Delhi District Court
Madhukar Sharma vs Kishore Lal on 21 December, 2023
IN THE COURT OF MS. UPASANA SATIJA
ACMM (WEST)
TIS HAZARI COURTS, DELHI
(THE THEN JSCC/ASCJ/GJ (CENTRAL) TIS HAZARI
COURTS, DELHI)
____________________________________________________
CS SCJ 12356/2014
CNR No. DLCT03-000075-1984
1. Madhukar Sharma,
Son of Late Shri Prem Raj,
Resident of House No. 389.
Village Masjid Moth, New Delhi.
2. Surjit Singh,
Son of Shri Gopi Chand,
Resident of House No. 291,
Village Jor Bagh,
Kotla Mubarakpur, New Delhi. ..... Plaintiffs
Versus
1. Shri Kishore Lal (deceased)
Through his Legal Heirs.
a) Smt. Kripalo,
Wife of Late Shri Kishori Lal
b) Shri Braham Singh (deceased)
Represented through his LRs
i) Smt. Basanti Devi (Widow)
ii) Sushila (Daughter)
(Minor children of
Late Shri Braham Singh
Son of late Shri Kishori Lal)
iii) Ravi Kumar (Son)
_________________________________________________________________________
CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 1 of 30
iv) Sonu (Son)
All R/o 181/1-2. Aliganj,
Kotla Mubarakpur, New Delhi
c) Smt. Dhupo,
Wife of Shri Mohinder Singh,
Daughter of Shri Kishori Lal.
Resident of Village Kanawani (UP)
District Ghaziabad.
d) Shri Prem Singh (Deceased)
Son of Shri Kishori Lal
Represented through his LRs.
i) Subhash Chand (Son)
ii) Anil Kumar (Son)
iii) Rajinder Singh (Son) (deceased)
Through LRs.
a. Smt. Basanti Devi (mother)
b. Smt. Sunita (widow)
c. Ms. Meenakshi (daughter)
(substituted vide order dated 03.12.2018)
iv) Suresh (Son)
v) Lajwanti (Daughter)
All residents of 181. Aliganj,
Kotla Mubarak Pur, New Delhi.
.......Defendants
Date of Institution : 23.02.1984
Date of Reserving the Judgment : 07.12.2023
Date of Decision : 21.12.2023
Decision : Suit Dismissed
_________________________________________________________________________
CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 2 of 30
Vide Transfer Order No. 49/DHC/Gaz./G-7/VI.E2(a)/2023
dated 14.12.2023 at Serial No. 28, the undersigned was
transferred from JSCC-ASCJ-GJ, Central THC to ACMM,
West, THC Delhi. Since arguments in the present case were
heard by the undersigned as JSCC-ASCJ-GJ, Central THC, in
view of para no. 2 of the aforesaid transfer order, the Judgment
is now being pronounced in the present Court.
Suit for Possession & Recovery of Mesne Profits/Damages
JUDGMENT
1. Present suit for Possession & Recovery of Mesne Profits/Damages was filed by Madhukar Sharma (hereinafter referred to as 'plaintiff no. 1') through his general attorney Sh. Prem Raj against Kishore Lal (since deceased) (hereinafter referred to as 'defendant') in respect of plot No. 1 bearing Kasra No. 36/2 measuring 220 Sq. Yards situated in Bapu Park, Kotla, Mubarakpur, New Delhi, shown as ABCD in the site plan filed with the plaint (hereinafter referred to as 'suit property'). During the course of proceedings, vide order dated 01.05.1993, Sh. Surjit Singh (hereinafter referred to as 'plaintiff no. 2') was impleaded as a plaintiff as he claimed that during the pendency of the suit, he had purchased the suit property.
PLEADINGS Brief Facts pleaded in the plaint 2.1. M/s Leela Ram & Sons, a partnership firm, carrying on business at 4/5-B, Asaf Ali Road, New Delhi was the owner and in possession of plot No. 1 measuring 220 Sq. Yards situated in Bapu Park, Kotla, Mubarakpur, New Delhi. By means of sale _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 3 of 30 deed dated 17.4.81 duly registered as document No. 1868 Book No. I, Vol. No.4460 at pages 171 to 175 in the office of the Sub Registrar, New Delhi on 20.04.81, M/s. Leela Ram & Sons sold the said plot to the plaintiff no. 1 and delivered possession of the same to him. After the purchase, the plaintiff no. 1 has become the absolute owner of the plot No.1 measuring 220 Sq. Yards situated in Bapu Park, Kotla Mubarakpur, New Delhi. The said plot no. 1 bears Khasra No.36/2 and is bounded as under:
East : Plot No.183 forming part of Khasra No.28/22, belonging to M/s. Kotla (P) Ltd.
West : Road.
North : 30 ft wide road.
South : Service lane.
