not genuine, sham or bogus has to prove nothing until the party relying upon the document established its genuineness. However, in the present case, the defendant no. 2 and 3 were proceeded ex-parte and the defence of defendant no. 1, 4 and 5 was struck off. Therefore, none of the party alleged that the ownership documents placed on record by the plaintiff are not genuine, sham or bogus. PW3 during his cross-examination deposed that he cannot tell whether Sh. Yashpal was alive on 19.05.2005 or not. This does not mean that PW3 had deposed that Sh. Yashpal was dead on 19.05.2005. PW2 and PW3 were cross-examined by Ld. Counsel for defendant no. 4 and 5 but nothing came out which can disprove the case of the plaintiffs. Moreover, the PW3 has placed on record the sale deed Ex. PW3/1 (OSR) dated 19.05.2005 in favour of Smt. Lajwanti to show that she is the owner of the suit property. PW2 has brought the record of Khautoni and Khasra girdawari in respect of suit property in which the name of Smt.Lajwanti is registered as khatedar and bhumidaar respectively, which corroborates the sale deed Ex. PW3/1 (OSR). The fact that PW3 does not have proper knowledge about the documents does not means that the documents placed on record by him got unproved. The documentary evidence had to be contradicted by the documentary evidence. No document to contradict the document of the plaintiff has been placed on record by the defendant no. 4 and 5 as their defence have been struck off and defendant no. 4 and 5 had never moved any application to get the order strucking off their defence to be recalled or to get it set aside. Moreover, the suit filed by the husband of defendant no. 4 and father of defendant no. 5 of permanent injunction on the basis of ownership had been dismissed and the order of dismissal is upheld till Hon'ble High Court of Delhi, therefore, the said order would operate as Res-judicata on the claim of the husband of ___________________________________________________________________________________________________ CIVIL SUIT No. 371/2018 LAJWANTI Vs. EDMC AND ORS. Page No. 8 of 11 CNR No. DLSH03-000716-2018 defendant no. 4 and father of defendant no. 5 and their successor-in-interest as the owner of the suit property. Consequently, the defendant no. 4 and 5 have no right to interfere or to create any hindrance in the construction of boundary wall by the plaintiff.
The report filed by the MCD specifically shows that the suit property is urbanized village and in urbanized village, the owner can build the boundary wall of his property as per unified Building Bye-laws of 2016. Even in the case of agriculture land, the right of the land- holder to construct the boundary wall has been upheld by Hon'ble High Court of Delhi in Gaon Sabha Nanakheri Vs. Sucheta Memorial Trust, AIRONLINE 2018 DEL 1804, wherein it was held that :-
" there is no express or implied bar either under the DLR Act and Rules or under the Delhi Land Revenue Act and Rules, for a land holder of those lands which are subject matter of Section 81 of the DLR Act, to construct a boundary wall around his land, and such boundary wall can be constructed on the land by the land holder, with the clarification that the height of the boundary wall will not exceed 5 feet in height."
Since, the Hon'ble High Court had held that the land holder has right to build the boundary wall on the agriculture land, in the present case, the plaintiff is the owner of the suit property by virtue of the sale deed and name of Smt. Lajwanti is also recorded in Khasra- Girdawari and Khatauni i.e. the revenue records. Even though the revenue records are not the documents of ownership but they very well corroborate the sale deed filed by the plaintiff that he is the owner of the suit property.
Hon'ble Supreme Court of India in Anathula Sudhakar Vs. P. Buchi Reddy(Dead) by LRs and Ors., AIR 2008 SC 2033 has specifically held that the possession of the vacant land follows with the title and in the present case, the prima facie the title of the suit property is with the plaintiff. No cloud on the title of the plaintiff has been raised by any of the defendant.
___________________________________________________________________________________________________ CIVIL SUIT No. 371/2018 LAJWANTI Vs. EDMC AND ORS. Page No. 9 of 11 CNR No. DLSH03-000716-2018 The issues in civil cases are to be decided on the scale of preponderance of probabilities. The plaintiffs have proved their case by preponderance of probabilities. The doctrine of preponderance of probabilities was discussed in the judgment titled Postgraduate Institute of Medical Education and Research Vs. Jaspal Singh, (2009) 7 SCC 330 which reads as under :-
"17. In Syad Akbar Vs State of Karnataka (1980) 1 SCC 30 this curt dealt with in details the distinction beteen negligence in civil law n din criminal law. It has been held that there is 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".
In Dr. N. G. Dastane Vs. Mrs. S. Dastane on 19th March, 1975 AIR 1975 SC 1534, (1975), SCC 326, Hon'ble Supreme Court held as under :-
"24. The normal rule which governs civil proceedings is that a fact can be said to be established if it proved by a preponderance of probabilities. This is for the reason that under the Evidence Act, Section 3, a fact is said to be proved when the court either believes it to exist considers its existence so probably that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact-situation will act on the supposition that the fact exists, if on weighing the various probabilities he inks that the preponderance is in favour of the existence of the particular fact. As a prudent man, so the court applies this test for finding whether a fact in issue can be said to be proved. The first step in this process is to fix the probabilities, the second to weigh them, though the two may often intermingle. The impossible is weeded out at the first stage, the improbable a the second. Within the wide range of probabilities, the court has often a difficult choice to make but it is this choice which ultimately determines where the preponderance of probabilities lies. Important issue like those which affect the status of parties demand a closer scrutiny than those like the loan on a promissory note: "the nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue "Per Dixon, J. In Wright vs. Wright (1948) 77 C.L.R. 191 at p. 210; or as said by ___________________________________________________________________________________________________ CIVIL SUIT No. 371/2018 LAJWANTI Vs. EDMC AND ORS. Page No. 10 of 11 CNR No. DLSH03-000716-2018 Lord Denning, "the degree of probability depends on the subject-matter. In proportion as the offence is grave, so ought the proof to be clear". Blyth vs. Blyth (1966) 1 A.E.R. 534 at
536. But whether the issue is one of cruelty or of a loan on a pronote, the test to apply is whether on a preponderance of probabilities the relevant fact is proved. In civil cases this, normally, is the standard of proof to apply for finding whether the burden of proof is discharged".
In view of abovementioned discussions and considering all the facts and circumstances, it may be said that the plaintiffs have been able to prove their case.
Relief
6. In view of the aforesaid discussion, the suit of the plaintiffs is hereby decreed and the defendants, their agents, servants, officials, associates etc. are hereby restrained from creating any kind of hindrance in the construction of boundary wall and affixing a gate over the suit property measuring 813 sq. yards, out of Khasra No. 12, in the abadi of Pratap Nagar, Village Saboli, Delhi-110093, as specifically shown in red colour in the site plan annexed with the plaint as per the unified building bye-laws of 2016.
7. Cost of the suit be awarded to the plaintiffs.
8. Decree sheet be prepared accordingly.
File be consigned to record room after necessary compliance.
Announced in open Court.
On this 17th September, 2024 This Judgment contains 11 pages and is signed by me.
(MAYANK GOEL) JSCC/ASCJ/GJ, SHAHDARA, KARKARDOOMA COURTS, DELHI ___________________________________________________________________________________________________ CIVIL SUIT No. 371/2018 LAJWANTI Vs. EDMC AND ORS. Page No. 11 of 11 CNR No. DLSH03-000716-2018