Delhi District Court
Sh. Lajja Ram vs Sh. Haribhushan Tripathi on 28 January, 2023
IN THE COURT OF KADAMBARI AWASTHI,
SENIOR CIVIL JUDGE, SOUTH WEST DISTRICT,
DWARKA COURTS, NEW DELHI.
JUDGMENT
1. Sh. Lajja Ram S/o Sh. Sunehri Lal R/o L-3/9, Mohan Garden, Uttam Nagar, New Delhi-110 059
2. Sh. Navin Singh S/o Sh. Gaibi Singh R/o L-1/54, Mohan Garden, Uttam Nagar, New Delhi-110 059 ................ Plaintiffs Versus Sh. Haribhushan Tripathi ..............Defendant S/o Ramdev Tripathi, R/o H. No. 7A, Baba Hari Das Geetanjali Enclave, Jharoda Kalan, Najafgarh, New Delhi-110 072 SUIT FOR PERMANENT AND MANDATORY INJUNCTION DATE OF INSTITUTION : 10.04.2017 DATE OF FINAL ARGUMENT : 25.01.2023 DATE OF DECISION : 28.01.2023
1. Vide this judgment, this Court shall decide the present suit filed by plaintiff against defendant for mandatory and permanent injunctions to direct the defendant to take appropriate Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.1 of 21 action for demolition of illegal and unauthorized construction over the suit property bearing No. 33, area 50 sq. yds. Out of Khasra No. 113/19 situated in the revenue estate of village Jharoda Kalan, Delhi State, Delhi abadi known as Bada Hari Dass Nagar, Jharoda Kalan, New Delhi and also direct the defendant to remove the encroachment over the remaining portion of the suit property and decree of permanent injunction restraining the defendant, his heirs, agents, representatives, attorneys, assignees etc. for further encroachment over the remaining portion and raising further illegal and unauthorized construction over the suit property and/or creating any third party interest over the suit property. PLAINTIFF'S CASE
2. The plaintiff's case as discernible from his pleadings is that the plaintiff is the joint owner of the suit vide title property i.e. GPA, agreement to sell, affidavit, money receipt, Will, possession letter dated 27.06.2008. It is averred that defendant is a property dealer and dealing with property affairs in the name & style of Pooja Properties. It is averred that plaintiffs approached the defendant for selling the suit property. The defendant had taken the photocopy of the documents in the second week of Sep., 2016. Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.2 of 21 There was no bayana receipt signed and executed by the plaintiffs in favour of defendant or any other person nor any titled documents regarding the sale of the suit property was executed by the plaintiffs. It is averred that plaintiff had required some money thereupon, the defendant issued a cheque of Rs. 15,000/- and assured to give entire sale consideration money at the time of preparation/execution of the sell documents of the suit property. It is averred that defendant sold 22 sq. yards (a piece of land out of 50 sq. yards of the said property) without consent and knowledge of the plaintiffs nor the plaintiff singed any title documents in favour of any person. It is averred that the plaintiff has not received the consideration amount regarding the sale of 22 sq. yards from defendant. It is averred that plaintiff also asked for remaining area of the said property i.e. 28 sq. yards of the said property. The defendant despite several request did not disclosed the status of the remaining 28 sq. yards of the suit property except the 22 sq. yards out of the 50 sq. yards. It is averred that the plaintiffs had not executed any bayana receipt of any any title documents regarding the sale of the suit property in favour of any person but the defendant has sold 22 sq. yards ( a piece of land property out of 50 Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.3 of 21 sq. yards) owned by the plaintiffs and now the defendant wants to grab the suit property property and started constructing house over the said suit property. It is submitted that defendant has no right, title or interest to sale the suit property of the plaintiffs and defendant has prepared false and fabricated documents and sold the suit property to someone else without the consent and knowledge of the plaintiffs. It is averred that plaintiffs have made various complaint to the variuos authorities including police, but in vain. Hence, this suit.
