Sh. Bijender Singh vs Sh. Devinder Kumar on 13 March, 2014

[Cites 16, Cited by 0]

Delhi District Court

Sh. Bijender Singh vs Sh. Devinder Kumar on 13 March, 2014

            IN THE COURT OF SH. CHANDER SHEKHAR 
             DISTT. & SESSIONS JUDGE (NORTHWEST) 
                DISTRICT COURTS : ROHINI : DELHI.

C.S. No. 185/10

                Sh. Bijender Singh
                S/o Sh. Deep Chand,
                R/o : E76, Gali No.3, Hardev Nagar,
                Village Jaroda Majra, Burari,
                Delhi110084                           ....Plaintiff

                                              Versus

1               Sh. Devinder Kumar
                S/o Sh. Ram Prasad,
                R/o : H. No.10, Gali No.7, 
                Village Mukandpur, Delhi110042.

2               Sh. Jaswant Singh,
                S/o Sh. Ram Prasad,
                R/o : E960, JJ Colony,
                Jahangirpuri, Delhi110033                                       ....Defendants 

                Date of institution                              :               09.01.2009
                Date of hearing arguments                        :               01.03.2014
                Date of decision                                 :               13.03.2014

     

CS No. 185/10                   Bijender Singh Vs. Devender Kumar & Anr.                   Page 1 of 65
                                 J U D G M E N T

1 The plaintiff has filed the present suit for the recovery of possession under Section 6 of the Specific Relief Act against the defendants on 09.01.2009 averring therein that the defendants No.1 & 2 are real brothers and they jointly purchased a plot of land bearing No.10, measuring 100 sq. yards out of Khasra No.307/202, situated at PartII, village Mukandpur, Delhi110042.

It is further averred that the defendants orally partitioned the aforesaid plot about 10 years ago and consequent upon the partition, half of the plot towards eastern side measuring 50 sq. yards fell to the share of defendant no.1 and the remaining half portion measuring 50 sq yards from western side fell to the share of the defendant no.2 which was lying vacant.

It is further averred that the defendant no.2 offered to sell his portion of the plot to the plaintiff to which the plaintiff agreed and the consideration amount was settled at Rs.50,000/ (Rs. Fifty Thousand) which was paid to the defendant no.2 and pursuant to the agreement, the defendant no.2 executed agreement to sell, General Power of Attorney, Will, receipt and possession letter on 23.12.2002 in favour of the plaintiff qua the said plot and the defendant no.2 also delivered actual physical possession of the said plot after receipt of the CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 2 of 65 entire consideration amount and the plaintiff occupied the same. which the (hereinafter referred to as suit property) which is shown in red colour in the site plan annexed with the plaint.

It is further averred that after purchasing the said plot from the defendant no.2, the plaintiff constructed boundary wall around the said plot having height of about six feet and he got one door fixed and locked the same.

It is further averred that the defendant no.1 clandestinely broke open the lock put by the plaintiff on the gate of the suit property, illegally without the consent of the plaintiff and took its forcible possession on 02.11.2008 and put his fodder cutting machine (Gandasa) in the suit property and the plaintiff was shocked to know about the nefarious act of the defendant no.1 and he requested to vacate the suit property but the requests went unheeded.

It is further averred that the defendant no.1 closed the door of the suit property by erecting wall and affixed gate at the place marked A and B in the site plan on 03.11.2008.

It is further averred that the defendant no.1 is not equipped with any legal right to dispossess the plaintiff from the suit property illegally and forcibly. Hence, the present suit for recovery of possession.

CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 3 of 65 2 The defendants have filed their written statements separately denying the case of the plaintiff. The defendant no.1, in his Written Statement has stated that it is denied that the defendant no.2 has got any share in the suit premises as of now. The share, if any, was purchased by the defendant no.1 from the defendant no.2 in a family settlement.

It is further, inter alia, stated that the suit property felling to the share of the defendant no.2 was purchased by the defendant no.1 after paying him the entire consideration. He denied that half of the portion towards eastern side fell to the share of the defendant no.1 and the remaining half portion towards western side fell to the share of the defendant no.2. It is stated that in fact the defendant no.1 has raised the construction on whole of the plot after coming into its possession in the year 1988.

It is, inter alia, denied by the defendant no.1 that any alleged deal ever took place between the defendant no.2 and the plaintiff. It is stated that the defendant no.2 has already sold the property to the defendant no.1 in the year 1992 after entering into the family settlement between the defendant no.1 and the defendant no.2.

It is further denied that the defendant no.1 has taken the CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 4 of 65 forcible possession on 02.11.2008. It is stated that it is only because the suit premises was in possession of the defendant no.1, the defendant no.1 on 30.08.2007 gave the statement before the Court of Sh. Praveen Singh, Ld. Civil Judge, Delhi to the effect that the defendant no.1 would not sale or transfer the suit property till the pendency of the suit.

3 The defendant no.2 has also filed the written statement separately denying the case of the plaintiff and stating therein that he is the sole, absolute and exclusive owner of the suit property. He presented a different picture of the suit property. It is stated in the Written Statement filed by him that defendant no.1 forcibly entered into the possession of the defendant no.2 and when the defendant no.2 came to know about the said fact filed a police complaint dated 08.09.2005 against the defendant no.1 before the police officials of Police Station Samaipur Badli.

It is further inter alia stated that the defendant no.2 agreed to sell the suit property to the plaintiff and documents were executed by him but since the defendant no.2 failed to hand over the possession, the plaintiff terminated the said agreement and took back his sale consideration amount and returned the original document executed by CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 5 of 65 Shri Desh Raj in favour of the defendant. It is further stated that when the defendant no.2 requested the plaintiff to execute cancellation documents, the plaintiff on one pretext or the other stated that he has already returned the original documents to the defendant no.2 and as such he refused to execute cancellation deed.

4 The plaintiff filed separate replications to the written statements filed by the defendants wherein he denied the contentions raised by the defendants in the Written Statements and reaffirmed those as stated in the plaint.

The plaintiff stated in the replication to the Written Statement of defendant no.2 that no question to cancel the documents arises as the plaintiff had purchased the property against the consideration and that no amount of consideration was returned by the defendant no.2 to the plaintiff.

5 The defendants chose not to file any rejoinder to the replications filed by the plaintiff.




6               From the pleadings of the parties and documents on record, 

following issues were framed on  27.03.2009 :

CS No. 185/10                   Bijender Singh Vs. Devender Kumar & Anr.                   Page 6 of 65
                    i)           Whether the plaintiff was in possession of the  
                                suit property and illegally dispossessed by the  
                                defendant no.1 on 02.11.2008?  OPP.

                ii)             Whether this Court has jurisdiction to entertain 
                                the present suit?  OPD1.

                iii)            Whether the suit is maintainable?  OPP

              iv)               Relief, if any?



