Delhi District Court
Shiv Tyagi vs Subhash Chand Jain And Ors on 12 July, 2024
IN THE COURT OF AASHISH GUPTA, DISTRICT JUDGE-01,
NORTH-EAST DISTRICT, KARKARDOOMA COURTS, DELHI
In the matter of
RCA DJ No. 32/21
CNR No. DLNE01-003856-2021
Shiv Tyagi
S/o late Sh. C.S. Tyagi
R/o 5299, Basant Road, Paharganj,
New Delhi-110055 ..... Appellant
versus
1. Subhash Chand Jain
S/o late Sh. Shekhar Chand Jain
R/o House No. 54, Darya Ganj,
New Delhi-110002
2. The S.H.O.
PS Khajuri Khas
North East District,
Delhi ..... Respondents
Date of institution : 15.11.2021
Reserved on : 02.07.2024
Date of Decision : 12.07.2024
JUDGMENT
1. This first appeal is filed against judgment and decree dated 04.10.2021. The appellant herein was defendant no. 1 in the main suit and the respondent herein was the plaintiff. The other defendant/defendant no. 2 was deleted by the Ld. Trial Court and RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 1 of 48 no notice was issued by this court to the said defendant no. 2 (arrayed as respondent no. 2 before this court).
2. For the sake of convenience, parties shall be referred to by the nomenclature used in the Ld. Trial Court. Thus, respondent no. 1 shall be referred as plaintiff and appellant as defendant.
3. Vide the judgment/decree under challenge, the suit of the plaintiff was partly decreed and the following reliefs were granted to him which read as under :
"23. In view of the discussion and the finding given in the issues above, the suit of the plaintiff is hereby partly decreed. Defendant no. 1 is directed to remove his lock put on the suit property i.e. 2 bighas out of Khasra no. 615/3 Min. situated in Revenue Estate of Village Sabhapur, Shahdara, Delhi as shown in red colour in the site plan Ex.PW1/2 enabling the plaintiff to have free ingress and egress to his property. Defendant no. 1 is further restrained from removing the goods/articles belonging to the plaintiff lying in the suit property and also he is further restrained from creating third party interest in the suit property in any manner and shall also not dispossess the plaintiff from the suit property without following due process of law. Relief qua the damages stands declined."
4. Defendant has filed the present appeal on the ground that the main suit of the plaintiff was solicitor suit for injunction and the Ld. Trial Court committed error by deciding the issue of title in the RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 2 of 48 said suit. As per him, this could not be done and was in breach of ratio of the judgment passed in the matter of Anathula Sudhakar vs P. Buchi Reddy (Dead) by LRs & Others AIR 2008 SC 2033.
5. It is also the contention of the appellant/defendant that the suit property was never the property of the plaintiff. As per defendant, he is title holder of the suit property and the Ld. Trial Court wrongly decided the said issue in favour of the plaintiff. Various other grounds have been taken in the appeal which shall be dealt with at the relevant stage.
6. The appeal has been contested by respondent no.1/plaintiff who argued that the Ld. Trial Court had rightly considered the evidence. It is his argument that the suit property is a different property than that of the defendant and the Ld. Trial Court rightly decided the issues in his favour and thereafter, granted the reliefs. He prayed for dismissal of the appeal.
7. Now, before I come to the facts of the case, a brief history of the manner in which the trial in the case proceeded may be noted. The suit in question was initially registered as CS (OS) No. 1462/2009 before the Hon'ble High Court of Delhi on 12.08.2009. Issues were also framed before the Hon'ble High Court vide order dated 16.09.2010. After leading of some evidence before the Hon'ble High Court, the matter was eventually ordered to be transferred to the court of Ld. District & Sessions Judge, North East on 02.02.2016. The matter thus, came before the court of Ld. ADJ RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 3 of 48 concerned for a future date. Eventually, vide order dated 04.08.2016, the matter was again ordered to be sent to the court of Ld. Senior Civil Judge, North East, Karkardooma. Eventually, the matter was tried in the court of Ld. Senior Civil Judge and disposed off vide the impugned judgment.
8. Now coming to the facts of the present case, as per the plaintiff, his father namely Shekhar Chand Jain was the registered owner of the suit property vide sale deed dated 19.10.1995 (for easy reference, this sale deed shall be referred to as document no. 1 in the body of the judgment; this document no. 1 was exhibited as Ex.PW1/1 by the Ld. Trial Court and shall also be referred by the exhibit number, at the relevant places). The `suit property' is an agricultural land measuring 2 bighas out of Khasra no.615/3 Min. situated in the revenue estate of Village Sabhapur, Shahdara, Delhi. The sale deed was executed in favour of Shekhar Chand Jain by one Ram Kali (acting through her attorney Sunil Jain). The said sale deed was registered at serial no. 4497 in book no. 1 in volume 2744 at page 117 to 121 before the Sub-Registrar IV, Delhi on 19.10.1995.
9. As per plaintiff, the said Shekhar Chand Jain/father of plaintiff died in the year 1998 and eventually, inter alia, qua the said property along with others (belonging to Shekhar Chand Jain), a family settlement was recorded between the plaintiff and other LRs of Shekhar Chand Jain in CS (OS) No. 1620/07 vide order dated 06.11.2008. The said settlement was made part of decree RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 4 of 48 passed by Hon'ble High Court of Delhi in 06.11.2008. As per plaintiff, the aforesaid property, in terms of the aforesaid decree passed in the aforesaid suit fell in the share of plaintiff and thus, plaintiff became absolute owner of the suit property.
10.As per plaintiff, since the purchase of the suit property on 19.10.1995, plaintiff and his father were in peaceful possession of the same. As per the pleadings of the parties, plaintiff used to run bitumen products unit in the name and style of M/s Britu-Chem Industry & Proofix Industry and some construction business also. As per the replication, various products qua the said industries like bitumen tanks, testing equipments, stone slabs, doors, windows, pipes etc were lying in the said property.
11.It is also his case that for the first time on 09.06.2009 an incident of breaking boundary and room wall took place at the suit property qua which a complaint was also made to SHO, Khajuri Khas. Thereafter, on 07.08.2009, the defendant visited the suit property and the defendant forcibly removed the plaintiff's staff/worker who was doing plastering and repairing work at the suit property (because of the damage caused earlier) by extending threats and under duress. On the said date, the defendant is stated to have put his locks on the entry door of the suit property.
12.As per the plaintiff, neighbours collected at the spot and one Ram Sahaj (who was the caretaker at the suit property and was getting plastering work done) reasoned with the police that the property RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 5 of 48 in question is in possession of the plaintiff and his goods are also lying there. Plaintiff claims that the concerned police did not pay any heed and this led him to file a complaint with the DCP concerned on 08.08.2009. It is pertinent to note that the present suit was filed on 12.08.2009 itself before the Hon'ble High Court of Delhi.
13.As per the pleadings, before filing of the present suit, a criminal writ petition bearing no. 1090/2009 was also lodged in the Hon'ble High Court of Delhi as police was not taking any action against defendant.