MISCELLANEOUS PROCEEDINGS
3. Summons of the suit along-with notice of application under Order 39 Rule 1 and 2 of The Code of Civil Procedure, 1908 (hereinafter referred to as CPC) were issued against defendant, same was served upon defendant, defendant filed his written statements and replies to application under Order 39 Rule 1 and 2 CPC. Application under Order 39 Rule 1 and 2 CPC of the plaintiff was decided vide order dated 05.09.2017. CASE OF DEFENDANT
4. The case of defendant as discernible from his pleadings is that the plaintiffs have sold the property for lawful sale Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.4 of 21 consideration and received considerable about from the defendant and further handed over vacant possession in part performance as plaintiff no.2 was in immediate need of money for his daughter's marriage. It is averred that the rate of plot was agreed @ 8000/- per sq. yards and the total costs came to Rs. 1,76,000/-. It is averred that defendant paid a sum of Rs. 30,000/- (out of which Rs. 15,000/- in cash and remaining Rs. 15,000/- through cheque) to the plaintiffs on 15.09.2016. It is averred that thereafter defendant had made payment of Rs. 46,000/- as part payment in the presence of Sh. Chhotey Lal, Sonu Dagar @ Parle and Mr. Udai Tripathi (son of defendant). It is averred that thereafter the defendant requested the plaintiff time and again to receive the balance amount of Rs. 1 lakh and to executed the sale documents, however, plaintiffs evaded the execution of the sale documents and raised false and frivilous dispute with the defendant by proclaiming that he had allegedly agreed to sell the entire plot measuring 50 sq. yards. to the defendant. It is averred that plaintiff failed to fulfill their part of contract by executing the documents of title in respect of 22 sq. yards. It is averred that the defendant himself is in possession of the portion constructed on plot admeasuring 22 sq. yards and plaintiff Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.5 of 21 have received a sum of Rs. 76,000/- from the defendant but plaintiff refused to obtained the remaining sale consideration of Rs. 1 lakh. It is averred that construction has been raised over 22 sq. yards by the defendant with the consent and knowledge of plaintiff. It is averred that the complaint lodged by the plaintiff was to create false evidence. It is averred that the site plan is not as per situation of the property. The defendants also denied the other averments of suit of plaintiff and prayed for dismissal of the suit. REPLICATIONS
5. The plaintiff has not filed replication to the written statements of defendants.
ISSUES FRAMED
6. After completion of proceedings, following issues were framed by my scholarly predecessor vide order dated 08.11.2017 : -
(i) Whether the plaintiff is entitled to the relief of mandatory injunction as prayed? OPP
(ii) Whether the plaintiff is entitled to the relied of permanent injunction as prayed for in prayer clause (B) of the plaint? OPP
(iii) Whether the plaintiff is entitled to the relief Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.6 of 21 of permanent injunction as prayed for in prayer clause (C) of the plaint? OPP
(iv) Relief.
PLAINTIFF'S EVIDENCE 7.1 In order to prove his case, plaintiff has examined himself as PW1, tendered his examination-in-chief vide affidavit Ex.PW1/A reiterating almost similar facts as of his pleadings and exhibited/marked documents i.e. 1. site plan Ex. PW-1/1, 2. the title documents such as GPA, agreement to sell, affidavit, Ex. PW-1/2 (colly) (OSR), 3. Property document of Sh. Balwan S/o Sh. Jiya Ram as mentioned in the affidavit as Ex. PW-1/3 stands de- exhibited and same is marked as Mark A, 4. copy of visiting card in the name of Pooja Properties is Ex. PW-1/4 (OSR), 5 complaint to CP, DCP Nangloi and SHO PS BHD Nagar dated 03.03.2017 is Ex. PW-1/5, 6. copy of Adhar Card of the plaintiff is Ex. PW-1/6 (OSR), 7. Copy of Adhar card of Sh. Naveen Kumar is Ex. PW-1/7 (OSR) and 8. the photocopy of the photographs as mentioned in the affidavit as Ex. PW-1/8 stands de-exhibited and same is marked as Mark-B. PW1 was cross-examined at length by Ld. Counsel for the defendant.
Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.7 of 21 7.2 No other witness was examined by plaintiff side. EVIDENCE OF DEFENDANTS 8.1 Defendant no.01 examined himself as DW1, tendered his examination-in-chief vide affidavit Ex.DW1/A reiterating almost similar facts as of their pleadings and relying upon the documents i.e. site plan Ex. DW1/1. DW-1 was examined, cross- examined at length by Learned Counsel for the plaintiff which is not reproduced herein for sake of brevity and was discharged. 8.2 DW2/Sh. Sonu Dagar @ Sonu @ Parle, tendered his examination-in-chief vide affidavit Ex.DW-2/A and relying upon the documents i.e. copy of adhar card Ex. DW-2/1 (OSR). DW-2 was examined, cross-examined at length by Learned Counsel for the plaintiff which is not reproduced herein for sake of brevity and was discharged.