7               Before delving deep into the present suit, I would like to

take up the application intermittently filed on behalf of the parties under Section 151 CPC. By way of the application under Section 151 CPC, the plaintiff has prayed to take notice of the subsequent event regarding factum of raising of illegal and unauthorized construction of tin shed room which was constructed on 01.09.2013 and proceed according to law. On the other hand, the defendant no.2 has filed one application under Section 151 CPC praying therein that in view of the Judgment dated 29.08.2013 passed by Sh. Subhash Kumar Mishra, Ld. Civil Judge i.e., the subsequent event, the suit of the plaintiff is liable to be dismissed being not maintainable. In view of the rival CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 7 of 65 contentions, I deem it appropriate to decide the fate of the said application simultaneously along with fate of the issues. 8 In order to prove his case, the plaintiff has examined the following four witnesses :

PW1 Sh. Bijender Singh The plaintiff examined himself and tendered his affidavit Ex. PW1/A in evidence and his statement was recorded as PW1. The plaintiff also proved documents on the record in support of his case i.e. the site plan Ex. PW1/1, Agreement to sell Ex.PW1/2, General Power of Attorney Ex.PW1/3, receipt Ex.PW1/4, possession letter Ex.PW1/5, Will Ex.PW1/6 and the affidavit Ex.PW1/7.

PW1 has been duly cross examined by Counsel for the defendants. During the course of cross examination, PW1, inter alia admitted that the property measuring 100 sq. yards was partitioned between the defendant no.1 and the defendant no.2 and that the partition between the defendants was not effected in his presence.

He further inter alia stated that the suit property was purchased by the plaintiff from the defendant no.2 in the last week of December, 2002 for a sum of Rs.50,000/; and he took possession of the plot in suit after purchasing the same and that no such documents CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 8 of 65 were executed in his favour with regard to handing over and taking over the possession.

He has further testified that he cannot produce any receipt/ bill or any other document to show the expenditure incurred by him in construction of the boundary wall and purchase of gate. He stated that he is a property dealer by profession. He has admitted that he had not lodged any written complaint with the police authority with regard to forcible possession taken over by the defendant no.1 and volunteered that he went to police station only.

To a specific Court query regarding whether he had written any application which he intended to make to police, he replied 'no' and further added that he did not make any complaint to any of the police authorities with regard to forcible dispossession.

To a specific Court query regarding whether he had any document which may show his possession in the suit property prior to 02.11.2008, he replied that he is in possession of documents evidencing his possession qua the suit property prior to 02.11.2008 and he had placed those documents on record.

PW1, during the course of cross examination, further stated that he saw the documents of plot measuring 100 sq yards of the suit property which were in the name of both the defendants. He saw CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 9 of 65 the papers/ documents of partition of the plot measuring 100 sq. yards wherein 50 sq. yards was given to defendant no.1 and 50 sq. yards was given to the defendant no.2.

He further inter alia admitted that as on the date of his examination, no gate was installed towards southern side of the suit property. He volunteered that he had installed a gate but that was removed by the defendant no.1. He further admitted that there was no gate on the day when the suit was filed. He denied that he did not raise any boundary wall towards western side of the suit property. He did not have estimates of the details of the expenditure incurred by him on the construction of the boundary wall.

He further inter alia submitted that he is not in possession of any document/ photograph or any other documentary proof to show his possession of the disputed property besides the documents which have already been placed on record by him.

He further stated that on one side of the property is the residence of Sh. Devinder, defendant no.1, however, he does not remember the names of other neighbours of the suit property.

Furthermore, he has admitted that whenever a property is purchased, the entire set of documents of title of the said property is handed over to the buyer by the seller. He volunteered that in his case, CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 10 of 65 the defendant no.2 had delivered photocopy of the documents of title to him and the original were retained by the defendant no.1 as he is also owner of the remaining 50 sq yards of the plot.

He further stated that the documents of the ownership were with the defendant no.1 and that the defendant no.2 went to the defendant no.1 and brought the papers from there.

He further admitted that he did not make any telephone call from his mobile phone to the police control room no.100 to inform them about the alleged dispossession from the suit property by the defendant no.1.

He has inter alia further stated that as on the date of his cross examination, the market value of the suit property is Rs.45 lacs. He further stated that he has good relations with Jaswant Singh and he had good relations with him in the past also.

He further testified that he knows Sh. Vinod Bhardwaj who is alive and he knows his residential address.

PW2 Sh. Praveen Kumar Sharma PW2 tendered his affidavit Ex. PW2/A in evidence and his statement was recorded as PW2. In his examinationinchief, he has stated that the suit property was purchased by the plaintiff from Sh. Jaswant Singh (defendant no.2) about 7 years ago and after purchase of the property, the CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 11 of 65 defendant no.2 delivered the actual physical possession of the suit property to the plaintiff who occupied the same. After purchase of the plot in suit, the plaintiff got constructed boundary wall on the suit property and affixed a gate. The height of the boundary wall is around 6 feet.

He further stated that the defendant no.1 took forcible possession of the plot in suit in the first week of November, 2008. The defendant no.1 put his fodder cutting machine in the suit plot and removed the gate and erected a wall. The adjoining property owned by the defendant no.1 and he opened gate towards the suit plot for ingress and outgress. At the time of purchase of the suit plot, it was open and till date no pucca construction has been raised.

PW2 has been cross examined on behalf of the defendants. During the course of crossexamination on behalf of the defendant no.1, PW2 stated that he has appeared as a witness at the instance of the plaintiff and that plaintiff is his friend and he knows him well. He further inter alia testifies that he is a property dealer in Mukandpur area where the suit plot is situated.

He further states that at the time of breaking the lock of the suit plot, he was not present and he does not know at what time the lock of the suit plot was broken.

CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 12 of 65

During the course of cross examination on behalf of the defendant no.2, PW2, inter alia states that he is on friendly terms with the plaintiff. The plaintiff never paid any money to any party towards purchase of cement, bricks and other building material for the construction of the alleged boundary wall. The plaintiff was not dispossessed by the defendant in his presence in November, 2008.

He admitted that no wall was erected around the suit property even after dispossession.

PW3 Sh. Pramod Kumar Khatri PW3 tendered his affidavit Ex. PW3/A in evidence and his statement was recorded as PW3. In his examinationinchief, he has stated that the suit property was purchased by the plaintiff from the defendant no.2 about 7 years ago and after purchase of the property, the plaintiff occupied the same and got constructed boundary wall around the suit property having height of 6 feet. The plaintiff also got affixed a gate.

He further stated that in the first week of November, 2008, the defendant no.1 took forcible possession of the suit property.

PW3 has been crossexamined on behalf of the defendants. During the course of crossexamination on behalf of the defendant no.1, PW3 stated that he is not a summoned witness and he has appeared as a witness at the instance of the plaintiff. He further states CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 13 of 65 that he is the sister's son (bhanja) of the plaintiff. He further states that the suit plot was surrounded by three walls having height of four feet having width of nine inch each.

He further states that he came to know about the dispossession of the suit plot as he was not present.

During the course of cross examination on behalf of the defendant no.2, PW3, inter alia, states that the construction of the boundary wall was also not done by the plaintiff in his presence and no gate was either erected or purchased by the plaintiff in his presence.

PW3 further states that the wall adjoining the built up portion of the defendant no.1 towards the plot under dispute is approximately ten feet in height. In November, 2008, no such incident happened in his presence when the plaintiff was dispossessed from the suit property. He further states that he went to the suit property approximately 67 months ago.

PW4 Sh. Balwan Singh PW4 is the Document Examiner who tendered his affidavit Ex. PW4/A in evidence and his statement was recorded as PW4. In his examinationinchief, he relied upon the documents i.e., documents regarding disputed signatures Ex.PW4/A to Ex.PW4/C, the photo enlargement of comparative admitted signatures are Ex.PW4/D to H and the CD Ex.PW4/I. He has testified that his CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 14 of 65 report is Ex.PW4/J. PW4 has been duly cross examined on behalf of the defendants at length.