2.2 The defendant in the second week of February 1983 illegally and forcibly encroached upon the said plot and constructed two bhattis, one jhoppri, one chhappar and walls in the plot in dispute. The defendant has got no right, title and interest whatsoever in the plot in dispute and his possession over the same is unauthorised and is in the capacity of a rank trespasser. The defendant is liable to hand over the vacant & peaceful possession of the said plot after the demolition of the construction and removal of malba from there and also liable to pay mesne profit/damages to the plaintiff for illegal use and occupation of the said plot. The said plot can easily be let out at a monthly rent of Rs.100/- and, therefore, the plaintiff is entitled to recover a sum of Rs.1,200/- as mesne profits/damages from the defendant for unauthorised use and occupation of the plot since the date of his illegal occupation. The plaintiff is however suing _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 4 of 30 for Rs.1000/- and gives up the claim for the balance amount.
2.3. The plaintiff requested the defendant several times, to hand over the peaceful possession of the plot and to pay mesne profits/damages but the defendant did not pay any heed, hence, the plaintiff has filed the present suit against the defendants praying for following reliefs:
a) Decree for possession of the plot bearing Plot No.1 shown by the words A B C D in the plan filed with the plaint and situated in Bapu Park, Kotla Mubarakpur, New Delhi after the demolition of the construction existing thereon and removal of malba from there, be passed in favour of the plaintiff and against the defendant.
b) Decree for Rs.1,000/- as mesne profits/damages for unauthorized use and occupation of the plot in dispute be passed in favour of the plaintiff and against the defendant.
c) Future mesne profits/damages @ 100/- per month be allowed from the date of the filing of the suit till the delivery of possession of the plot in dispute.
Brief Facts pleaded in the Written Statement filed by Defendant 3.1. Defendant denied that Lila Ram and sons is a partnership firm or was the owner or in possession of plot styled as no.1 in Bapu Park, Kotla Mubarakpur or the size of the suit _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 5 of 30 plot was 220 sq.yards. It may be mentioned that Ali ganj and Kotla Mubarakpur are two separate villages.
3.2. The defendant is in possession over the suit plot for over 40 years and is carrying on dairy business. The defendant is in possession of the suit plot as an owner by virtue of adverse possession for over 40 years, which possession was open, notorious and hostile. There are 4 jhonpries and one chappar and the plot is bounded by boundary wall. The plaintiff never claimed himself to be the owner of the suit plot and demanded its possession from the defendant and he is not the owner of the suit plot. The defendant is in occupation of suit property as an owner along with his brother in his own right and the possession of defendant is perfectly legal.
3.3. The suit is false and frivolous to the knowledge of the plaintiff and be dismissed with costs under section 35-A, C.P.C. It is well within the knowledge of the plaintiff that he is not the owner of any plot in the area. He is simply exerting undue pressure on the poor persons of the locality, who are in possession of the various plots and then he is trying to grab whatever money he can from such persons.
4. Replication to WS of defendant was filed by the plaintiff.
ISSUES
5. On the basis of pleadings, the following issues were framed:
_________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 6 of 30
1. Whether the plaintiffs are the owner of the suit property? OPP
2. Whether the defendant has become the owner of the suit property by adverse possession? OPD
3. Whether the suit has been properly valued for the purpose of court fees and jurisdiction?
4. Whether the plaintiff is entitled to the relief claimed?
5. Relief.
EVIDENCE Plaintiffs' Evidence
6. In support of their case, the plaintiffs examined five witnesses.
6.1. Plaintiff no. 2 Sh. Surjeet Singh was examined as PW-1. PW1 testified that he had purchased the disputed plot from Sh. Madhukar Sharma the plaintiff no. 1 in the year 1989. The plot in dispute is comprised in khasra no. 36/22, plot no. 1, situated in Triloki colony, Kotla Mubarakpur, New Delhi. He further stated that the plot is bounded by on Eastern side the plot no. 183. On the western side there is a road on the southern side there is a gali and on the north side also have a road. The disputed plot has been shown in red colour in the site plan. The plot which was purchased by him was having Jhopri and pattis therein. The plot in dispute is about 220sq.yard. He didn't remember the cost price of the plot. The plot in dispute had been purchased on the basis of the document viz. registered Power of Attorney, Agreement of sale. Affidavit, Payment of receipt and Will. The agreement to sell bears his signature as well as the _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 7 of 30 signature of the seller at points A,B,C,D,E & F respectively on each page of the agreement and the said agreement was Ex. P.W.