8.3 DW-3/Sh. Udhay Narayan Tripathi, tendered his examination-in-chief vide affidavit Ex.DW-3/A. DW-3 was examined, cross-examined at length by Learned Counsel for the plaintiff which is not reproduced herein for sake of brevity and was discharged.
8.4 No other witness was examined by defendants. Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.8 of 21 SUBMISSIONS/CONTENTIONS/CASE OF BOTH SIDES 9.1 It is argued by the counsel for plaintiff that defendant is a property dealer and dealing with property affairs in the name and style of Pooja Properties and defendant sold 22 sq. yards a piece of land out of said 50 sq. yards of the said property without consent and knowledge of the plaintiffs. It further argued that defendant is having malafide intention to grab the suit property of the plaintiff. It is further submitted that the defendant has no right, title or interest in the suit property.
9.2 Per contra, it is argued by the counsel for defendant that plaintiffs have sold the suit property to the defendant for a consideration amount of Rs. 1,76,000/- and out of which defendant had already paid Rs. 76,000/- to the plaintiffs on different occasions. The defendant had called up the plaintiff to pay remaining amount of Rs. 1 lakh time and again and to execute the document but plaintiff paid no head and filed the present suit. It is further argued that defendant is in possession of the suit property. It is further argued that the suit of the plaintiff is without any cause of action and is liable to be dismissed.
9.3 Case of both side considered. Records perused. Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.9 of 21 ISSUE WISE DISCUSSION Issue no.(i) : Whether the plaintiff is entitled for the relief of mandatory injunction as prayed? OPP 10.1 The onus to prove the issue rest upon the plaintiff, by way of mandatory injunction, the plaintiff has sought directions for the defendant to take appropriate action to demolished the illegal and unauthorized construction raised by him, over the suit property bearing plot no. 33, area 50 sq. yards out of khasra No. 113/19, situated in village Jharoda Kalan as shown in site plan. Further, the defendant also directed to remove the encroachment over the remaining portion of the suit property. To prove their case plaintiff examine PW-1/Sh. Lajja Ram in the case and relied series of documents. PW-1 relief upon documents Ex. PW-1/2 (colly), the title documents such as GPA, Agreement to sell, Affidavit, Receipts, Will and possession letter all dated 27.06.2008 Mark 'A'. Documents of Sh. Balwan S/o Sh. Jiya Ram copies of document i.e. GPA, Agreement to Sell, Affidavit, receiving, Will, possession letter all dated 05.01.2007 executed by the previous owner as stated above in favour of Sh. Devendar Chaudhary from who the plaintiff has purchased the suit property.
Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.10 of 21 10.2 Visiting card of Pooja Property is Ex. PW-1/4, admittedly the name & style in which defendant runs business of property dealing. Furthermore, Ex. PW-1/5 (colly) the complaint written on behalf of plaintiff to various police authority in respect of the tress passing and unauthorized construction over suit property raised by the defendant and some other documents as well. PW-1/D-1 (colly). The PW-1 claimed that, he alongwith one Naveen (co-plaintiff) has purchased the suit property jointly from one Devender. PW-1 given correct direction in the property as shown in Ex.PW-1/1 site plan in testimony and it correspond the same. He claimed to have purchase the property in 50% share each for consideration of Rs. 1 lakh giving 50,000/- each. It was claimed to be a vacant peace of land at the time of purchase. The witness admittedly a Rickshaw puller and being an illiterate could not able to tell the description of documents which were being executed at the time of purchasing the property in dispute. He could not tell the name of the witness to the agreement as well. PW-1 admitted to have approached Hari Bhusan Tripathi i.e. defendant to sell the suit property, as he was in need of money and defendant had handed over a cheque of Rs. 15,000/- but he did not recalled the date of the Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.11 of 21 incident. He categorically denied to have receive Rs. 15,000/- in cash from the defendant and denied further that rate of property was fixed @ Rs. 8000/- sq. yards and total sale consideration amount as agreed upon was Rs. 1,76,000/- total. PW-1 also desired to have received further amount of Rs. 46,000/- on 10.11.2016 from the defendant towards the consideration amount in the presence of Chote Lal, Sonu Dagar & Uday Tripathi etc. The title documents produce by PW-1 though customary in nature, assert his right over the property in question. Furthermore, the defendant herein has not produced any documentary proof to support his claim over the suit property being purchased by the plaintiff for consideration of Rs. 1,76,000/- as alleged or the defendant had obtained the possession of disputed property from plaintiff. 10.3 Admittedly, the defendant/DW-1 is a person, who has been in business of sale and purchase of real estate for last 25 years and runs his full fledged business under the name and style of Pooja Property Dealers as per Ex.PW-1/D1 (colly) . DW-1 claims that Lajja Ram and Naveen approached to sale him the suit property i.e. plot of 50 sq. yards on 15.09.2016 and had left the photo copies of the documents of the above stated plot with him, Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.12 of 21 but improved his statement and said that these two above named persons had left the documents after obtaining earnest money in the form of Rs. 15,000/- in cash and Rs. 15,000/- through cheque. It is admitted by the DW-1 that no Bayana Agreement was executed between the parties while giving and taking of earnest money. It is further admitted that DW-1 generally execute Bayana Agreement while taking the bayana or executing it on behalf of client. This exceptional practice of not executing a bayana agreement while giving an earnest money to plaintiff is not trustworthy and this statement of defendant does not inspire the faith of the court. Only reason, that plaintiff was an acquittance or he had some dealing with him in past does not give him leverage to omit to execute a vital piece of document which is necessary to generate faith and transparency in a deal between parties, where immovable property is a subject matter.