9 On the other hand, the defendants have examined the following witnesses in their defence :

D1W1 Sh. Devender Singh D1W1 is the defendant no.1 himself who stepped into witness box and tendered his affidavit Ex. D1/A in evidence. D1W1 also proved documents on the record in support of the case of the defendants i.e. certified copies of the plaint, Written Statements, evidence of Sh. Jaswant Singh as PW1 and the statement of Devender Kumar dated 30.08.2007, in suit No.176/06, which are collectively exhibited as Ex.DW1/1.

D1W1 has been duly cross examined at length on behalf of the plaintiff. During the course of his cross examination, he inter alia stated that the suit property was purchased by him in the month of March, 1992 for a sum of Rs.5,000/ and he got this fact regarding consideration amount of Rs.5,000/ recorded in his Written Statement. After going through the contents of the Written Statement with the help of his counsel, he stated that the fact of consideration amount of Rs.5,000/ is not mentioned in the Written Statement. CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 15 of 65

He further stated that he did not obtain any receipt or delivery of possession of suit property from the defendant no.2. He volunteered that he has been in possession of the suit property for long time. He further stated that he does not remember date, month and year when the defendant no.2 handed over the possession of the suit property to him. He further volunteered that he has been in possession since 1990 of the suit property. He denied that he had not been in possession of the suit property.

He inter alia denied that he had been in possession of the suit property since 1990. He got this fact incorporated in his written statement. He denied that he took forcible possession of the suit property on 02.11.2008 unauthorizedly and without the consent of the plaintiff. He denied that he broke open the locks put by the plaintiff on the gate of the suit property. After going through the contents of the Written Statement with the help of his counsel, he stated that it is not mentioned therein that he had been in possession since 1990.

D1W2 Sh. Ratan Pal D1W2 entered into the witness box in support of the defendant no.1 and tendered his affidavit Ex. D1/B in evidence. In his examinationinchief, he has testified that he knows the defendant no.1 Sh. Devender Kumar very well and he is the exclusive owner of the plot measuring 100 sq. yards, out of Khasra CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 16 of 65 No.307/202 situated at PartII, village Mukandpur, Delhi. He further stated that the said plot was always in exclusive, uninterrupted and continuous possession of Sh. Devender Kumar since around 1990.

D1W2 was crossexamined on behalf of the plaintiff wherein he has stated that he is not a summoned witness and he knows the defendant no.1 since the last 15 years and he is on friendly terms with the defendant no.1. He further states that he has not seen the plot in suit and thereafter he again stated that he has seen the suit plot.

He has, inter alia, further stated that he has seen Sh. Devender Kumar in possession of the suit property for the last 1516 years and he does not know whether he had been in possession since 1990; he does not know whether Sh. Devender Kumar had taken possession of the suit plot on 02.11.2008 forcibly and only Sh. Devender can tell about this fact.

D2W1 Sh. Jaswant Singh D2W1 is the defendant no.2 himself who stepped into the witness box and tendered his affidavit Ex. D2/X in evidence. D2W1 also proved documents on the record in support of the case of the defendants i.e. certified copy of the receipt Ex.DW2/1, certified copy of General Power of Attorney Ex.DW2/2 & 3, certified copy of Affidavit Ex.DW2/4, certified copy of Agreement for sale Ex.DW2/5, certified copy of site plan Ex.DW2/6, certified CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 17 of 65 copy of the plaint along with affidavit Ex.DW2/7 (colly), certified copy of testimony of PW1 Sh. Jaswant Singh Ex.DW2/8 and the copy of Kalandra under Section 107/150 Cr.P.C dated 02.03.2003 Ex.DW2/9.

In his examinationinchief, D2W1 has, inter alia, testified that he categorically states that he has never handed over the possession of the suit premises to Shri Bijender Singh; the said property was in possession of his younger brother Sh. Devinder Kumar, who has forcibly entered into the said property and taken possession of the same. He further states that Shri Bijender Singh is a Property dealer of the area and he even at the time of execution of the documents was very well aware of the fact that the suit property is in illegal possession of Devinder Kumar i.e., the defendant no.1 herein.

He further states that he made stiff resistance against the illegal action of his brother but he could not get the possession of the suit premises; and that he has already filed a suit for possession of the aforesaid suit property titled as 'Jaswant Singh vs. Devinder Singh' which suit is presently pending in the Court of Shri V.K. Rai, Ld. Civil Judge, Delhi. He further states that the said suit was filed by him in the year 2007 wherein, he categorically stated that the defendant no.1 Shri Devinder Kumar has forcibly entered into the possession of his CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 18 of 65 property. He further states in his examinationinchief that in the year 2003, when he tried to take the possession of his property from his brother, a police complaint was lodged vide DD no.29A dated 02.03.2003 at Police Station Badli.

He further states that he has never handed over the possession of the suit property to the plaintiff.

D2W1 has been duly cross examined at length on behalf of the plaintiff. During the course of his cross examination, he inter alia admitted that he was in possession of the suit property at the time of sale of the property to the plaintiff and that he did not deliver the possession of the suit property to the plaintiff. He has admitted that he has mentioned in his affidavit Ex.D2/X that the property was in possession of his younger brother.

In reply to Court question regarding variance in the statement made by way of affidavit and the statement being recorded in Court about possession of the suit property, he answered that the statement made by him in his affidavit Ex.D2/X is correct and his earlier statement to the effect that he was in possession of the suit plot is incorrect.

He has admitted that he has mentioned in his plaint Ex.DW2/7 in para 9 that he had been in possession of the suit property CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 19 of 65 throughout even on the day when the order dated 19.05.2005 was passed by the Court of Sh. Jitender Kumar Mishra, Ld. Civil Judge, Delhi. He states that his allegations made in the abovesaid para 9 of the plaint Ex.DW2/7 are incorrect.

He has further admitted that the suit plot was lying vacant at the time of sale of the property to the plaintiff. He further admits that as on the day of examination, only a Khor is lying there which was constructed by the defendant no.1. He denied that the defendant no.1 took forcible possession of the property on 02.11.2008.

D2W2 Sh. Naresh Kumar (inadvertently mentioned as D2W3) - D2W2 stepped into the witnessbox and tendered his affidavit Ex.D2W2 in evidence.

D2W2 has been duly crossexamined on behalf of the plaintiff wherein he states that Jaswant Singh is his friend. In reply to a question as to where from he derived the information that possession of the suit plot was not given to the plaintiff, he states that Jaswant could not hand over the physical possession of the suit property.

He, inter alia, admits that the defendant no.2 had sold the suit plot to the plaintiff.

D2W3 Sh. Deepak Jain - This witness is Handwriting and CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 20 of 65 Fingerprint Expert. He stepped into the witnessbox and tendered his affidavit Ex.D2W3/A in evidence and his affidavit is supported with report Ex.D2W3/B, photographs Ex.D2W3/C collectively and negatives collectively Ex.D2W3/D. D2W3 has been duly cross examined on behalf of the plaintiff.

10 I have heard Ld. Counsels for both the parties and have gone through the entire record carefully including the written submissions filed by the plaintiff.