14.As per the plaintiff, since plaintiff apprehended that the defendant may remove all the articles/goods of the plaintiff from the suit property or created third party rights or occupy the property in any illegal manner; and because the defendant scrupulously and illegally put a lock on the gate of the suit property to stop ingress and egress of the plaintiff (which caused obstruction to the peaceful legal enjoyment of the plaintiff), plaintiff was forced to file the present suit.
15.It is pertinent to note that it is the specific contention of the plaintiff that the defendant had no right, title or interest in the suit property and plaintiff is in possession of the suit property as its owner and also because his goods are also lying in the suit property.
RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 6 of 48
16. Based on the said assertions, plaintiff preferred the following reliefs from the court :
a) Pass a decree of mandatory injunction in favour of the plaintiff and against the defendant no. 1, thereby directing the defendant no. 1 to remove the lock put by him for the purpose of putting an end to a wrongful state of things created by the defendant no. 1 to allow plaintiff to ingress and egress of his property;
b) Pass a decree of mandatory injunction in favour of the plaintiff and against the defendant no. 2, thereby directing the defendant no. 2 to take action as per law against the defendant no. 1 and prevent breach of law and order;
c) Pass a decree of permanent injunction in favour of the plaintiff and against defendant no. 1 thereby restraining the defendant no. 1 his servants, agents, employees etc from in any manner removing the goods of the plaintiff lying in the suit property or interfering with the peaceful possession of the plaintiff with respect to the suit property i.e. agricultural land measuring two Bigha out of Khasra no. 615/3 Min situated in the revenue estate of Village Sabhapur, Shahdara, Delhi as shown in red in the site plan annexed or in any manner forcibly, without due process of law dispossessing the plaintiff or in any manner creating third party rights in respect of the suit property.
RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 7 of 48
17.Before I come to the pleadings of the defendant, I may note that out of the aforesaid reliefs, relief (b) was not decided by the Ld. Trial Court as it was against defendant no. 2 who was deleted by the ld. Trial Court. There is no dispute qua the said relief before this court between the parties.
18.Now coming to the defence of the defendant, he claims that he himself is the owner of the suit property and has relied upon a chain of documents (described in Table-1 below) to assert his claim on the suit property.
19.It is pertinent to note that while the plaintiff has claimed that the suit property is measuring 2 bighas, as per the written statement of defendant, he is the owner of 1260 square yards of land (which defendant repeatedly calls suit property). It is not clear in the written statement that whether the defendant is claiming the entire suit property i.e. measuring 2 bighas or only 1260 square yards of land. During arguments, counsel for defendant argued that the entire land (which is more than 1260 square yards) was taken possession of by the defendant and thus, the written statement should be read to mean the entire land claimed by the plaintiff.
20.Be that as it may, as per the defendant a total land 2 bighas 12 biswas falling in Khasra no. 615/3 Min. in revenue estate of Village Sabhapur, Shahdara, Delhi-110094 was owned by one Chandru and Hari, both sons of Gokal as they were bhumidars of the said piece of land. They then sold the said entire land of 2 RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 8 of 48 bigha 12 biswas to one Ashok Kumar Jain vide sale deed dated 30.10.1986. As per the documents filed by defendant, the said sale deed was registered at serial no. 2140 in book 1, volume 1915 at page no. 94 to 96 before the concerned Sub-Registrar on 03.10.1986 (hereinafter referred to as document 2; this document was admitted by the plaintiff at the stage of admission/denial and was exhibited as Ex.D1 by the Ld. Trial Court).
21.Thereafter, as per the defendant, Ashok Kumar Jain sold 1260 square yards out of the said land to one Satish Kumar Jain. Defendant goes on to claim that the said land was purchased by Satish Kumar Jain through GPA dated 19.07.1991 along with agreement to sell, receipt, affidavit and Will all dated 19.07.1991 and like that.
22.As per defendant, he in turn purchased the said land from Satish Kumar Jain through a bayana agreement dated 30.12.1991 and the said agreement was eventually followed by notarized documents dated 16.03.1992 i.e. GPA, agreement to sell, receipt, affidavit dated 15.02.1992. It is pertinent to note herein that as per the bayana agreement dated 30.12.1991, even though the property papers in favour of Satish Kumar Jain were for an area of 1260 square yards, the said Satish Kumar Jain took possession of a bigger area of 2139 square yards from its previous owner i.e. Ashok Kumar Jain. As per the said agreement, defendant was agreed to take possession of the bigger area i.e. 2139 square yards but the title chain documents referred in the agreement dated RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 9 of 48 30.12.1991 pertain to land measuring 1260 square yards. In other words, while the title chain which came to the defendant was for a land measuring 1260 square yards, he agreed to take possession of an area measuring 2139 square yards. I have noted this fact as the same is an important aspect of the matter which shall be dealt later on in the body of the judgment.
23. At this stage, I may pause and note that in support of the said claim, the defendant has filed the following documents with his written statement:
Table-1 Serial Name of the document Exhibit number Remarks/Observations No. of this court 1 Sale deed executed by Chandru and Hari in Ex.D-1 This document is also favour of Ashok Kumar Jain. referred as document no.
1 in the body of the
judgment for easy
reference. This
document was admitted
by the plaintiff during
admission/denial. As per
the replication of the
plaintiff read with his
evidence as PW1, the
part of land referred in
this document measuring
1 bigha 12 biswas is a
different piece of land
than that of the plaintiff
and is NOT the suit
property.
2 Registered GPA, notarized agreement to sell, These documents were
notarized receipt, notarized affidavit, not led in evidence by
notarized Will and a site plan, all dated the defendant and were
19.07.1991 executed by Ashok Kumar Jain in denied by the plaintiff
favour of Satish Kumar Jain for a land during admission/denial.
measuring 1260 square yards falling in
Khasra no. 615/3 Min. in Village Sabhapur,
Shahdara, Delhi.
RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 10 of 48
3 Notarized bayana agreement dated These documents were
30.12.1991; notarized GPA, notarized not led in evidence by
agreement to sell, notarized receipt, notarized the defendant and were
affidavit, notarized Will and a site plan, all denied by the plaintiff
dated 19.07.1991 executed by Satish Kumar during admission/denial.
Jain in favour of Shiv Kumar It is pertinent to note
Tyagi/defendant for a land measuring 1260 herein that as per the
square yards falling in Khasra no. 615/3 Min. bayana agreement dated
in Village Sabhapur, Shahdara, Delhi. 30.12.1991, even though
the property papers in
favour of Satish Kumar
Jain were for an area of
1260 square yards, the
said Satish Kumar Jain
took possession of a
bigger area of 2139
square yards from its
previous owner i.e.
Ashok Kumar Jain. As
per the said agreement,
defendant was agreed to
take possession of the
bigger area i.e. 2139
square yards but the title
chain documents
referred in the
agreement dated
30.12.1991 pertain to
land measuring 1260
square yards. In other
words, while the title
chain which came to the
defendant was for a land
measuring 1260 square
yards, he agreed to take
possession of an area
measuring 2139 square
yards. I have noted this
fact as the same is an
important aspect of the
matter which shall be
dealt later on in the body
of the judgment.