10.4 The second claim of the DW-1 that he had given another amount of Rs. 46,000/- to the plaintiff No.2 on 15.11.2016 for the purpose of the marriage of her daughter and towards the part payment of consideration amount is also not trustworthy. The daughter of plaintiff never got married in the year 2016 but in 2019 Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.13 of 21 Ex. PW-1/D-1 (colly) (i.e. marriage card of plaintiff no.2). It is admitted by the defendant/DW that he had build up 22 sq. yards of plot in question and also admitted that no documents were executed regarding the sale of plot in question, the testimony of DW-1 that due to his cordial relation with the plaintiff, the formality of execution of agreement of sale was done away does not inspire the faith of the court as is a white lie. On two occasions, the DW- 1/defendant neither executed a bayana agreement nor got executed even agreement to sale while, he paid part consideration amount to plaintiff no.2, but nevertheless, alleged to have obtained the possession of the property, which is difficult to believe. Further there is no legal notice issued by the defendant to the plaintiff for specific performance of agreement, nor the defendant filed any counter claim for the relief of specific performance alongwith the WS. The defendant/DW-1 had given the earnest money and part payment of consideration amount, but he did not executed the bayana agreement or sale agreement or the suit property, point to be noted here is that DW-1/defendant is himself an estate for last 25 years. It is also pertinent to mention that all the defendants witnesses are either his neighbour, friends and own son, these Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.14 of 21 witnesses would neutrally deposed in favour of the defendant and there is little possibility that they may depose truthfully before the court.
10.5 From this deliberation, it is proved that there is no sale purchase transaction took place between the plaintiff and defendant with respect to the suit property and the defendant had admittedly no title documents in support of his claim. The version of defendant that in lieu of Rs. 46,000/- payment of part consideration lead to the granting of possession of suit property to him by the plaintiff is also could not be proved. The witness to the said transaction are not trustworthy. Hence, the possession of the suit property by the defendant is trespass and raising structure on the same is unauthorized as well as illegal. Hence, issue No. (i) is decided in favour of plaintiff against the defendant. Issue no.(ii) & (iii)
(ii) Whether the plaintiff is entitled to the relied of permanent injunction as prayed for in prayer clause (B) of the plaint? OPP &
(iii) Whether the plaintiff is entitled to the relief Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.15 of 21 of permanent injunction as prayed for in prayer clause (C) of the plaint? OPP 11.1 Issue no.2 & 3 would be decide together for the sake of convenience as both relates to the relief of permanent injunction. 11.2 The plaintiffs have sought permanent injunction to restrain the defendant and its successor in interest from creating thirst party interest in the suit property. He further sought permanent injunction to restrain the defendant and his successor in interest from further encroaching over the remaining portion of the suit property and raising further illegal unauthorized construction over the suit property.
11.3 As per the deliberation made earlier, it is proved that the defendant had illegally encroach upon the 22 sq. yards portion of the suit property belonging to the plaintiffs and had raised a one storey construction upon it with linter Ex. PW-1/D3-1 (Mark B). It was admitted to be the photographs of the suit property by DW-3 and DW-2 admitted to have raise construction on the suit property. 11.4 As observed previously that defendant had no documents executed to support his claim of ownership of the suit property. However, the defendant/DW-1 in his testimony produce a Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.16 of 21 copy of customary documents of the other properties approx. 140 sq. yards and admitted to have a piece of land of 27 sq. yards adjacent to the suit property. It corresponds to the claim of the plaintiff that in order to enhance the area of his land, the defendant had illegally possessed the part of suit property belonging to the plaintiff. There is no title documents of the suit property with defendant. The copy of the sale deed produced by the defendant during his cross-examination, gives new version/plea to his case. However, these pleas have never been taken in the entire pleadings by the defendant or in the evidence. The production of documents were opposed and rightly so, by the Ld. counsel for the plaintiff. These documents are beyond pleadings and original documents were never produced before the court.