11 Considering the pleadings, the issues framed, evidence led, documents proved and arguments addressed by both the parties, the issuewise findings are as under : ISSUE Nos. 1 & 3 :

Issue no. 1 : Whether the plaintiff was in possession of the suit property and illegally dispossessed by the defendant no.1 on 02.11.2008? OPP Issue no. 3 : Whether the suit is maintainable? OPP. CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 21 of 65

Both these issues are interconnected hence, are being taken up together for determination since these will affect the determination and outcome of other issues.

12 Onus to prove both these issues is upon the plaintiff. The plaintiff has filed the present suit under Section 6 of the Specific Relief Act, 1963 on 09.01.2009 for recovery of possession alleging that the defendant no.1 broke open the lock put by the plaintiff on the gate of the suit property, illegally without the consent of the plaintiff and took its forcible possession on 02.11.2008.

13 For ready reference, the provisions of Section 6 of the Specific Relief Act, its scope and other relevant discussion on applicability of Section 6 and legal proposition propounded by the Hon'ble Superior Courts are reproduced as below :

"Section 6. Suit by person dispossessed of immovable property. (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 22 of 65 recover possession thereof,notwithstanding any other title that may be set up in such suit.

(2) No suit under this section shall be brought

(a) after the expiry of six months from the date of dispossession; or

(b) against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.

(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

Scope of Section 6 of the Specific Relief Act Provisions of Section 6 of Act are unique in itself and primarily based on equity than any other statutory right. Provision is based on principle that possession of person in an immovable property, by itself is a right recognized in law and thus person in possession of an immovable property cannot be forcibly dispossessed except according to established procedure of law. Having recognized such principle legislature have given legal strength to this principle by enacting that CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 23 of 65 if some one is forcibly dispossessed from immovable property, he can recover possession from person who dispossessed him even if person in possession was not lawful owner of immovable property and the person who dispossessed him was lawful owner. Title/ownership of immovable property has been kept aside in an action brought under Section 6 of Act and dominant consideration, permanent, exclusive and established possession of plaintiff who alleges his forcible dispossession.

Section 6 of Specific Relief Act enables a person to regain the possession of an immovable property of which he has been dispossessed without his consent and otherwise than in due course of law. The remedy available to a person dispossessed of immovable property illegally as embodied under Section 6 of the Specific Relief Act reads as under:

'If any person is dispossessed without his consent of immovable property otherwise than in due course of law (i.e. illegally), he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit'.

CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 24 of 65

14 In M.C. Chockalingam and Others v. Monicka Vasagam, 1974 (II) SCJ 30, the Hon'ble Supreme Court has been pleased to observe that all that Section 6 of the Act provides is that a person even if he is a landlord, cannot take the law into his own hands and forcibly evict a tenant after the expiry of the lease. Section 6 frowns upon forcible dispossession without recourse to law but does not at the same time declare that the possession of the evicted person is lawful possession.

Section 6 of the Specific Relief Act is based on the principle that no one can take law into his hand for taking possession, even if he may be lawful owner of immovable property. Section 6 enables a person to regain possession of immovable property of which he has been dispossessed without his consent or otherwise than in due course of law. Section 6 says if any person is dispossessed without his consent of immovable property otherwise that in due course of law, he or any person claiming through him may by suit recover possession thereof. Question of title is irrelevant in a proceeding under Section 6 of the Specific Relief Act, all what plaintiff has to show that he has been dispossessed of immovable property otherwise than in due course of law, within 6 months prior to filing suit. On the other hand, Section CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 25 of 65 5 also affirms that the person who has title can take possession by due course of law.

Juridical Possession For the purpose of Section 6 of the Specific Relief Act, 1963 the possession claimed by a person should be juridical, that is to say, possession founded on some right, although Section 6 (new) itself says nothing about the nature of the possession enjoyed by the dispossessed person. What Section 9 (old) does is that it provides a summary remedy to a person, who has without his consent been dispossessed of immovable property otherwise than in due course of law to sue for recovery of possession without establishing his title, within six months of his dispossession. (M.C. Batra v. Lakshmi Insurance Co., AIR 1956 All. 709) The word 'juridical' means possession which has been got neither by force nor by fraud. Thus, a possession cannot be said to be juridical where it is taken behind the defendant's back who does not acquiesce therein but seeks to evict him as soon as he discovers his dispossession.

Expression possession as contemplated in present Section means juridical possession. Possession to be proved for invoking provision of Section 6 of the Specific Relief Act are not to be CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 26 of 65 construed narrowly.

15 In Supdt. And Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja and others, (1979) 4 SCC 274, the Hon'ble Supreme Court has been pleased to observe that the word "possession" is not purely a legal concept but a polymorphous term which may have different meanings in different contexts. That the word "possession" implies a right and a fact. It involves power of control and intention to control.

16 Section 6 of the Specific Relief Act, 1963 says that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be dispossessed by the owner except by recourse to law. It lays down that if any person is dispossessed without his consent from immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. That a person without title but in "settled" possession - as against mere fugitive possession can get back possession if forcibly dispossessed or rather, if dispossessed otherwise than by due process of law, has been laid down CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 27 of 65 in several cases. It was so held by the Hon'ble Supreme Court in Yashwant Singh v. Jagdish Singh, AIR 1968 SC 620. The leading decision quoted in these rulings is the decision of the Bombay High Court in KK Verma v. Union of India, AIR 1954 Bom 358.

Possession Must be Absolute and Exclusive Possession by itself is not sufficient to initiate under Section 6 of the Specific Relief Act, such possession must be proved to be exclusive, permanent and independent. Thus possession of servant is actually is possession of his master and thus when the master dispossesses his servant from place than no action lies. In 'Mahabir Prasad Jain v. Ganga Singh, 1999(4) RCR (Civil) 464 (SC)' it was held that once trial Court has found against the plea of tenancy taking up by plaintiff/ respondent and if the Court had found in favour of the appellant/ defendant with regard to the said plea, the suit filed by the plaintiff/ respondent under Section 6 of the Specific Relief Act was not maintainable as he could not claim to have been in possession of the premises. Possession of a servant or agent is that of his master or principal as the case may be for all purposes and the former cannot maintain a suit against the latter on the basis of such possession (vide CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 28 of 65 Southern Roadways Ltd., Madurai v. S.M. Krishnan, 1989 (4) SCC

603). It is very unfortunate that the High Court has entirely overlooked this aspect of the matter.

On the other hand, if possession of plaintiff is proved to be exclusive then suit can be decreed as where a suit under Section 6 of the Specific Relief Act , for recovery of possession of suit premises was filed alleging that plaintiff was dispossessed by the defendant. Defendant took the defence that plaintiff was conducting business at suit premises as servant of defendant. It was held that there is voluminous evidence on record showing that plaintiff was doing business on suit premises on his own. There is no evidence that plaintiff was conducting business at suit premises as servant of defendant. It was also held that suit is maintainable even if premises was sealed by Magistrate under Section 145, Cr.P.C. Thus order of Civil Court appointing Receiver and directing him to allow plaintiff to do business as his agent was upheld.

17 Evidence of Possession Where a plaintiff sues for possession on the basis of previous possession under Section 6, mere allegations without proof of acts of actual possession do not establish his anterior possession.

Possession and DispossessionProof CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 29 of 65 In a suit for recovery of possession plaintiff prove entries in register of assessment of Municipal Committee and report lodged with police about dispossession, to show possession of house in dispute immediately before his dispossession. Such proof was held to be sufficient and relief for recovery of possession of house in dispute was granted.