24.Thus, as per defendant, through the aforesaid chain he became the owner of 1260 square yards of land. I may reiterate herein that as RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 11 of 48 noted in the remarks column of Table of documents referred above i.e. Table-1, even though defendant claims in his written statement that he became the owner of 1260 square yards of land, the documents filed by him, especially the bayana agreement dated 30.12.1991 speaks of an area of 2139 square yards and during arguments it was argued that defendant took possession of much larger area of 2139 square yards.
25.Now, a question arises if Satish Kumar Jain was the owner of 1260 square yards of land only (as per the documents mentioned at S. No. 2 of Table-1 above), how could he sell an area more than 1260 square yards or gave extra possession of about 1000 square yards to defendant ? This question shall become necessary when I shall deal with the defence of parties in light of the fact that plaintiff claims that his property measures about 2 bighas and not 1260 square yards being claimed by the defendant and also the fact that the property papers filed by the defendant are not qua the suit property at all.
26.The aforesaid question becomes more pronounced and important in light of the facts stated by the plaintiff in his replication. I shall come to the replication of the plaintiff a little later but at this stage I may note that in sum and substance, it is the case of the defendant before Ld. Trial Court that based on the chain of documents described in Table-1 above, he is in possession of the suit property (which as per his papers measures 1260 square yards though he took possession of a larger area in terms of a bayana RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 12 of 48 agreement dated 30.12.1991 referred at S. No. 3 of Table-1 above). It is his case that plaintiff is a stranger to the property and thus, the question that he trespassed in the suit property or any articles lying in the suit property are of the plaintiff, does not arise.
27.Another important aspect which bears out from the written statement of the defendant is that as per him a power of attorney executed by Ashok Kumar Jain in favour of Satish Kumar Jain was got cancelled by the said Ashok Kumar Jain on 07.04.2000.
As per him, this could not have been done as by that time Satish Kumar Jain had already sold the property to the defendant in 1992 itself. Copy of the said cancellation of power of attorney was filed by the defendant himself (exhibited as Ex.D3 before the Ld. Trial Court). As per defendant, the document of sale deed of the year 1995 i.e. document no.1 relied by the plaintiff is forged document.
28.He further claims that apart from the said sale deed, plaintiff had got a power of attorney from Ashok Kumar Jain in his favour for 1 bigha 6 biswas later and he thereafter used the said power of attorney dated 21.12.1994 to execute a sale deed in favour of his father Satish Kumar Jain on 03.08.1998 (this document shall be referred to as document no.3 in the body of this judgment for easy reference and the said document was admitted by the plaintiff during admission/denial and was exhibited as Ex.D2; this document was filed by the defendant but was never led in RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 13 of 48 evidence). He claims that the said transaction amounts creation of title in favour of plaintiff which could not have been done.
29.In order to appreciate the aforesaid contention of defendant it shall be relevant to note the facts stated by the plaintiff in his replication.
30.Plaintiff, in his replication claims that the defendant is trying to confuse two set of documents. As per plaintiff, the suit property came to him in the manner described in the plaint through sale deed i.e. document no. 1 (exhibited as Ex.PW1/1 in the evidence of plaintiff) read with consent decree passed by the Hon'ble High Court of Delhi in 2008 (exhibited as Ex.PW1/4 in the evidence of plaintiff). He claims that defendant has no concern with the suit property which specifically measures about 2 bighas.
31.As per plaintiff, the land being claimed by the defendant is a separate land deriving title from Chandru and Hari which is about 49 plots away from the suit property but which falls in the same Khasra i.e. 615/3 Min.
32.Now, coming back to the contention of the defendant qua the GPA dated 21.12.1994 read with sale deed dated 03.08.1998 (based on which defendant has claimed that said document amounts creation of interest by plaintiff in his own favour), it appears that while defendant claims that Ashok Kumar Jain had passed on the property measuring 1 bigha 6 biswas i.e. 1260 square yards to Satish Kumar Jain (vide document described at serial no. 2 of RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 14 of 48 Table-1 above), the same land was given by Ashok Kumar Jain to Satish Chand Jain/plaintiff (vide GPA dated 21.12.1994) and on the strength of the said GPA Satish Chand Jain/plaintiff then executed registered sale deed dated 03.08.1998 (document no. 3) in favour of his father. Thus, as per plaintiff, the suit property is different from the property measuring 1260 square yards and not the property of the defendant at all.
33.Plaintiff argued that the said land i.e. 1260 square yards (for which defendant relies upon the chain mentioned in Table-1) was actually purchased from Ashok Kumar Jain directly by Shekhar Chand Jain and, initially, plaintiff was appointed attorney by the said Ashok Kumar Jain qua the said land and it is on the strength of the same, a registered sale deed/document no. 3 was executed by plaintiff in favour of Shekhar Chand Jain/his father.
34.The defendant disputes the said attorney and sale deed and claims that once Ashok Kumar Jain has sold the property (vide chain of documents referred at serial no. 2 of Table-1), nothing remained with Ashok Kumar Jain and thus, any appointment of another attorney i.e. plaintiff or any sale deed in favour of father of plaintiff, through plaintiff, is bad.
35.Now, while the plaintiff's case is that the suit property is different from the land claimed by the defendant, defendant claims that the suit property is the same which is covered by his documents and both the sale deeds i.e. of 2 bighas in favour of Shekhar Chand RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 15 of 48 Jain/father of plaintiff in the year 1995 (document no. 1) and other of 1998 (document no. 3) are nothing but piece of paper.
36.Thus, in sum and substance, plaintiff's case is simple. He claims that he is the absolute owner and in possession of the suit property measuring 2 bighas. The title in the suit property came to the plaintiff vide the sale deed of 1995/Document-1 read with consent order and decree passed by Hon'ble High Court of Delhi in CS (OS) No. 1620/2007 dated 06.11.2008. It is the plaintiff's case that defendant has no concern with the said suit property. It is his specific case that not only the title in the suit property lie with the plaintiff, but also the settled possession of the same was with him.
37.As far as the title of the plaintiff is concerned, the same is premised on the aforesaid documents i.e. sale deed/Document-1 and the consent order dated 06.11.2008 in CS (OS) No. 1620/2007 passed by Hon'ble High Court of Delhi. Again, as far as the settled possession of the plaintiff is concerned, he has premised his case on the fact that he was running the business from suit property and his various goods described in pleadings were lying there.
38.Per contra, defendant disputes the title and possession of the plaintiff. He claims that he has some chain of documents (described in Table-1 above) in his favour and plaintiff is a nobody. He claims that the sale deed of year 1995/Document-1 or RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 16 of 48 the GPA of year 1994 and eventual sale deed of year 1998/document no. 3 cannot affect his property at all.
39.As already noted, plaintiff claims that defendant is trying to confuse the suit property with another property (a piece of land measuring 1260 square yards of which the original owner/bhumidar were one Chandru and Hari, sons of Gokal) and which was also of his father. The suit property measuring 2 bighas had one Ram Kali as its original bhumidar and is distinct and separate from the said land measuring 1 bigha 6 biswas and defendant is somehow trying to create a false title qua the suit property. The plaintiff claims that the chain of documents mentioned in Table-1 is a forged chain of documents.