11.5 It has been observed in 2011(12) SCC, 695 page 705 that "......in the absence of pleadings, evidence, if any produced by the parties can not be considered...... no party should be permitted to travel beyond its pleadings and that all necessary and material facts should be pleaded by the party in support of case set up by it". In Kashi Nath V. Jaganath (SCC p745, para 17), it is observed that " where the evidence is not I line with the pleadings Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.17 of 21 and is at variance with it. The said evidence can not be looked into or relied upon. Same remain the object for framing the issues under Order 14 CPC and the court should not decide a suit on a matter/point on which no issue has been framed". In Syed and Co. V. State of J&K (SCC pp. 423-24 paras 7-8), it has been observed that " without specific pleadings in that regard, evidence could not be led in since it has settled principle of law that no amount of evidence can be looked unless there is a pleading". In Chinta Lingam V. Govt. of India, it has been held that " unless factual foundation has been laid in the pleadings no argument is permissible to be raised on that particular point". 11.6 It is observed by the Hon'ble High Court of Madya Pradesh in case titled as "Manik Rao and Others Vs. Ramesh & Ors." that ' the condition precedent for applicability of sec. 53-A of the Transfer of Property Act are firstly, that there should be a contract to transfer for consideration any immovable property; secondly that the contract should be in writing and its terms can be ascertained with reasonable certainty; thirdly, that the tranferee n part-performance of the contract has taken possession of the property or any part thereof of it he is already in possession, he Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.18 of 21 continues in possession in part-performance of the contract; fourthly that the transferee has done some act in furtherance of the contract; and fifthly, that the transferee has performed or is willing to perform his part of the contract. Besides that, a party relying on Sec. 53-A of the Transfer of Property Act has to plead and prove the readiness and willingness on its part to perform the contract." 11.7 Hence, the documents produced by the defendant at later stage without the leave of the court are inadmissible in evidence. Furthermore, these documents were/are in the possession of the defendant all along what prevented them to produce before the court is not explained to the court by the defendant. No application was moved to bring the above stated documents on record, or to amend pleadings in its light. Consequently, producing of these documents alongwith list of witness is of no avail. The witnesses produced by the defendant in support of his case had miserably failed to prove his case or to win the faith of the court. It is interesting to mention that at the time of transaction with the plaintiff, the defendant was always surrounded by these 3 witnesses. It raises the presumption that either they are interested witnesses or deposing falsely about their presence at the spot. The Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.19 of 21 testimony of DW-3 is most interesting who has every details of the transaction, but when it questioned about the general practice of his father with clients or deals, he gave invasive answer and even tells the name of the plaintiff no.2 incorrect. It shows the falsity of the witness. Defendant failed to rebut the case of the plaintiff. Hence, issue No. (ii) & (iii) is decided in favour of plaintiff against the defendant.
CONCLUSION/RELIEF
12. In view of deliberation above, the suit of plaintiff is hereby decreed. Defendant is directed to demolish the illegal and unauthorized construction raised over the suit property bearing No. 33, area 50 sq. yards out of Khasra No. 113/19 situated in the revenue estate of Village Jharodakalan, Delhi State, Delhi abadi known as Bada Hari Dass Nagar, Jharoda Kalan, New Delhi- 110072 and also directed to remove the encroachment over the remaining portion of the suit property. Defendant, his legal heirs, representatives, attorneys, assigns, etc are restrained to further encroach over the remaining portion of the suit property and also restrained for raising further illegal and unauthorized construction of the suit property and further directed to not create any third party Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.20 of 21 interest over the suit property. Parties are left to bear their own costs. After preparation of decree sheet, file be consigned to Record Room after due compliance.
Announced in the open Court on 28.01.2023.
(KADAMBARI AWASTHI) SCJ-cum-RC/South-West, DWK/ND/28.01.2023 Lajja Ram & Anr. Vs. Haribhushan Tripathi. CS No. 345/17 Page No.21 of 21