18 In Nagar Palika, Jind v. Jagat Singh, Advocate, 1995(3) PLR 224(SC), the Hon'ble Supreme Court has been pleased to hold that "Once a suit has been filed by the respondent claiming to be the owner and being in possession of the land in question, how that suit can be treated as a suit based on possession and dispossession without reference to title? Section 6 of the Specific Relief Act, 1963 says that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. Section 6 is a corresponding provision to Section 9 of the Specific Relief Act, 1877, Section 9 of the earlier Act, which has been retained with some changes in the Specific Relief Act, 1963 is based on the principle that CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 30 of 65 even a trespasser is entitled to protect his possession except against a true owner and purports to protect a person in Possession from being dispossessed except in due course of law. Section 6 provides a summary remedy for a person who, being, in possession of immovable property is ousted therefrom. In such circumstances, it is possible that the person so dispossessed may pursue summary and speedy remedy through the medium of the Civil Court for restoration of possession. It has been said that this Section is a reproduction of provision of the Roman Law under which by an interdictum de vi a person wrongfully dispossessed from property could recover it by proving previous possession, without being required to prove his title. Disputed questions of title are to be decided by due process of law but the peaceful possession is to be protected from a trespasser under Section 6 of the Act without regard to the question of the origin of the possession. Such suit can be entertained and decreed only where both the plaintiff and the defendant have no title to the suit land, but as the plaintiff proves his prior possession because of that he is entitled to a decree for possession against the defendant who has dispossessed him. The plaint of such a suit must aver only previous possession and dispossession by the defendant, otherwise than in due course of law. We fail to appreciate as to how the principle of Section 6 of Specific CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 31 of 65 Relief Act, 1963 can be applied in the facts and circumstances of the present case. The respondent, who was the plaintiff, never alleged that he had been dispossessed by the appellantMunicipal Committee. On the other hand, he claimed to be the owner of the land in question and asserted that he was in possession over the same. He sought for permanent injunction restraining the appellant from interfering with his possession. Both the parties led evidences in support of their respective claims including on the question of title.

In proceedings under Section 6 of the Specific Relief Act, question as to whether possession of plaintiff was lawful or does not pale into much significance as main thrust of provision is to protect settled possession.

19 In "M. C. Chockalingam & Ors vs V. Manickavasagam & Ors AIR 1974 SC 104" , the Hon'ble Supreme Court has been pleased to hold that a tenant, on the expiry of the lease, cannot be said to continue in "lawful possession" of the property against the wishes of the landlord if such possession is not otherwise statutorily protected against even lawful eviction through court process, such as under the Rent Control Act. Section of the new Specific Relief Act does not offer such protection, but only forbids forcible dispossession CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 32 of 65 even with the best of title. Section 6 has relevance only to the wrongful act of a person, if it be by the landlord, in forcibly recovering possession of the property without recourse to law. Section 6 frowns upon forcible dispossession without recourse to law but does not at the same time declare that the possession of the evicted person is lawful possession. Lawful possession cannot be established without the concomitant existence of a lawful relationship between the landlord and the tenant. This relationship cannot be established against the consent of the landlord unless, however, in 'view of a special law, his consent becomes irrelevant. Lawful possession is not litigious possession and must have some foundation in a legal right to possess the property which cannot be equated with a temporary right to enforce recovery of the property in case a person is wrongfully or forcibly dispossessed' from it. Juridical possession is possession protected by law against wrongful dispossession but cannot per se always be equated with lawful possession.

20 Now, let us see what are the pleadings of the parties, their evidence on record and documents placed and proved by the plaintiff on record in respect of his possession.

CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 33 of 65

Pleadings of the plaintiff The plaintiff has stated in his plaint, as discussed herein above that the defendant no.1 clandestinely broke open the lock put by the plaintiff on the gate of the suit property, illegally without the consent of the plaintiff and took its forcible possession on 02.11.2008 and put his fodder cutting machine (Gandasa) in the suit property and the plaintiff was shocked to know about the nefarious act of the defendant no.1 and he requested to vacate the suit property but the requests went unheeded.

21 Pleadings of the defendant no.1 On the other hand, the defendant no.1 has stated in his Written Statement that that it is denied that the defendant no.2 has got any share in the suit premises as of now. The share, if any, was purchased by the defendant no.1 from the defendant no.2 in a family settlement.

It is further, inter alia, stated that the suit property felling to the share of the defendant no.2 was purchased by the defendant no.1 CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 34 of 65 after paying him the entire consideration. He denied that half of the portion towards eastern side fell to the share of the defendant no.1 and the remaining half portion towards western side fell to the share of the defendant no.2. It is stated that in fact the defendant no.1 has raised the construction on whole of the plot after coming into its possession in the year 1988.

It is further denied that the defendant no.1 has taken the forcible possession on 02.11.2008. It is stated that it is only because the suit premises was in possession of the defendant no.1, the defendant no.1 on 30.08.2007 gave the statement before the Court of Sh. Praveen Singh, Ld. Civil Judge, Delhi to the effect that the defendant no.1 would not sale or transfer the suit property till the pendency of the suit.

22 Pleadings of the defendant no.2 CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 35 of 65 The defendant no.2 has also filed the written statement separately denying the case of the plaintiff and stating therein that he is the sole, absolute and exclusive owner of the suit property. He presented a different picture of the suit property. It is stated in the Written Statement filed by him that defendant no.1 forcibly entered into the possession of the defendant no.2 and when the defendant no.2 came to know about the said fact filed a police complaint dated 08.09.2005 against the defendant no.1 before the police officials of Police Station Samaipur Badli.

It is further inter alia stated that the defendant no.2 agreed to sell the suit property to the plaintiff and documents were executed by him but since the defendant no.2 failed to hand over the possession, the plaintiff terminated the said agreement and took back his sale consideration amount and returned the original document executed by Shri Desh Raj in favour of the defendant. It is further stated that when the defendant no.2 requested the plaintiff to execute cancellation documents, the plaintiff on one pretext or the other stated that he has already returned the original documents to the defendant no.2 and as such he refused to execute cancellation deed.

CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 36 of 65 23 Evidence of the plaintiff no.1 on record PW1 Sh. Bijender Singh The plaintiff examined himself and tendered his affidavit Ex. PW1/A in evidence and his statement was recorded as PW1. The plaintiff also proved documents on the record in support of his case i.e. the site plan Ex. PW1/1, Agreement to sell Ex.PW1/2, General Power of Attorney Ex.PW1/3, receipt Ex.PW1/4, possession letter Ex.PW1/5, Will Ex.PW1/6 and the affidavit Ex.PW1/7.

PW1 has been duly cross examined by Counsel for the defendant. During the course of cross examination, PW1, inter alia admitted that the property measuring 100 sq. yards was partitioned between the defendant no.1 and the defendant no.2 and that the partition between the defendants was not effected in his presence.

He further inter alia stated that the suit property was purchased by the plaintiff from the defendant no.2 in the last week of December, 2002 for a sum of Rs.50,000/; and he took possession of the plot in suit after purchasing the same and that no such documents were executed in his favour with regard to handing over and taking over the possession.

He has further testified that he cannot produce any receipt/ CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 37 of 65 bill or any other document to show the expenditure incurred by him in construction of the boundary wall and purchase of gate. He stated that he is a property dealer by profession. He has admitted that he had not lodged any written complaint with the police authority with regard to forcible possession taken over by the defendant no.1 and volunteered that he went to police station only.