- 1/1. The general power of attorney executed by Madhukar Sharma which has been duly registered before the Sub-registrar and the same bears the signature of Madhukar Sharma on each page of the said power of attorney at points A, B & C respectively. The receipt which has been executed by Madhukar Sharma which bears the signature at point 'A'. The Affidavit of the Madhukar Sharma which bears the signature at points 'A & B' and was mark X, Y & Z. At the relevant time of purchasing plot he knew that a suit with respect to the disputed plot is pending and the said plot was purchased by him on the basis of symbolic possession. He further stated that the plot in dispute has been encroached by the defendant now being represented by the legal heirs of the defendant in the year 1983. The plot in dispute was having chappar/jhopri therein at the relevant time. The defendant now represented by legal heirs has no right in the disputed plot as the same has been purchased by him from the owner of the plot Sh. Madhukar Sharma. The plot in dispute could be easily let out at the relevant time not less than Rs. 4,000/- or Rs. 5,000/- per month. He had requested the defendant Sh. Kishori Lal at the relevant time for the removal of the encroachment from the disputed plot as the talk for such thing was going on. In the meantime Sh. Kishori Lal died and the talk remained as it was. No further talk was held with the legal heirs of Kishori Lal as they were not going to part away the disputed plot to him. The plot in dispute be given to him as they have illegally encroached upon the said plot and the mesne profit as stated hereinabove be also given to him by decreeing to him and his suit is correct. _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 8 of 30 PW-1 was duly cross-examined by Ld. counsel for the defendant. During his cross-examination he stated that no sale deed has been executed so far in respect of the plot in dispute. He had seen the land of the colony. He did not know the number of the plots in the said colony but his plot was there before purchasing the said plot. He was asked that whether he knew the colony is approved or unapproved. He replied that he does not know. He was again asked that could he tell the Khasra no. of plot no. 183. He answered that the khasra no. of his plot is 36/22 however, he could not tell the khasra no. of 183. He could not tell the no. of plot which was situated at the eastern side of plot no. 183. He admitted that there was a road at the western side of his plot however he could not tell the number of plot which is beyond that road. Similarly he could not tell the number of plots situated on the southern and northern side. In the revenue record the entry to that effect being the owner might be recorded of the previous owner but entry with respect to his name has not been entered in the revenue record. The value of the plot was may be around 10-12lakhs. He did not know what the value of the plot was at the time of filing the present suit. He denied that the possession of defendant is more than 50 years. He voluntarily said that the encroachment was made by the defendant in the year 1983. He did not know whether any complaint with respect to the encroachment in the police station. He further denied that the plot in dispute is situated in khasra no. 503/31 in Kotla Mubarakpur. He voluntarily said that his plot in dispute is in khasra no. 36/22.
6.2. Sh. Om Prakash Sahdev was examined as PW-
2 who testified that he had seen the disputed plot in the year 1983 _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 9 of 30 as he had been the permanent resident of that particular area he used to see the disputed plot every now and then. He knew the defendant Sh. Kishori Lal (deceased) as well as the plaintiff no. 2 and also the person who has sold this property to Sh. Surjeet Singh. The colony in which the disputed plot is situated had been carved out by Sh. Pandit Leelaram in the year 1982 and thereafter the owner of the plot started selling the plot after making the plot. The adjacent plot was occupied by Sh. Kishori Lal who was having chappar therein. The plot in dispute has been purchased by plaintiff no. 2 Sh. Surjeet Singh in the year 1989. The disputed plot was under the consideration of instant suit and the same was purchased by Sh. Surjeet Singh as on their basis. Since the defendants had been in possession of the disputed plot prior to the purchase of the said plot by Sh. Surjeet Singh and he could not say whether the possession of the defendant is unauthorized in that respect. He admitted that the suit plot has been purchased by Surjeet Singh. The document in respect of the plot in dispute was seen by him at the relevant time.
PW-2 was duly cross-examined by ld. counsel for the defendant. He admitted that he had not seen the site plan of the colony as he was the old resident of the said area. He had not seen the sale deed. He further stated that he could not tell the exact direction of plot no.183 from the plot in dispute. He could not tell the exact time from which the defendant is in the possession of the disputed plot. He could tell the khasra no. of the plot in dispute however he had seen the record of the Patwari. He could not tell whether the defendant is in the possession of the plot in dispute since the year 1964.
_________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 10 of 30 6.3. Sh. Raj Narain was examined as PW-3 who stated that the disputed plot had been seen by him. He knows Sh. Surjeet Singh, plaintiff no. 2 only. The colony in which the disputed plot is situated has been carved out by Pandit Leelaram. The carving of the plot might have taken place in the year 1988-
89. The plot in dispute has been purchased by Surjeet Singh in the year 1989. At the time of purchasing the plot the disputed plot was having jhuggi and jhopri therein as well as chappar, however, he could not tell who is having the possession of the disputed plot.
PW-3 was duly cross-examined by ld. counsel for defendant. During his cross-examination, he stated that in the eastern side of the plot in dispute there is a plot bearing no. 183, on the western side there is a road. He further stated that there is open space beyond the said road, on the southern side there is a gali and beyond that he did not know. On the north side also there is a road and what is beyond the said road he did not know. A sale deed executed in favour of Surjeet Singh. He is not a summoned witness.
6.4. Sh. Om Singh was examined as PW-4 who stated that the site plan which is annexed with the plaint bas been drafted by him on the instruction of Pandit Prem Raj. The direction as per the dimension of the plot had been given by Sh. Prem Raj and accordingly he prepared the site plan which was Ex. P.W.-4/1 and was correct as per his instructions. The said site plan bears his signature at the bottom of Ex. PW-4/1.