40. Now, based on the pleadings, following issues were framed by the Hon'ble High Court of Delhi (as the suit was initially being tried there) vide order dated 16.09.2010 :
(i) Whether the plaintiff is the owner of the suit property? OPP
(ii) Whether the plaintiff was dispossessed forcefully on 7/8.08.2009? OPP
(iii) Whether the plaintiff is entitled to reliefs of mandatory injunction as prayed for in Clauses (a), (b) and (c)? OPP
(iv) Whether the plaintiff is entitled to pendent lite and future damages? OPP
(v) Whether the plaintiff is entitled to costs?
OPP RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 17 of 48
41. Plaintiff produced as many as nine witnesses in support of his case, the details of which are as under :
Serial Particulars of witnesses Nature of witnesses Remarks No. 1 PW1/Plaintiff/Mr. Subhash Plaintiff himself. He reiterated Chand Jain. his case by way of his affidavit in evidence Ex.PW1/A. 2 PW2/Mr. Ram Samajh. He supported the case of plaintiff He was the and relied upon his affidavit in caretaker of the suit evidence Ex.PW2/A. property and was causing some repair works at the suit property when the defendant purportedly put his locks at the gate of the suit property.
3 PW3/Sh. Budh Prakash Gautam, He proved the sale deed dated
LDC, Sub Registrar, Seelampur, 19.10.1995 registered vide
Delhi registration number 4497 in Book
No.-I, Volume 2744 pages 117 to
121 Ex.PW1/1.
4 PW4 Sh. Rishi Pal Sharma, This witness had investigated the
Retired Inspector from Delhi FIR bearing no. 262/09 u/s 448 Police. IPC PS Khajuri Khas and had filed the chargesheet in the said FIR. The said FIR was a result of a complaint made by the plaintiff qua the alleged trespass committed by the defendant at the suit property and this witness claimed that as per his verification, the articles lying in the suit property were of the plaintiff.
5 PW5 Inspector Pankaj Sharma. He submitted the status report As noted in the Ex.PW1/6 before the Hon'ble narration of facts, High Court of Delhi on plaintiff had filed a 14.09.2009. criminal writ petition before the Hon'ble High Court of Delhi bearing no.
1090/09 and police had filed a status report in the said petition which was RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 18 of 48 sought to be proved by the plaintiff by way of evidence of this witness.
6 PW6 Chaudhary Trilochan Singh. He supported the case of plaintiff This witness is the and relied upon his affidavit in son of Ram Kali evidence Ex.PW6/A. (original bhumidar) from whom plaintiff claims the his father Shekhar Chand Jain purchased the suit property. Inter alia, this witness was called by the plaintiff to confirm the fact that Ram Kali had sold the suit property to the father of the plaintiff and also to show that the plaintiff was in settled possession of the suit property.
7 PW7 Sh. Darpan Ahluwalia. He took photographs Ex.PW1/9 This witness was
to Ex.PW1/14. called by the
plaintiff to prove
certain photographs
which indicate that
plaintiff's articles
were lying in the
suit property.
8 PW8 Smt. Madhu Jain. She supported the case of She is the wife of
plaintiff and relied upon her the plaintiff.
affidavit in evidence Ex.PW8/A. 9 PW9 Sh. Dharam Singh. He supported the case of plaintiff This witness was and relied upon his affidavit in inter alia called to evidence Ex.PW9/A. show that some building material was supplied by this witness to the chowkidar of the suit property at the suit property.
RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 19 of 48
42.Plaintiff also relied upon various docuemnts in support of his case referred in para 7 of the judgment under challenge including the sale deed Ex.PW1/1 (document no. 1); Ex.PW1/4 (certified copy of order dated 06.11.2008 passed in CS (OS) no. 1620/2007 read with the Ex.C1 marked in the said suit); Ex.PW1/16 (status report filed before Hon'ble High Court of Delhi in criminal writ petition no.1090/2009).
43. It is pertinent to note that all the said witnesses were duly cross- examined by the counsel for defendant. It is again pertinent to note that despite opportunity defendant did not lead any evidence in his defence. It is further pertinent to note that after the right of the defendant to lead defence evidence was closed, a petition bearing no. CM (Main) No. 75/2021 was preferred by defendant before the Hon'ble High Court of Delhi but to no avail. The said order was then challenged before the Hon'ble Supreme Court of India. The SLP filed did not lead to any result. Thus, question of allowing the defendant to lead any defence evidence was put to rest.
44.Thereafter, in the present appeal, an application for leading additional evidence was moved by the appellant/defendant before this court which was also dismissed by this court vide order dated 14.03.2024. When the arguments were being heard in the matter, ld. Counsel for appellant/defendant had prayed that till he challenges the said order dated 14.03.2024 before the Hon'ble High Court of Delhi, matter should be deferred. The said prayer RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 20 of 48 was declined and thus, at the time of deciding this appeal, there is no evidence led by the defendant in this case.
45.Now, based on the plaintiff's evidence, Ld. Trial Court came to the conclusion that plaintiff has been able to show that he is the owner of the suit property. Ld. Trial Court also found that plaintiff was in possession of the suit property till defendant put his locks on the gate of the suit property. Based on the said findings, plaintiff was held to be entitled to decree inter alia directing the defendant to remove his locks from the suit property.
46.The decree is challenged on various grounds. But, the primary ground of challenge, in sum and substance, is that complex questions of title were involved in the suit in question and therefore, in the present suit of simplicitor injunction, the same could not have been decided by the Ld. Trial Court. It is also the contention of defendant that the chain of documents relied upon by the plaintiff does not confer any title. As per the defendant, as far as the GPA dated 21.12.1994 is concerned (based on which sale deed of 1998/document no. 3 Ex.D2 was executed by plaintiff in favour of his father), the same is a simple notarized document executed on a Rs.10/- stamp paper and therefore, the same could not have been used to execute any sale deed/document no. 3 by the plaintiff in favour of his father.
47.It is also the contention of defendant that once Ashok Kumar Jain has sold 1260 square yards of property to Satish Kumar Jain RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 21 of 48 (based on documents mentioned at serial no.2 of Table-1); who in turn sold the same to defendant (based on documents mentioned at serial no. 3 of Table-1), nothing remained with Ashok Kumar Jain and thus, he could not have appointed the plaintiff as his attorney vide Ex.D4 and thus, on the basis of Ex.D4 no sale deed Ex.D2/document no. 3 could be executed. In other words, the said chain of documents are in non-est in the eyes of law.
48.Further, still as per defendant, the terms of ratio of the judgment of Anathula Sudhakar (supra), complex questions of title could not have been gone into by the Ld. Trial Court and since the defendant has raised a cloud of suspicion on the title of the plaintiff, it was for the plaintiff to have filed a comprehensive suit for declaration with possession. As per defendant, Ld. Trial Court has granted possession to the plaintiff in the garb of injunction, which as per him, is impermissible in light of the aforesaid judgment.