To a specific Court query regarding whether he had written any application which he intended to make to police, he replied 'no' and further added that he did not make any complaint to any of the police authorities with regard to forcible dispossession.

To a specific Court query regarding whether he had any document which may show his possession in the suit property prior to 02.11.2008, he replied that he is in possession of documents evidencing his possession qua the suit property prior to 02.11.2008 and he had placed those documents on record.

PW1, during the course of cross examination, further stated that he saw the documents of plot measuring 100 sq yards of the suit property which were in the name of both the defendants. He saw the papers/ documents of partition of the plot measuring 100 sq. yards wherein 50 sq. yards was given to defendant no.1 and 50 sq. yards was given to the defendant no.2.

CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 38 of 65

He further stated that on one side of the property is the residence of Sh. Devinder, defendant no.1, however, he does not remember the names of other neighbours of the suit property.

Furthermore, he has admitted that whenever a property is purchased, the entire set of documents of title of the said property is handed over to the buyer by the seller. He volunteered that in his case, the defendant no.2 had delivered photocopy of the documents of title to him and the original were retained by the defendant no.1 as he is also owner of the remaining 50 sq. yards of the plot. CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 39 of 65

He further stated that the documents of the ownership were with the defendant no.1 and that the defendant no.2 went to the defendant no.1 and brought the papers from there.

He has inter alia further stated that as on the date of his cross examination, the market value of the suit property is Rs.45 lacs. He further stated that he has good relations with Sh. Jaswant Singh and he had good relations with him in the past also.

He further testified that he knows Sh. Vinod Bhardwaj who is alive and he knows his residential address.

PW2 Sh. Praveen Kumar Sharma PW2 tendered his affidavit Ex. PW2/A in evidence and his statement was recorded as PW2. In his examinationinchief, he has stated that the suit property was purchased by the plaintiff from Sh. Jaswant Singh (defendant no.2) about 7 years ago and after purchase of the property, the defendant no.2 delivered the actual physical possession of the suit property to the plaintiff who occupied the same. After purchase of the CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 40 of 65 plot in suit, the plaintiff got constructed boundary wall on the suit property and affixed a gate. The height of the boundary wall is around 6 feet.

He further states that at the time of breaking the lock of the suit plot, he was not present and he does not know at what time the lock of the suit plot was broken.

During the course of cross examination on behalf of the defendant no.2, PW2, inter alia states that he is on friendly terms with CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 41 of 65 the plaintiff. The plaintiff never paid any money to any party towards purchase of cement, bricks and other building material for the construction of the alleged boundary wall. The plaintiff was not dispossessed by the defendant in his presence in November, 2008.

He admitted that no wall was erected around the suit property even after dispossession.

He further stated that in the first week of November, 2008, the defendant no.1 took forcible possession of the suit property.

PW3 has been cross examined on behalf of the defendants. During the course of crossexamination on behalf of the defendant no.1, PW3 stated that he is not a summoned witness and he has appeared as a witness at the instance of the plaintiff. He further states that he is the sister's son (bhanja) of the plaintiff. He further states that the suit plot was surrounded by three walls having height of four CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 42 of 65 feet having width of nine inch each.

He further states that he came to know about the dispossession of the suit plot as he was not present.

During the course of cross examination on behalf of the defendant no.2, PW3, inter alia states that the construction of the boundary wall was also not done by the plaintiff in his presence and no gate was either erected or purchased by the plaintiff in his presence.

PW4 Sh. Balwan Singh PW4 is the Document Examiner who tendered his affidavit Ex. PW4/A in evidence and his statement was recorded as PW4. In his examinationinchief, he relied upon the documents i.e., documents regarding disputed signatures Ex.PW4/A to Ex.PW4/C, the photo enlargement of comparative admitted signatures are Ex.PW4/D to H and the CD Ex.PW4/I. He has testified that his report is Ex.PW4/J. PW4 has been duly cross examined on behalf of the defendants CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 43 of 65 at length.

24 Evidence of the defendant no.1 on record D1W1 Sh. Devender Singh D1W1 is the defendant no.1 himself who stepped into witness box and tendered his affidavit Ex. D1/A in evidence. D1W1 also proved documents on the record in support of the case of the defendants i.e. certified copies of the plaint, Written Statements, evidence of Sh. Jaswant Singh as PW1 and the statement of Devender Kumar dated 30.08.2007, in suit No.176/06, which are collectively exhibited as Ex.DW1/1.

D1W1 has been duly cross examined at length on behalf of the plaintiff. During the course of his cross examination, he inter alia stated that the suit property was purchased by him in the month of March, 1992 for a sum of Rs.5,000/ and he got this fact regarding consideration amount of Rs.5,000/ recorded in his Written Statement. After going through the contents of the Written Statement with the help of his counsel, he stated that the fact of consideration amount of Rs.5,000/ is not mentioned in the Written Statement.

He further stated that he did not obtain any receipt or delivery of possession of suit property from the defendant no.2. He CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 44 of 65 volunteered that he has been in possession of the suit property for long time. He further stated that he does not remember date, month and year when the defendant no.2 handed over the possession of the suit property to him. He further volunteered that he has been in possession since 1990 of the suit property. He denied that he had not been in possession of the suit property.

He inter alia denied that he had been in possession of the suit property since 1990. He got this fact incorporated in his written statement. He denied that he took forcible possession of the suit property on 02.11.2008 unauthorizedly and without the consent of the plaintiff. He denied that he broke open the locks put by the plaintiff on the gate of the suit property. After going through the contents of the Written Statement with the help of his counsel, he stated that it is not mentioned therein that he had been in possession since 1990.

D1W2 Sh. Ratan Pal D1W2 entered into the witness box in support of the defendant no.1 and tendered his affidavit Ex. D1/B in evidence. In his examinationinchief, he has testified that he knows the defendant no.1 Sh. Devender Kumar very well and he is the exclusive owner of the plot measuring 100 sq. yards, out of Khasra No.307/202 situated at PartII, village Mukandpur, Delhi. He further stated that the said plot was always in exclusive, uninterrupted and CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 45 of 65 continuous possession of Sh. Devender Kumar since around 1990.

D1W2 was crossexamined on behalf of the plaintiff wherein he has stated that he is not a summoned witness and he knows the defendant no.1 since the last 15 years and he is on friendly terms with the defendant no.1. He further states that he has not seen the plot in suit and thereafter he again stated that he has seen the suit plot.

He has, inter alia, further stated that he has seen Sh. Devender Kumar in possession of for the last 1516 years and he does not know whether he had been in possession since 1990; he does not know whether Sh. Devender Kumar had taken possession of the suit plot on 02.11.2008 forcibly and only Sh. Devender can tell about this fact.

25 Evidence of the defendant no.2 on record D2W1 Sh. Jaswant Singh D2W1 is the defendant no.2 himself who stepped into the witness box and tendered his affidavit Ex. D2/X in evidence. D2W1 also proved documents on the record in support of the case of the defendants i.e. certified copy of the receipt Ex.DW2/1, certified copy of General Power of Attorney Ex.DW2/2 & 3, certified copy of Affidavit Ex.DW2/4, certified copy of Agreement for sale Ex.DW2/5, certified copy of site plan Ex.DW2/6, certified CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 46 of 65 copy of the plaint along with affidavit Ex.DW2/7 (colly), certified copy of testimony of PW1 Sh. Jaswant Singh Ex.DW2/8 and the copy of Kalandra under Section 107/150 Cr.P.C dated 02.03.2003 Ex.DW2/9.