PW-4 was duly cross-examined by Ld. Counsel for defendant. During his cross-examination, he stated that he had _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 11 of 30 not seen the site of disputed plot. At the time when he prepared the site plan Ex. P.W.-4/1, he had no licence of Architect. He had not made any measurement at site. The site plan was prepared as per instructions of the plaintiff Pandit Prem Raj at Tis Hazari. He had not visited the spot and did not measure the property before preparing the site plan. The title of the suit was written by him on site plan on asking of Prem Raj. Plot No. and Khasra No. were also mentioned in the site plan by him on asking of Pandit Prem Raj. He denied that he had not prepared the site plan as per spot.
6.5. Sh. Rajinder Singh, S.R.-III was examined as PW-5. He brought the summoned record i.e. the copy of the registered Sale Deed. He further stated that the aforesaid sale deed dated 17.04.81 in the name of Sh. Madhukar Sharma, was duly registered in their record bearing document no. 1868 on 20.04.81. The document was Ex P.W.-5/1. Every page bears the signature of Sh. Prem Raj at point A. PW-5 was duly cross-examined by Ld. Counsel for the defendant. During his cross-examination, he stated that the record is under the custody of Sh. Ramesh Kumar, Record Keeper, Sub-Registrar-III, Asaf Ali Road, New Delhi and the above said record is not under his custody. He had no personal knowledge about the abovesaid document. He could not say about the entry made in the said document because he was not posted at that time in the said office. He admitted that the document which he brought was not complete document and the last page of this document is torned halfly. However he could only say about the date 20.04.81 and not about the registered number of the document which is torned. He couldn't tell the _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 12 of 30 name of the witness in whose presence the document was executed since as per his record no name of witness was mentioned in his record.
7. No other witness was examined by the plaintiffs and vide statement dated 19.01.2004 of Ld. Counsel for plaintiffs, PE was closed and Ld. Counsel for the plaintiffs placed on record documents Ex. P-1 and P-2 i.e. copies of Jamabandi pertaining to the year 1948-49 Village Kotla Mubarakpur.
Defendant's Evidence
8. In support of their case, the LRs of defendant examined three witnesses.
8.1. Smt. Basanti Devi was examined as DW-1.
She tendered her evidence by way of affidavit as Ex.D-1 bearing her thumb impression at point A and B. DW-1 was cross-examined by Ld. Counsel for plaintiff. During her cross-examination, she stated that the plot in question for which the suit has been filed bear no. C-37, Babu Park. She did not know the Khasra no. in which this plot situates and in which village periphri this plot falls. The plot in question was measuring 220 sq. yds. She could not tell the exact length and breadth of the plot. Her elder son enquired about the plot in question from Revenue officials. No document has been filed on her behalf stating the enquiry from the Revenue department. Her son did not convey about the enquiries made by her from the concerned revenue officials. She denied that her son told her that the Patwari has told him that the property in question is in the name of Leela Ram & Sons and the same was sold by them to the _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 13 of 30 plaintiff and a mutation in this regard has been entered in the revenue record. She further denied that they encroached the plot in question in February 1983 and before February, 1983 plaintiff Madhukar Sharma had possession of the plot. No site plan of the plot in question had been filed on their behalf in the present suit. She could not understand the site plan if shown to her as she is illiterate. She did not now that the plot in question bears no. 1. She could not say that if the plot in question was rented out in February, 1983 can fetch Rs. 100/- per month as alleged. She did not know that any notice was served upon her father-in-law by plaintiff Madhukar Sharma before filing the suit. She could not say about the market value of the plot in question in February, 1983 and the market value of the plot in question in February, 1983 was Rs. 80,000/-. She did not know about the written statement filed in the present suit on behalf of her father-in-law. She did not know from whom her father-in-law purchased the plot in question. She could not say that any documents have been filed to show the possession and ownership of the plot in question filed in the present suit as previously her father-in-law was conducting the proceedings of the suit and after his death her husband was conducting the proceedings, they might have filed the documents. She denied that her father-in-law was not residing at the plot in question since 1944 and he encroached upon the plot in question in 1983 and for this reason no documents have been filed on their behalf. The affidavit filed in chief examination of her evidence was signed/affixed with thumb mark in the court premises. She further stated that the contents of affidavit are true. She could not tell how the site plan marked as Ex. P.W.-4/1 is wrong although it is written in her affidavit that the same is _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 14 of 30 incorrect. She could not tell the exact measurement of the plot in question although it is written in her affidavit as 33' X 60'. The property in question has 12 rooms. The house is single storey.