49.On the other hand, counsel for the plaintiff argued that there is no infirmity in the judgment/decree of the Ld. Trial Court and defendant is intentionally trying to mislead the court by relying on chain of documents which do not pertain to his property. As per plaintiff, his title is clear based on document no. 1/sale deed of 1995/Ex.PW1/1 read with consent decree passed by the Hon'ble High Court/Ex.PW1/4 and thus, appeal deserves to be dismissed.
RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 22 of 48
50.Now, based on the arguments addressed before this court, following issues are for consideration of this court :
(i) Whether any cloud of suspicion was raised on the title of the plaintiff by the defendant ? If yes, was the Ld. Trial Court correct in deciding the title of the plaintiff in simpliciter suit for injunction. This is in light of the ratio of judgment of Anathula Sudhakar (supra).
(ii) Whether the plaintiff was able to show that there exists two separate properties with one measuring 2 bighas (qua which document no. 1/Ex.PW1/1 exists) and other measuring 1 bigha 6 biswas (qua which document no. 3/Ex.D2 exists) ? Or in the alternative, whether the chain of documents relied upon by the defendant are with respect to the same property as claimed by the plaintiff or are they with respect to a different property ?
51.Both the said points are inter-related and can be dealt with together.
52.Now, plaintiff in his evidence has categorically stated that his father purchased 2 bighas of land falling in Khasra no. 165/3 Min. Village Sabhapur, Delhi from one Ram Kali (through her attorney Sunil Jain) vide sale deed Ex.PW1/1 (document no. 1). He has filed original of the same before the Ld. Trial Court and its due registration was proved before the Ld. Trial Court by examining the concerned clerk PW3 Budh Prakash Gautam. Thus, as per evidence of plaintiff/PW1 read with PW3, a sale deed dated RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 23 of 48 19.10.1995 having registration no. 4497 in book 1 volume 2744 at page 117 to 121 was shown to have been duly executed and registered. As per said sale deed, father of the plaintiff Shekhar Chand Jain became the owner of the property measuring 2 bighas. The same was purchased by Shekhar Chand Jain from one Ram Kali through her attorney Sunil Jain.
53.It was vehemently argued by the ld. counsel for defendant that since the plaintiff has not produced or proved attorney given by Ram Kali in favour of Sunil Jain, the said sale deed/document no. 1/PW1 cannot given any right, title or interest to the father of the plaintiff.
54.I am not inclined to accept the said argument raised on behalf of defendant. This is because, once it is proved on record that a document is duly registered before the Sub-Registrar concerned, a presumption is raised about its due execution and registration. The said presumption cannot be rebutted only on bald assertion of the defendant. No evidence has been led by the defendant to rebut the said presumption. Thus, in law, it has been presumed that such a document was duly executed and registered.
55.Now, only because the concerned GPA in favour of Sunil Jain is not produced by the plaintiff, it shall not mean that the document itself was never executed. Even otherwise, plaintiff had produced the son of Ram Kali as PW6 Chaudhary Trilochan Singh who categorically stated in his affidavit in evidence Ex.PW6/A that the RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 24 of 48 said plot was purchased by Shekhar Chand Jain from his mother Ram Kali. The said witness was not cross-examined on the said point by the counsel for defendant and thus, non-production of GPA given Ram Kali to Sunil Jain (which form the basis of execution of sale deed Ex.PW1/1) shall not mean that the said sale deed does not confer any title in favour of the father of the plaintiff.
56.Now, plaintiff has proved on record the consent order Ex.PW1/4 dated 06.11.2008 passed by the Hon'ble High Court of Delhi in CS (OS) No. 1620/2007 read with Ex.C-1 (the said exhibit was given in the said suit i.e. 1620/2007). As per said order read with clause 5B (ii) of Ex.C-1, the property measuring 2 bigha which was purchased from Ram Kali through her attorney fell in the share of the plaintiff. The said fact is categorically stated by the plaintiff in his evidence also. There is no cross-examination of the plaintiff qua the said assertion of the plaintiff. Thus, it is shown on the record that by virtue of said settlement in CS (OS) no. 1620/2007, the suit property fell in the share of the plaintiff and he became the absolute owner of the same.
57.Now, the said contention of the plaintiff was objected to by the defendant on two counts. Firstly, it was argued that property being claimed by the plaintiff measuring 2 bigha is actually that of the defendant based on chain of documents described in Table- 1 above. But, as noted above, defendant did not led any of the said documents in evidence before this court. This contention of RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 25 of 48 the defendant that he is the owner of 2 bigha of land claimed by the plaintiff is unsupported by any evidence and thus, cannot be believed at all.
58. I may reiterate, even at the cost of repetition, that under Section 50 (1) of the Indian Registration Act, 1908, every document referred in the said Section, if duly registered shall take effect as regards the property comprised therein, against every unregistered document relating to the same property. Thus, once it is taken that the said sale deed qua 2 bighas of land is duly registered, the said sale deed shall take effect for the said land even against the unregistered chain of documents of the nature mentioned in Table-1 above. It means that even if it is accepted, only for the sake of arguments that the said chain referred in Table-1 and relied upon by the defendant (even though not led in evidence) pertains to the same property as the suit property, still the registered sale deed/document no. 1/Ex.PW1/1 shall take effect against the said chain and thus, it would mean that the plaintiff's father and after him, the plaintiff is the owner of the said land.
59. Secondly, defendant claims that since Ashok Kumar Jain had sold the property to Satish Kumar Jain in 1991; and thereafter in 1992 the said Satish Kumar Jain sold the property to defendant, the same Ashok Kumar Jain could not have appointed the plaintiff as attorney of 1260 square yards (1 bigha 6 biswas) and therefore, the said attorney Ex.D4 could not have been used by the plaintiff RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 26 of 48 to execute a sale deed/Ex.D2/document no. 3 in favour of his father in 1998.
60.Ex.D4 and Ex.D2 have been produced by the defendant himself and were admitted by the plaintiff during admission/denial of documents. The filing of the said document by defendant would show that defendant is aware of the existence of the said documents. Admittedly, defendant has not filed any suit till date, seeking that the said document be declared as null and void. During admission/denial of documents, counsel for plaintiff, on behalf of plaintiff, admitted the said document and in the replication, it was claimed that the title chain/Table-1 being relied upon by the defendant pertains to a different piece of land and that the said chain/documents are forged and fabricated by the defendant.
61.This fact is categorically stated by the plaintiff in his evidence wherein he asserts in para 12 of his affidavit in evidence that "the land deriving title from Chandru and Hari is about 4 to 5 plots away from the suit property, both falling in the same Khasra". He goes on to say that "averments regarding land measuring 2 bigha and 12 biswas is false and not related to subject matter i.e. suit property in said case. The documents filed by answering defendant do not pertain to the sought suit property and the documents dated 15/16.03.1992 are fabricated document".
RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 27 of 48
62.Now, the plaintiff was extensively cross-examined by the counsel for defendant on the aforesaid facts but nothing has come out from the cross-examination of the plaintiff to disbelieve the facts so stated by him. In other words, the claim of the plaintiff that the suit property measuring 2 bigha is different, distinct and separate from the property measuring 1 bigha 6 biswas (though both falling in same Khasra i.e. 615/3 Min.) has stood the test of cross- examination. In fact, in his cross-examination, plaintiff categorically submits that Ex.D4 (i.e. power of attorney relates to 1 bigha 6 biswas of land which is about 4 to 5 plots away from the suit property) and the same vested in his brother Viresh Chand Jain by virtue of the settlement which took place between the parties before the Hon'ble High Court of Delhi (see cross- examination dated 26.07.2011). This is the same settlement which took place vide Ex.PW1/4 in CS No. 1620/2007 between the plaintiff and the other LRs of Shekhar Chand Jain (father of plaintiff and the other LRs). Plaintiff categorically claims in his cross-examination that the suit land is different from the land measuring 1 bigh 6 biswas. I may reiterate that no evidence to rebut the said claim of the plaintiff made in his examination-in- chief or reiterated by him in his cross-examination was led by the defendant despite opportunity.
63.Thus, on a holistic reading of plaintiff's evidence read with his cross-examination would show that the suit property claimed by the plaintiff is different from the one being claimed by the RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 28 of 48 defendant. The defendant is somehow trying to mislead and confuse the court by claiming that his property is the same which is being claimed by the plaintiff.
64.From the evidence of the plaintiff read with his cross-examination dated 26.07.2011 along with consent order/decree Ex.PW1/4 [at para 5(B) (ii) read with 5(E) (ii) of Ex.C1 with the said exhibit being an exhibit in suit no. 1620/2007] would show that while the suit property measuring 2 bighas fell in the share of the plaintiff, a separate piece of land measuring 1 bigha 6 biswas fell in the share of his brother Viresh Chand Jain. As per the aforesaid documents, the land measuring 1 bigha 6 biswas falling in Khasra no. 615/3, Khata no. 87 in village Sabhapur, Shahdara, Delhi vide sale deed no. 1516 dated 03.08.1998 (i.e. document no.2) was purchased from Ashok Kumar Jain through attorney Satish Chand Jain/plaintiff by Shekhar Chand Jain vide the said sale deed. The same land appears to have eventually come to the share of Viresh Chand Jain. Ex.PW1/4 would show that the said sale deed finds mention at para 5E (ii). The said para records the exact sale deed number i.e. 1516 dated 03.08.1998 with respect of land measuring 1 bigha 6 biswas with the same being purchased from Ashok Kumar Jain through his attorney Subhash Chand Jain. This shows that there is substance in the plea taken by the plaintiff that his land is different and distinct from the land being claimed by the defendant. I may note that no question in this regard was put to RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 29 of 48 the plaintiff during his cross-examination by the counsel for the defendant.
65.It is pertinent to note that it is qua the same sale deed and area qua which the defendant repeatedly speaks of in his written statement read with the documents Ex.D2 and Ex.D4. Now, as per the defendant Ex.D2 and Ex.D4 could never have come into being as the same land was purchased by him from Ashok Kumar Jain in terms of documents described in Table-1 above. I shall just come to the said contention a little later. But, if I consider, the settlement deed forming part of Ex.PW1/4, the same land has fallen in the share of Viresh Chand Jain and not plaintiff. Thus, the plaintiff's case that his land measuring 2 bigha is different from the land claimed by the defendant is duly proved from the evidence led before the Ld. Trial Court.
66.The defendant is somehow trying to confuse the issue because two different pieces of land came in favour of Shekhar Chand Jain and one of them went to his one son namely Subhash Chand Jain/plaintiff herein (which is suit property) and the other went to Viresh Chand Jain. The title chain relied upon by the defendant (though not led in evidence) starts from one Hari and Chandru, sons of Gokal. The sale deed by the said Hari/Chandru in favour of Ashok Kumar Jain/document no. 2 Ex.D2 is for 2 bigha and 12 biswas of land. But, the chain relied upon by the plaintiff startes from one Ram Kali qua 2 bighas of land. Thus, this chain of the defendant which starts from Hari/Chandru is different from that of RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 30 of 48 the plaintiff who claims his title through Ram Kali. Thus, even if the defendant's case is taken on its face value, his title chain starts from Hari and Chandru and not from Ram Kali. The land qua which Hari/Chandru pertains to the extent of 1 bigha 6 biswas has, as per Ex.PW1/4, gone in the share of Viresh Chand Jain now.
67.Now, if it is taken that the property of the plaintiff/suit property is different and distinct from that of the defendant, there can be no question of the defendant raising any cloud on the title of the plaintiff. As noted above, plaintiff has a registered sale deed which supports his title. Defendant did not lead any evidence qua his chain at all. Even if, for the sake of arguments, I look at his chain, it is an unregistered chain of documents which cannot confer any title to him and even otherwise, it pertains to land which is not the suit property. The same, at best, is qua a land which fell in the share of brother of the plaintiff namely Viresh Chand Jain. Now, if that be the case, the said chain/Table-1 cannot raise any cloud on the clear title of the plaintiff. Thus, cloud, if any, raised on the title of Viresh Chand Jain is for Viresh Chand Jain and defendant to settle and it shall not lie in the mouth of the defendant to argue that by merely confusing the issue, plaintiff should have been relegated to a suit for declaration of title.
68.In my humble opinion, by no stretch of imagination can be said that the title chain/Table-1 relied upon by the defendant raise any RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 31 of 48 dispute qua the right, title or interest over the property of the plaintiff. There is stark difference in the area claimed by the plaintiff and the defendant. The plaintiff's property measures 2 bigha, while defendant claims ownership of 1260 square yards land. This again shows that the two properties are different.
69.At this stage, I may note a very interesting feature qua the documents relied upon by the defendant. I may say here that I have noted the said feature qua the documents of the defendant in order to satisfy the judicial conscience of this court. I am aware that the said documents/Table-1 have not been led in evidence and therefore, the said documents are not admissible in evidence. I have only seen the said documents to show that how the defendant is trying to confuse the court and is trying somehow create a false cloud of suspicion on the plaintiff's title.
70.As per the sale deed referred at serial no. 1 of Table-1 Ex.D1, Chandru and Hari had sold 2 bigha 12 biswas of land out of Khasra no. 615/3 Min. from the revenue estate of village Sabhapur, Shahdara, Delhi. This was on 30.10.1986. This sale was in favour of Ashok Kumar Jain. Thereafter, the said Ashok Kumar Jain gave 1260 square yards (i.e. about 1 bigha 6 biswas) to Satish Kumar Jain on 19.07.1991. In this regard, a set of documents referred at serial no. 2 of Table-1 were executed. Thereafter, as per defendant, he purchased the said land vide set of documents referred at serial no. 3 of Table-1 above.
RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 32 of 48
71.Now, in the bayana agreement forming part of set of documents referred at serial no. 3 of Table-1, the area being purchased by the defendant is stated to be 1260 square yards but he claims that he is taking possession of much larger area of 2139 square yards. It is surprising that an excess area of about 900 square yards (which is much larger than what was sold by Ashok Kumar Jain to S.K. Jain vide documents at serial no. 2 of Table-1) could be taken possession of by the defendant without any document in that regard. It is very surprising that when only 1260 square yards of land was sold by Ashok Kumar Jain, the said land would increase by about 900 square yards to 2139 square yards without any objection by any person and the same shall come in possession of the defendant.