In his examinationinchief, D2W1 has, inter alia, testified that he categorically states that he has never handed over the possession of the suit premises to Shri Bijender Singh; the said property was in possession of his younger brother Sh. Devinder Kumar, who has forcibly entered into the said property and taken possession of the same. He further states that Shri Bijender Singh is a Property dealer of the area and he even at the time of execution of the documents was very well aware of the fact that the suit property is in illegal possession of Devinder Kumar i.e., the defendant no.1 herein.

He further states that he made stiff resistance against the illegal action of his brother but he could not get the possession of the suit premises; and that he has already filed a suit for possession of the aforesaid suit property titled as Jaswant Singh vs. Devinder Singh which suit is presently pending in the Court of Shri V.K. Rai, Ld. Civil Judge, Delhi. He further states that the said suit was filed by him in the year 2007 wherein, he categorically stated that the defendant no.1 Shri Devinder Kumar has forcibly entered into the possession of his CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 47 of 65 property. He further states in his examinationinchief that in the year 2003, when he tried to take the possession of his property from his brother, a police complaint was lodged vide DD no.29A dated 02.03.2003 at Police Station Badli.

He further states that he has never handed over the possession of the suit property to the plaintiff.

He has admitted that he has mentioned in his plaint Ex.DW2/7 in para 9 that he had been in possession of the suit property CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 48 of 65 throughout even on the day when the order dated 19.05.2005 was passed by the Court of Sh. Jitender Kumar Mishra, Ld. Civil Judge, Delhi. He states that his allegations made in the abovesaid para 9 of the plaint Ex.DW2/7 are incorrect.

D2W2 Sh. Naresh Kumar (inadvertently mentioned as D2W3) - D2W2 stepped into the witnessbox and tendered his affidavit Ex.D2W2 in evidence.

D2W2 has been duly crossexamined on behalf of the plaintiff wherein he states that Sh. Jaswant Singh is his friend. In reply to a question as to wherefrom he derived the information that possession of the suit plot was not given to the plaintiff, he states that Sh. Jaswant could not hand over the physical possession of the suit property.

He, inter alia, admits that the defendant no.2 had sold the suit plot to the plaintiff.

CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 49 of 65

D2W3 Sh. Deepak Jain - This witness is Handwriting and Fingerprint Expert. He stepped into the witnessbox and tendered his affidavit Ex.D2W3/A in evidence and his affidavit is supported with report Ex.D2W3/B, photographs collectively Ex.D2W3/C and negatives collectively Ex.D2W3/D. D2W3 has been duly cross examined on behalf of the plaintiff.

26 Documents placed on record by the plaintiff The documents placed on record and relied upon by the plaintiff are : the site plan Ex. PW1/1, Agreement to sell Ex.PW1/2, General Power of Attorney Ex.PW1/3, receipt Ex.PW1/4, possession letter Ex.PW1/5, Will Ex.PW1/6 and the affidavit Ex.PW1/7. 27 Documents placed on record by the defendant no.1 The documents placed on record and relied upon by D1W1 in support of the case of the defendant are i.e. certified copies of the plaint, Written Statements, evidence of Sh. Jaswant Singh as PW1 and the statement of Devender Kumar dated 30.08.2007, in suit No.176/06, which are collectively exhibited as Ex.DW1/1 CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 50 of 65 28 Documents placed on record by the defendant no.2 The documents placed on record and relied upon by D2W1 in support of the case of the defendant are i.e. certified copy of the receipt Ex.DW2/1, certified copy of General Power of Attorney Ex.DW2/2 &3, certified copy of Affidavit Ex.DW2/4, certified copy of Agreement for sale Ex.DW2/5, certified copy of site plan Ex.DW2/6, certified copy of the plaint along with affidavit Ex.DW2/7 (colly), certified copy of testimony of PW1 Sh. Jaswant Singh Ex.DW2/8 and the copy of Kalandra under Section 107/150 Cr.P.C dated 02.03.2003 Ex.DW2/9.

28 Analysis of evidence and documents placed on record in the light of the provisions of Section 6 of the Specific Relief Act and law laid down in this regard :

The plaintiff has testified that after purchase of the suit property in question, the defendant no.2 delivered actual physical possession thereof and he constructed a boundary wall around the said plot and that the defendant no.1 broke open the lock put by him on the gate of the suit property and took its forcible possession on 02.11.2008. The allegations of the plaintiff do not find support from any quarter as none of his witnesses has been able to show the actual physical CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 51 of 65 possession of the plaintiff over the suit property. So far as the testimony of the plaintiff is concerned, he himself even failed to state estimates of the details of the expenditure incurred by him on the construction of the boundary wall. Furthermore, he has categorically testified during the course of crossexamination that he is not in possession of any document/ photograph or any other documentary proof to show his possession of the disputed property. He, during the course of his crossexamination, has failed to state the names of neighbours near the suit property. He further admitted that he did not make any telephone call from his mobile phone to the police control room no.100 to inform them about the alleged dispossession from the suit property by the defendant no.1. Thus, the testimony of the plaintiff has failed to inspire confidence of the Court about the possession of the plaintiff over the suit property. On the other hand, D2W1 Sh. Jaswant Singh from whom the suit property was allegedly purchased by the plaintiff, has categorically stated that he has never handed over the possession of the suit premises to Shri Bijender Singh; the said property was in possession of his younger brother Sh. Devinder Kumar, who has forcibly entered into the said property and taken possession of the same. He further states that Shri Bijender Singh is a Property dealer of the area and he even at the time of CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 52 of 65 execution of the documents was very well aware of the fact that the suit property is in illegal possession of Devinder Kumar i.e., the defendant no.1 herein. He further states that he made stiff resistance against the illegal action of his brother but he could not get the possession of the suit premises; and that he has already filed a suit for possession of the aforesaid suit property titled as Jaswant Singh vs. Devinder Singh which suit is presently pending in the Court of Shri V.K. Rai, Ld. Civil Judge, Delhi. He further states in his examination inchief that in the year 2003, when he tried to take the possession of his property from his brother, a police complaint was lodged vide DD no.29A dated 02.03.2003 at Police Station Badli. He has categorically testified that he has never handed over the possession of the suit property to the plaintiff. During the course of his cross examination on behalf of the plaintiff also, he stated that at the time of sale of the property to the plaintiff he did not deliver the possession of the suit property to the plaintiff. In reply to Court question regarding variance in the statement made by way of affidavit and the statement recorded in Court about possession of the suit property, he has answered that the statement made by him in his affidavit Ex.D2/X is correct. Thus, the testimony of the defendant no.2 sounds well and making the case CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 53 of 65 of the defendant no.2 plausible which is otherwise also supported with the documentary proofs i.e., certified copy of the plaint along with affidavit Ex.DW2/7 (colly), certified copy of testimony of PW1 Sh. Jaswant Singh Ex.DW2/8 and the copy of Kalandra under Section 107/150 Cr.P.C dated 02.03.2003 Ex.DW2/9.