8.2. Sh. Inder Singh was examined as DW-2. He tendered his statement in chief by way of affidavit as Ex.D-2.
DW-2 was cross-examined by Ld. Counsel for plaintiff. During his cross-examination, he stated that he is not a summoned witness. The case file retained by the counsel for defendant has not been read by him. He had not seen any documents pertaining to the suit with the counsel for defendant. He denied that the plot in dispute bears no. 1 which is situated at Babu Park. The land in which the plot in question comprise pertains to the Village Kotla Mubarakpur. He did not know that the colony Babu Park was developed by Pandit Leela Ram and ownership rights of plot in question were in the name of Leela Ram & Sons. He also did not know that the plaintiff Madhukar Sharma purchased the plot from Leela Ram & Sons In February, 1983. He denied that the family of the defendant encroached the plot in question in February, 1983. According to him the owner of the plot in question was Sh. Kishori Lal. He did not see any document with Kishori Lal regarding the plot in question. Kishori Lal never discussed with him that he had purchased the plot in question from anybody. He had cordial relations with Kishori Lal being a resident of same village. Kishori Lal did not tell him about the filing of present suit against him. He never accompanied Kishori Lal and his family members for enquiring about the plot to the revenue officials. He voluntarily said that he saw Patwari at the residence of Kishori Lal one and half years _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 15 of 30 before. He could not tell the name of Patwari. The son of Kishori Lal told him that Patwari has come for demarcation when he was passing through the plot in question and he stopped there saw the demarcation proceedings. Patwari did not tell him about the khasra no. in which plot situates in his presence nor son of Kishori Lal told him about the Khasra number. I could not tell the khasra no, in which the plot in question situates and the khasra number in which his plot situates however, the land belongs to Kotla Mubarakpur. The plot in which he was residing was purchased by his father. He couldn't tell the mode of purchase. The consolidation proceedings never took place in the colony where the plot in question situates. The property is assessed for the purpose of house tax by the MCD. The houses situated in colony i.e. Babu Park have electricity connections and water connections as well as sever connections. The plot in question have water meter. He denied that the family members of Kishori Lal have no ownership/title rights in the plot in question. He voluntarily said that he had seen the family members of Kishori Lal residing in the property in question since his childhood.
8.3. Sh. Subhash Chander Verma was examined as DW-3. He tendered his affidavit which was Ex.D-3.
DW-3 was cross-examined by Ld. Counsel for plaintiff. During his cross-examination, he stated that he had filed a site plan with the written statement however, after going through the case file; he could not find any site plan filed alongwith written statement. He could not say that the suit plot is situated in the khasra no. 36/2 of Village Kotla Mubarakpur. He denied that the Bapu Park is also known as by name of Triloki _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 16 of 30 Colony. He did not know any person by name of Pandit Leela Ram and Pandit Prem Raj and he had not heard their names. He further denied that the Bapu Park Colony was developed by abovesaid two persons. He could not say that the plaintiff is son of Sh. Pandit Prem Raj and residing in Masjid Moth, Delhi. He also could not tell the distance between the Masjid Moth and Kotla Mubarakpur as he had not visited the Masjid Moth. He was not aware that any document showing the possession since 1944 in respect of suit plot is filed with the present suit or not. He did not know the contents of the written statement filed in the present suit by his grandfather. He further denied that they encroached upon the suit plot in the year 1983.
9. Vide statement dated 21.05.2004 of Ld. Counsel of LRs of defendant, DE was Closed.
10. Vide judgment dated 05.02.2005, the present suit was dismissed by the Ld. Predecessor. Issue 1, 3 and 4 were decided against the plaintiffs and issue 2 was decided against the defendant. The judgment passed by Ld. Predecessor was upheld by the Ld. First Appellate Court. Vide order dated 08.05.2014, Hon'ble Delhi High Court remanded back the matter to trial court. In the said order, Hon'ble Delhi High Court observed:
"6. A curious position emerges in this case for the reason that though defendants (i.e. legal representatives of the original defendant Kishori Lal) failed to prove that they were in adverse possession, the suit for possession and damages was yet dismissed because plaintiff could not properly prove his case. Once the defendant in a suit for possession fails to prove his title _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 17 of 30 to the suit land and also fails to prove adverse possession, ordinarily the suit for possession should be decreed. However, in the present case, there is an issue as to whether the suit property is located in K.No.36/2 as stated in the registered sale deed dated 17.4.1981 because plaintiff no.2 failed to lead evidence that the suit property is situated in K.No.36/2. The original jamabandi in Urdu has been proved by appellant/plaintiff no.2 as Ex.P-1 and Ex.P-2, however, there is no official translation and the trial court has simply relied upon the Hindi translation filed by the appellant-plaintiff no.2, and which translation has only created confusion because the translation seems not to contain reference to ownership of M/s Leela Ram and sons in K.No.36/2.
7. Therefore, on one hand the defendant has failed to prove his entitlement to continue with possession of the suit plot, plaintiff's suit for possession and damages has however been dismissed on account of lapses in not leading sufficient evidence.
8. However, in my opinion, there ought not to arise a position that no one is an owner of the suit plot. Consequently, the facts of the present case persuade me to exercise my suo moto powers under Order 41 Rule 27 CPC read with Section 165 of the Evidence Act, 1872. Both these provisions, dehors the aspect of any default committed by the parties of leading sufficient evidence, allows a court to bring evidence on record so as to do complete justice. In this case, complete justice is required to be done because once the defendant failed to prove the adverse possession, there has to be some definite ownership of the suit plot and if ownership of the suit plot was of M/s Leela Ram and Sons and thereafter of _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 18 of 30 plaintiff no.2, a suit for possession must reach its logical conclusion.