72.The set of documents of the defendant also contains a site plan which also shows an area much larger than one reflected from his documents. Now as per the defendant's own case, he is owner of only 1260 square yards of land. Now, if he is the owner of only 1260 square yards of land, how can he claim title and possession of an area much larger to 1260 square yards i.e. 2139 square yards. No explanation or pleadings or evidence is on record on that count. This by itself, raises serious doubt about the case of the defendant and casts a shadow of doubt on his chain of documents.
73.Even otherwise, even if the defendant is taken to have got some papers executed in his favour in the manner relied by him, none of RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 33 of 48 the documents referred at serial no. 2 or 3 of Table-1 above can, in law, give any right, title or interest in his favour. This is because admittedly the said documents are not sale deeds/conveyance deeds but are simply GPA etc which per se cannot make him the owner of the suit property.
74. In this regard, I may rely upon a judgment passed by the Hon'ble High Court of Delhi in the matter i.e. Suraj Lamp & Industries (P) Ld.Tr.Dir vs State Of Haryana & Anr. SLP (C) No. 13917 of 2009 SC decided on 11.10.2011 wherein, while dealing with such chain of documents as relied by defendant, it has been held that -
"15. Therefore, a SA/GPA/WILL transaction does not convey any title nor create any interest in an immovable property. The observations by the Delhi High Court, in Asha M. Jain v. Canara Bank - 94 (2001) DLT 841, that the "concept of power of attorney sales have been recognized as a mode of transaction" when dealing with transactions by way of SA/GPA/WILL are unwarranted and not justified, unintendedly misleading the general public into thinking that SA/GPA/WILL transactions are some kind of a recognized or accepted mode of transfer and that it can be a valid substitute for a sale deed. Such decisions to the extent they recognize or accept SA/GPA/WILL transactions as concluded transfers, as contrasted from an agreement to transfer, are not good law.
16. We therefore reiterate that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance.
RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 34 of 48 Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property.
They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales."
75.A bare perusal of the aforesaid judgment shows that the documents relied upon by the defendant, even if they were led in evidence, could not have granted any right, title or interest to the defendant. I may note that much stress was made before this court that the various courts have committed an error in not allowing the defendant to lead his evidence. It may be recalled that the Ld. Trial Court, after much opportunity, had closed the right of evidence of the defendant and the said order was upheld uptil the Hon'ble Supreme Court of India. A subsequent review filed before the Hon'ble High Court of Delhi also did not come in favour of the defendant. Application for additional evidence, RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 35 of 48 before this court was also dismissed. But, in my humble opinion, even if the defendant would have come in the witness box to lead the said title chain/Table-1 in evidence and the said documents could be read in evidence, still as things stand, it would not have led to any different result. The title chain of the defendant per se does not confer any right, title or interest in his favour and thus, would not have helped his case at all.
76.Even otherwise, from the evidence of the plaintiff, it has been shown that the property being claimed by the defendant is different from that of the plaintiff. Thus, once it is taken that the property claimed by the defendant is different from that of the plaintiff and it is found that the plaintiff has been able to show that he has registered sale deed in favour of his father and decree in his favour, it becomes crystal clear that the plaintiff is the owner of the suit property and no cloud over his title can be raised by the defendant on the strength of his documents. As noted above, the said documents have not been read in evidence. If they were so read, they could still not give any right, title or interest to the defendant. Even otherwise, said documents pertains to a piece of land which fell in share of the brother of the plaintiff and is a separate piece of land than that of the plaintiff.
77.Even though the said evidence is borne out from the record, Ld. Trial Court did not venture to examine the case from the said angle. Be that as it may, it is the duty of the Appellate Court to re- examine the entire evidence on record and thus, once this court RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 36 of 48 has examined the evidence in the aforesaid light, it is crystal clear that the property of the plaintiff is different from the one being claimed by the defendant.
78. Once it is so held, the contention of the counsel for defendant that a simpliciter suit for injunction could not have been filed in the facts of the case is misplaced. The judgment of Anathula Sudhakar vs P. Buchi Reddy (Dead) By LRs & Ors. lays as follows :
"11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 37 of 48
12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raises a serious dispute or cloud over plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
13. In a suit for permanent injunction to restrain the defendant from interfering with plaintiff's possession, the plaintiff will have to establish that as on the date of the suit he was in lawful possession of the suit property and defendant tried to interfere or disturb such lawful possession. Where the property is a building or building with appurtenant land, there may not be much difficulty in establishing possession. The plaintiff may prove physical or lawful possession, either of himself or by him through his family RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 38 of 48 members or agents or lessees/licensees. Even in respect of a land without structures, as for example an agricultural land, possession may be established with reference to the actual use and cultivation. The question of title is not in issue in such a suit, though it may arise incidentally or collaterally.
14. But what if the property is a vacant site, which is not physically possessed, used or enjoyed? In such cases the principle is that possession follows title. If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. The proper course is to relegate the plaintiff to the remedy of a full-fledged suit for declaration and consequential reliefs.
17. To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 39 of 48 threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)].
Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction.
But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 40 of 48 title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
(Emphasis is mine )
79.Plaintiff in this case has a clear title. His possession, as per evidence, has been rightly found to be de facto as well as de jure by the Ld. Trial Court. There is no infirmity in the said findings. In my opinion, plaintiff has been successful in showing that he is the owner of the suit property and had the settled de facto and de jure peaceful possession of the suit property. Now once, the same is taken as correct, the ratio of the aforesaid judgment would entitle him to seek the reliefs sought from the Ld. Trial Court by way of a suit of injunction. In the said judgment, the Hon'ble Supreme Court of India has held that in cases where the peaceful possession of the plaintiff is interfered with, such possession can be protected by a suit for injunction simpliciter. It is further held therein that the person has a right to protect his possession against any person who does not prove better title by seeking prohibitory injunction. It is further held that a declaration qua title would be necessary only if a cloud on the title of the property of the plaintiff is raised. A cloud is said to be raised on the title of the property when there is apparent defect in the title or some prima facie right of a third party over it is made out or shown in the said case.
80.Plaintiff's case is supported by duly proved title documents. It has come from the evidence of the plaintiff that the plaintiff's RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 41 of 48 property is different than the one being claimed by the defendant (based on his own documents). Thus, there is no question of any apparent suspicion being raised on the title of the plaintiff which could have prevented the Ld. Trial Court from deciding the suit in question. In this case, there is no apparent defect in the title of the plaintiff. The defendant has failed to lead any evidence to show that the title of the plaintiff is defective in any manner. The confusion created by the defendant is based on clever drafting done in the written statement filed on his behalf.
81.Thus, reliance placed by the counsel for defendant on the aforesaid judgment of Anathulay Sudhakar (supra) goes against his case. The said judgment in fact shows that the plaintiff had rightly sued the defendant in this case for a decree of mandatory injunction, inter alia, seeking removal of the locks of the defendant.