9. Finally I may add that the finding of the trial court that the set of documents dated 22.2.1989 being the agreement to sell, registered power of attorney, receipt, affidavit etc do not transfer rights in the suit plot to the plaintiff no.2/appellant is not a correct conclusion and is therefore set aside because the documents in question are prior to Act 48 of 2001 which amended Section 53A of the Transfer of Property Act. This aspect has been dealt with and clarified by me in the judgment in the case of Suresh Chand Vs. Ramesh Chand 2012 (188) DLT 538. Appellant-plaintiff no.2 will thus get rights in the suit plot by virtue of these documents dated 22.2.1989.
10. In view of the above, I remand the matter to the trial court and allow the appellant-plaintiff no.2 to lead evidence by calling the revenue officials for demarcation of the suit plot to determine whether or not the same falls in K.No.36/2 of Village Kotla Mubarakpur. I may note that there is some confusion that the suit property is situated in K.Nos. 36/2 or 36/22 inasmuch as plaintiff in his cross-examination stated that the suit property is situated in K.No. 36/22. Therefore, appellant-
plaintiff will also be allowed to lead additional evidence to clarify the position that the suit property of which possession is sought is the suit property forming part of K.No. 36/2 which is a subject matter of the sale deed dated 17.4.1981. Trial court will get official translation done of the Urdu documents Ex.P-1 and Ex.P-2 before arriving at any conclusion as to the ownership of M/s Leela Ram and sons and thereafter of plaintiff no.1-Mr. Madhukar Sharma and thereafter of plaintiff no.2/appellant in _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 19 of 30 the suit property.
11. In view of the above, this appeal is remanded to the trial court for leading of evidence by appellant-plaintiff as to ownership of the appellant-plaintiff no.2 of the suit plot and which originally belonged to M/s Leela Ram and sons. Appellant- plaintiff no.2 will also get demarcation done from the revenue authorities as to the location of the suit plot as to whether the same falls in K.No. 36/2. The trial court will also get official translation done of the Urdu documents Ex.P-1 and Ex.P-2 before arriving at findings of facts and conclusions. Nothing contained in the existing impugned judgment will in any manner affect findings and conclusions to be arrived at in the fresh judgment which has now to be rendered by the trial court after allowing appellant-plaintiff no.2 to lead evidence in terms of the present judgment."
11. Accordingly, the onus was on the plaintiff no. 2 to show that he is the owner of plot No. 1 bearing Kasra No. 36/2 measuring 220 Sq. Yards situated in Bapu Park, Kotla, Mubarakpur, New Delhi and that the plot shown as ABCD in the site plan filed with the plaint falls in K. No. 36/2.
12. Plaintiff no. 2 examined three witnesses after the matter was remanded by Hon'ble Delhi High Court:
12.1. Sh. Puran Chander Dhyani was examined as PWX1. He stated that he was appointed as Survey Consultant for carrying out the demarcation in respect of Khasra No. 36/2, Village Kotla Mubarakpur, New Delhi, and he conducted the demarcation process through Total Station Machine and DGPS _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 20 of 30 (Real Time Kinematic). He prepared the Demarcation Report dated 13.09.2019 with drawing, the same was Ex. PWX1/A bearing his signatures at point 'A' and drawing was Ex. PWX1/B bearing his signature at point 'B'. He stated that if we superimpose, as per Tatima of the colony, it is on plot No. 1 of Khasra No. 36/2, Kotla Mubarakpur, New Delhi. At that time, Kanoongo Mr. Ranbir Singh was present and he provided the Revenue Record regarding the aforesaid plot No. 1 of Khasra No. 36/2 and the documents relating to Khasra No. 36/2. At the time of survey/demarcation, both the parties of the suit were present but the defendant refused to sign the papers. The Revenue Department was present with Revenue Record relating to the Plot No.1 of Khasra No. 36/2, Kotla Mubarakpur, New Delhi. He further stated that his Demarcation Report is correct, as per the survey carried out by him.
PWX-1 was cross-examined by Sh. D.R. Tomar, Ld. Counsel for the defendants. During his cross-examination, PWX- 1 stated that he received the order of demarcation in respect of Khasra No. 36/2 of Village Kotla Mubarakpur, New Delhi. No area was mentioned in the order of demarcation supplied to him. He admitted that the work order dated 08.02.2019 was supplied to him by Tehsildar, Defence Colony in respect of Khasra No. 36, Village Kotla Mubarakpur, New Delhi. He further deposed that he can show the original work order. Copy of the work order dated 08.02.2019 was Ex. PW-X1/D1 (OSR). After receiving the work order, he consulted the copy of Masavi, Field Book and Tatima of the colony. He voluntarily said that he demanded Tatima of the colony so that the disputed plot may be checked whether it falls in Khasra No. 36/2 or not, a disputed plot was _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 21 of 30 shown to him by the Field Kanoongo at the site. He did not consult the Jamabandi. He did not inquire about the total area of Khasra No. 36. he voluntarily said that It is already mentioned in the Field Book. He did not remember area of Khasra No. 36 now, the same can be found in the Field Book. He could not say whether the area of Khasra No. 36 is 7 bigha and 12 biswas. He did not remember the area of Khasra No. 36/2 and how many plots are situated in Khasra No. 36. He admitted that he did not demarcate the Khasra No. 36. He had carried out demarcation of Khasra No. 36/2 with the help of Tatima. He did not remember the scale of Tatima now but he could tell after inspecting the same. He did not consult Akshsijra for the purpose of demarcation of Village Kotla Mubarakpur. He was asked that whether he has filed the documents i.e. Masavi, Field Book and Tatima of Village Kotla Mubarakpur, New Delhi alongwith Demarcation Report. He asnwered that Masavi and Field Book were provided to him by the Revenue Department, therefore, he had not produced it in their drawing report. Only Tatima is shown in their drawing report. He was again asked that whether he has filed the copy of Masavi, Field Book and Tatima provided by the Revenue Department. Had he annexed the same with the Demarcation Report? He answered that as the record was provided by the Revenue Department and his report was checked and verified by the Revenue Department, therefore, Field Book and Masavi were not attached in their report.
He considered the Massvi Kanoongo which has been produced by which was already exhibited as Ex-PW-X-2-2 at the time of demarcation. The scale of Massvi is 1 inch equal to 40 Gattha. He mentioned the scale in his demarcation report. There _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 22 of 30 was no scale of Tatimma as it is manually made. Tatimma is part of demarcation report. He voluntarily said that there was no requirement to mention in demarcation report that Tatimma is manually made. He had mentioned the scale in the drawing which was already exhibited as Ex.PWX1/B. He also considered the Aksh Shizra provided by the Revenue Department of Village Kotla Mubrakpur. He did not remember exactly the scale of Aksh Shizra. Probably it was 1 inch equal to 40 Gattha. They did not mention the scale of Aksh Shizra in demarcation report. He voluntarily said that as Aksh Shizra is not very accurate. He denied that demarcation of Plot no.36/2 is not possible without the demarcation of whole Khasra no.36 which consists of 7 bigha 12 biswa. He was asked that by which Act and Rule he did the demarcation of Khasra No.36/2? (the said question was objected by ld. counsel for plaintiff that law cannot be asked during the cross-examination and the objection was left to be decided at later stage) He answered that he followed the rule of demarcation. He did not know any specific rule regarding Super Imposition. He prepared the demarcation report by visiting spot. He denied that he did not prepare the demarcation report by visiting spot. He could not say by which rule or act Super Imposition is done. No rough work of demarcation is filed with the demarcation report. He further denied that he did wrong super imposition as per Tatimma and Massavi and Plot no.36/2 falls in Khasra No.28/22. He further denied that Option no.2 i.e. Super Imposition was done to favour the plaintiff. He did Super Imposition as per his knowledge and experience after consultation with the Revenue officials. Number of plots are mentioned in digitized demarcation report (drawing). He did not _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 23 of 30 remember exactly number of plots in Khasra no.36. DGPS (RTK) means Digital Global Positioning System (Real Time Kinametic).
12.2. Sh. Kailash Kumar was examined as PWX-2-
2. He stated that he is the summoned witness and brought the summoned record original massvi of village Kotla Mubarakpur of the year 1908-1909. The copy of the same was filed which was Ex.PW-X-2-2.
PW X-2-2 was cross-examined by Sh. D.R. Tomar, Ld. counsel for LRs of defendant. During his cross-examination he stated that he cannot tell scale of Massvi.
12.3. Plaintiff no.2/PW2 was examined in terms of order of the Hon'ble Delhi High Court. He deposed that the suit property is falling in khasra no. 36/2, Village Kotla Mubarakpur, Delhi and the demarcation was conducted by Mr. Dhyani in his presence, in presence of defendants and the revenue officials with revenue record.
PW2 was cross-examined by Ld. Counsel for LRs of defendant.
13. Further, there were directions of Hon'ble Delhi High Court to get the documents Ex.P-1 and Ex.P-2 officially translated. Since there is no official translator attached with the district court, it was agreed between the parties that both of them will get the documents translated. Counsel for Plaintiff admitted the translation filed by counsel for defendants to be correct.
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14. Final arguments were advanced by the parties. Written arguments were also filed on behalf of parties.
ISSUE WISE FINDINGS Issue 1: Whether the plaintiffs are the owner of the suit property?
15. The onus to prove the said issue was on the plaintiffs. Plaintiff no. 2 claims to derive his title from plaintiff no. 1 whereas plaintiff no. 1 claims to have purchased the suit property from M/s Leelaram and Sons. Hence, the question boils down to whether Leela Ram & Sons was the owner of suit property. There is no averment in the entire plaint as to how M/s Leela Ram & sons became the owner of the suit property. Sale by M/s Leela Ram & Sons to plaintiff no. 1 was effected vide a registered sale deed through attorney of the partnership firm. The attorney of the firm through whom the sale was effected and attorney of plaintiff no. 1 through whom the present suit was filed is the same person.
16. The Ld. Appellate Court while deciding the first appeal made the following observation:
"... suit was initially filed by Sh. Madhukar Sharma. According to him, he had purchased the suit plot from M/s Leela Ram & Sons. Thus, in order to prove that plaintiff Madhukar Sharma had purchased the property from M/s Leela Ram & Sons, it was incumbent for plaintiff Madhukar Sharma to have entered into witness box himself and also to have _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 25 of 30 examined someone from M/s Leela Ram & Sons.