82.I may note that plaintiff not only premised his suit on the basis of his title, he categorically stated in his pleadings as well as evidence that he was in possession of the suit property. This was not merely de jure possession of the plaintiff, it was also the de facto possession. The de jure possession was based on evidence of PW-1 read with PW-4 (along with document no. 1/Ex.PW1/1 read with Ex.PW1/4); the de facto possession was based on the articles of the plaintiff stated to have been lying in the suit property. The plaintiff has specifically claimed in his evidence that he was doing some business from the suit property and various articles RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 42 of 48 stated in the evidence were lying in the suit property. His said contention was also supported by the evidence of PW2/his caretaker Ram Samajh (who worked for the plaintiff as a watchman) who categorically stated that property in question was in possession of the plaintiff along with goods lying there; PW4 Rishi Pal Sharma who was the Inspector Investigation of PS Khajuri Khas where FIR no. 262 dated 08.09.2009 u/s 448 IPC qua trespassing committed by the defendant (Witness/PW4 had charge-sheeted the defendant in FIR no. 262 dated 08.09.2009 u/s 448 IPC and in the investigation had concluded that the articles lying in the suit property were of the plaintiff); PW5 who filed the status report before the Hon'ble High Court of Delhi as per which the plaintiff was "in active possession of the land in question and his goods were also lying there"; PW6 Trilochan Singh and PW9 Dharam Singh, who again supported the plaintiff's case qua settled physical possession.
83. Thus, there is overwhelming evidence on record to show that the plaintiff even had de facto possession of the suit property before the defendant put his locks at the gate of the suit property. Nothing has come out from the cross-examination of any of the said witnesses to disbelieve their testimony. The Ld. Trial Court after extensively examined the evidence of each of the said witnesses have rightly held in para 13, 14, 15, 16 and 17 of the judgment under challenge that the plaintiff was in possession of RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 43 of 48 the suit property. In other words, plaintiff was able to show de facto possession on the suit property.
84.Now, even if for the sake of arguments, it is taken that the question of title cannot be decided in the present suit for injunction, still question of possession can effectively be dealt in a suit for injunction. Now, once it is shown from the evidence that the plaintiff is in de facto possession of the suit property and the same was interfered with by the defendant by putting his locks at the gate of the suit property, the same could have been decided by the Ld. Trial Court which it rightly did. Thus, the entire basis of the present appeal is based on wrong reading of facts and law. The judgment relied upon by the defendant does not help his case at all.
85.Though, Ld. Trial Court while deciding the Issue no. 2 of the suit held that the plaintiff was dispossessed from the suit property, in my opinion, it was not a case of dispossession. Plaintiff asserts that he was in de facto possession of the property in question and his goods were still lying therein. This contention was rightly accepted by the Ld. Trial Court. Now, once the said contention of the plaintiff is accepted, it means that when the defendant put his locks on the suit property, he essentially prevented the plaintiff from entering or leaving property at his will. In other words, by the said act of the defendant, the ingress/egress of the plaintiff was obstructed by the defendant. When the goods of the plaintiff are still lying in the property, it cannot be said that the plaintiff RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 44 of 48 was actually dispossessed from the suit property. In my humble opinion, the putting of locks by the defendant simply shows that there was only interference, at best, in the possession of the plaintiff committed by the defendant. In my humble opinion, even if the question of title, for the sake of arguments, could not have been decided by the Ld. Trial Court, still considering the ratio of Anathula Sudhakar (supra) cited above, this was a case where plaintiff's possession has been interfered with by the defendant and this issue could be challenged in a suit of simpliciter injunction at the instance of the plaintiff. Thus, the contention of the defendant that the Ld. Trial Court wrongly noted the question of title becomes superfluous. Even otherwise, I have already concluded that the defendant was not able to show any title to the property or raise any cloud on plaintiff's title.
86.Thus, the two issues which arose from the present appeal are answered as under :
(i) No cloud of suspicion was raised on the title of the plaintiff by the defendant and therefore, the Ld. Trial Court has rightly decided the suit in question. Even otherwise, the issue of title could have been decided in this case as no complicated question of title of the suit property arose for consideration before the Ld. Trial Court. The Ld. Trial Court was right in holding that the plaintiff is the owner of the suit property and there was no right, title or interest of the defendant in the said suit property.
RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 45 of 48
(ii) Plaintiff was able to show that there were two separate properties i.e. one measuring 2 bighas/suit properti (qua which document no. 1/Ex.PW1/1) exists and the other measuring 1 bigha 6 biswas (which fell in the share of his brother Viresh Chand Jain qua which Ex.D2 read with entry at para 5 (E) (ii) of Ex.PW1/4 has to be read). The defendant's chain of documents/Table-1 do not give any right, title or interest to him and even otherwise appear to be qua a different property and not qua the suit property.
87.Now, once, the aforesaid contentions are decided, nothing survives in the matter. I have already held that this is the case where the plaintiff's possession was illegally interfered with and both de facto and de jure possession in the suit property is of the plaintiff.
88.Before parting with the judgment, I may take note of two oral arguments raised on behalf of the defendant during hearing. First, it was argued that plaintiff has not paid proper court fees and Ld. Trial court has given possession in garb of injunction. In view of the findings returned in this judgment, the present suit for injunction was maintainable before this court and therefore, neither the valuation nor the court fees paid in the suit is improper. Again, the contention of possession being given, in the garb of injunction, pales into superficiality as it has been found that plaintiff was in settled possession of the suit property.
RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 46 of 48
89.Second contention was that plaintiff could not become owner of the suit property as excess land (much more than owned) was sold by Ram Kali to various people, including plaintiff's father. The said contention is de hors of pleadings and evidence. Some documents were sought to be read before this court for the first time. The same cannot be allowed. Any argument which is de hors of pleadings and evidence cannot be entertained at the appeal stage.
90.Thus, the aforesaid two arguments of the defendant are rejected.
91.In view of the above, all the contentions of the defendant qua judgment under appeal are rejected. Accordingly, appeal fails. The findings of the Ld. Trial Court, save and except, to the extent modified by the findings returned by this court are affirmed. Accordingly, the reliefs granted by the Ld. Trial Court are affirmed in toto. Appeal is dismissed with costs. Let decree sheet be prepared accordingly.
92.During the course of arguments and also from the record, it appears that defendant had deposited the keys of the locks (with which the suit property was locked by him with the Ld. Registrar General of Hon'ble High Court of Delhi when the suit was being tried there). The said keys are available with the Ld. Trial Court record. Since appeal has been dismissed, the plaintiff is at liberty to move an appropriate application before the Ld. Trial Court for release of the said keys so that the obstruction caused in the RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 47 of 48 ingress/egress of the plaintiff qua the suit property could be removed by him, if he so desires. Digitally signed AASHISH by AASHISH GUPTA GUPTA Date: 2024.07.12 05:11:28 +0530 Announced in the Aashish Gupta open Court on 12.07.2024 District Judge-01, North-East District, Karkardooma Courts, Delhi RCA DJ No. 32/21 Shiv Tyagi vs. Subhash Chand Jain & Others 48 of 48