Surprisingly, neither Sh. Madhukar Sharma nor anyone from such firm M/s Leela Ram & Sons entered into witness box. On careful perusal of the entire record, it is noticed that Sh. Madhukar Sharma is son of Sh. Prem Raj. Suit had also been filed by Madhukar Sharma through his father/general power of attorney Sh. Prem Raj. It is also noticed that Sh. Madhukar Sharma has allegedly purchased the property vide registered sale deed executed in his favour by M/s Leela Ram & Sons and such sale deed has been proved as Ex. PW5/1 and such sale deed was executed by M/s Leela Ram & Sons through its attorney Sh. Prem Raj. It is found to be same Prem Raj. Thus, vendor and vendee virtually remained the same. Firm M/s Leela Ram & Sons had allegedly sold the suit plot through its attorney Sh. Prem Raj to son of same Prem Raj. No necessity was felt of placing on record any such attorney in favour of Sh. Prem Raj. Prem Raj was acting in a dual capacity. He was attorney of vendor and he is also attorney of vendee/plaintiff. His testimony was, therefore, of utmost importance but he did not choose to grace the witness box for reasons beyond my comprehension."
17. Even permission was sought from the Ld. Appellate Court to examine Sh. Prem Raj, the attorney of plaintiff no. 1 however, even after the Hon'ble Delhi High Court remanded the matter to trial Court, no efforts were taken by the plaintiff to _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 26 of 30 examine either the said attorney or plaintiff no. 1.
18. Further, in order to establish ownership of M/s Leela Ram and Sons, the documents relied upon by the plaintiff are revenue documents Ex. P-1 and Ex. P-2. The said documents were never tendered in evidence by the plaintiff. After the matter was remanded, plaintiff no. 2 again testified in the court however, he still did not tender the aforesaid documents in evidence. Translated copies of Ex.P1 and P2 nowhere mention that M/s Leela Ram and Sons was the owner of 36/2. No efforts were made by the plaintiffs to examine any official from revenue authority.
19. In view of the above discussion, it is concluded that plaintiffs have failed to produce any material on record to show that M/s Leela Ram and Sons was the owner of plot No. 1 bearing Kasra No. 36/2 measuring 220 Sq. Yards situated in Bapu Park, Kotla, Mubarakpur. Hence, plaintiffs have failed to establish that M/s Leela Ram and Sons was having any right in the suit property to have sold the same to plaintiff no. 1 who then sold it to plaintiff no. 2.
20. After the case was remanded back, the only effort made by the plaintiff was to show whether the plot ABCD as shown in site plan falls in khasra 36/2 however, without establishing the ownership of M/s Leela Ram and Sons of plot No. 1 bearing Kasra No. 36/2 measuring 220 Sq. Yards situated in Bapu Park, Kotla, Mubarakpur, New Delhi; demarcation report is of no relevance.
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21. In view of the above discussion, it is concluded that ownership of M/s Leela Ram & Sons is not established. Issue 1 is, accordingly, decided against the plaintiffs.
Issue 2: Whether the defendant has become the owner of the suit property by adverse possession?
22. The onus to prove said issue was on the defendant. Hon'ble Supreme Court in Dagadabai (Dead) By Lrs vs Abbas @ Gulab Rustum Pinjari (2017) observed:
"...It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.
22) It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 28 of 30 a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it."
23. In the present case, the defendant did not admit the plaintiff's ownership over the suit land. No evidence was led as to when the possession of the defendant over the suit property commenced. The defendant did not disclose as to who is the owner of the suit property. Accordingly, the defendant did not claim that his possession was hostile to the owner of the suit property. Hence, the defendant failed to establish his adverse possession over the suit property.
24. In view of the above discussion, Issue 2 is decided against the defendant.
Issue 3: Whether the suit has been properly valued for the purpose of court fees and jurisdiction?
25. The onus to prove said issue was on the plaintiffs. No evidence was led in this regard by the plaintiffs. Hence, Issue 3 is decided against the plaintiffs.
Issue 4: Whether the plaintiff is entitled to the relief claimed?
26. In view of the finding given on Issue 1, present issue i.e. Issue 4 is also decided against the plaintiffs.
_________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 29 of 30 CONCLUSION
27. On the basis of the findings given on Issue 1, it is concluded that plaintiffs have failed to establish their case. Accordingly, the suit of plaintiffs is hereby dismissed.
28. No order as to costs.
29. Decree sheet be prepared.
30. File be consigned to Record Room as per rules.
Announced in open Court Digitally
signed by
On this 21st day of December, 2023 UPASANA UPASANA SATIJA This Judgment contains 30 pages SATIJA Date:
2023.12.21 16:32:49 and each page is signed by me. +0530 (UPASANA SATIJA) ACMM (WEST) TIS HAZARI COURTS/DELHI _________________________________________________________________________ CS No. 12356/14 Madhukar Sharma Vs. Kishore Lal Page no. 30 of 30