30 So far as the testimonies of PW2 and PW3 are concerned, the same are also not plausible in the eyes of law as PW2 is a friend of the plaintiff whereas PW3 is his relative. Even otherwise, their ambiguous testimonies are full of lacunae losing the confidence of the Court. The material irregularities in the testimony of PW2 are being discussed herein below for better understanding. During the course of crossexamination on behalf of the defendant no.1, PW2 stated that he has appeared as a witness at the instance of the plaintiff and that plaintiff is his friend and he knows him well. He further states that at the time of breaking the lock of the suit plot, he was not present and he does not know at what time the lock of the suit plot was broken.

During the course of cross examination on behalf of the defendant no.2, PW2, inter alia states that the plaintiff never paid any money to any party towards purchase of cement, bricks and other building material for the construction of the alleged boundary wall and that the CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 54 of 65 plaintiff was not dispossessed by the defendant in his presence in November, 2008. He admitted that no wall was erected around the suit property even after dispossession.

31 So far as the testimony of PW3 is concerned, the material irregularities in the testimony of PW3 are being discussed herein below for better understanding. PW3 stated that he is not a summoned witness and he has appeared as a witness at the instance of the plaintiff. He further states that he is the sister's son (bhanja) of the plaintiff. He further states that the suit plot was surrounded by three walls having height of four feet having width of nine inch each. He further states that he came to know about the dispossession of the suit plot as he was not present. During the course of cross examination on behalf of the defendant no.2, PW3, inter alia states that the construction of the boundary wall was also not done by the plaintiff in his presence and no gate was either erected or purchased by the plaintiff in his presence. PW3 further states that in November, 2008, no such incident happened in his presence where the plaintiff was dispossessed from the suit property. He further states that he went to the suit property approximately 67 months ago. CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 55 of 65 32 So far as the documentary proofs are concerned, the plaintiff has placed on record photocopies of some title documents. The so called title documents do not show the actual possession taken over by the plaintiff. Furthermore, the defendant no.2 has categorically testified that he agreed to sell the suit property to the plaintiff and documents were executed by him but since the defendant no.2 failed to hand over the possession, the plaintiff terminated the said agreement and took back his sale consideration amount and returned the original document executed by Shri Desh Raj in favour of the defendant no.2. It is further stated that when the defendant no.2 requested the plaintiff to execute cancellation documents, the plaintiff on one pretext or the other stated that he has already returned the original documents to the defendant no.2 and as such he refused to execute cancellation deed. This clearly and amply shows that the deal regarding the suit property between the plaintiff and the defendant no.2 was cancelled but no cancellation deed was executed and it also reflects that possession was not handed over to the plaintiff. Furthermore, so far as the authenticity of document i.e., SPA Ex.DW2/3A is concerned, the same was executed in the year 2007 to take the possession from the defendant no.1 which clearly reflects that neither the defendant no.2 nor the plaintiff was in possession of the CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 56 of 65 suit property in the year 2007. The documents placed and relied upon by the plaintiff also do not convey possessory right of the plaintiff on 02.11.2008 over the suit property to any extent and negate the claim of the plaintiff in toto. It is mandate that possession by itself is not sufficient to initiate under Section 6 of the Specific Relief Act, such possession must be proved to be exclusive, permanent and independent, which the plaintiff has failed to do so in the case in hand. As observed herein above, it was held by the Hon'ble Supreme Court in Yashwant Singh v. Jagdish Singh, AIR 1968 SC 620 that Section 6 of the Specific Relief Act, 1963 says that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be dispossessed by the owner except by recourse to law. It lays down that if any person is dispossessed without his consent from immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. That a person without title but in "settled" possession - as against mere fugitive possession can get back possession if forcibly dispossessed or rather, if dispossessed otherwise than by due process of law, has been laid down in several cases. CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 57 of 65 33 It is to be noted that the plaintiff has relied upon some earlier possession, that too, without any validly executed documentary proof or even oral evidence. But the mandate of Section 6 of the Specific Relief Act is 'settled possession preceding 6 months prior to filing suit', irrespective of earlier possession. The question of earlier possession is irrelevant in a proceeding under Section 6 of the Specific Relief Act, all what plaintiff has to show that he has been dispossessed from his 'settled possession' of immovable property otherwise than in due course of law, within 6 months prior to filing suit. The plaintiff has miserably failed to establish his 'settled possession' over the suit property six months preceding to the filing of the present suit. 34 Even otherwise, it is evident from Ex. DW2/7 i.e., certified copy of the suit filed by the defendant no.2 against the defendant no.1 in the Court of Ld. Senior Civil Judge which is a suit for possession and permanent injunction dated 04.04.2007 filed on 07.04.2007 wherein the defendant no.2 prayed for decree of possession in his favour against the defendant no.1 alleging therein that the defendant no.2 visited the suit property on 22.02.2007 and he was surprised to CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 58 of 65 see that the defendant no.1 with the help of the antisocial elements of the locality, took the possession of the suit property and he also refused the entry of the defendant no.2 in the suit property. Thus, it is amply clear that the defendant no.2 was not in possession of the suit property and he himself was striving for possession of the suit property, as apparent from the above mentioned suit. So, passing of a valid title and possession in favour of the plaintiff herein from the defendant no.2 comes under serious question, and thus the contentions of the plaintiff in this regard do not inspire confidence of the Court. 35 It is relevant to quote and mention herein that the plaintiff has contended that he was dispossessed from the suit property on 02.11.2008 by the defendant no.1. Dispossession from a property is not a simple matter which can be overlooked. It attracts criminal trespass under penal law and civil remedy under the Civil law. A big doubt is hovering over the act of the plaintiff dated 02.11.2008 when he was allegedly dispossessed but he failed to get registered a case against the defendant no.1, not even in the form of a simple DD etc. He kept sleeping even at the time when his alleged right was being violated. What prevented him from taking a legal recourse qua the said dispossession? Why he kept sleeping when he was allegedly CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 59 of 65 dispossessed from the suit property? All these are mysterious questions which remained unanswered clandestinely by the plaintiff. 36 On the other hand, Ex.DW2/9 is a copy of Kalandra U/s 107/150 Cr.P.C in the form of DD No.29A dated 02.03.2003, P.S. SP Badli, regarding dispute between the defendant no.2 and his father Sh. Ram Prasad which demonstrates that there was a dispute between them over property. It has been specifically averred in DD No.29A dated 02.03.2003 that the suit property was allegedly in the name of the defendant no.2 but was under the possession of the defendant no.1 and that the defendant no.2 sold the suit property to the plaintiff about 2½ months prior to 02.03.2003 due to which the parents of the both the defendants herein, defendant no.1 and their sister annoyed and when the defendant no.2 tried to hand over possession of the suit property on 02.03.2003 to the plaintiff, the parents of the both the defendants herein and their sister interfered in the handing over of the possession of the suit property. It is further averred that the defendant no.2 was reiterating that the suit property was purchased by him out of his own income and that there is no right therein either of their parents or defendant no.1 or their sister. During the proceedings thereof, vide order dated 12.09.2003, the Ld. Special Executive Magistrate/NW has CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 60 of 65 been pleased to hold that a civil suit is pending between the parties in Civil Court and Section 107 of the Cr.P.C cannot be used in private dispute and accordingly the proceeding was dropped.

The proceedings of the Kalandra U/s 107/150 Cr.P.C in the form of DD No.29A dated 02.03.2003, P.S. SP Badli prove on record that the plaintiff was not given possession of the suit property even on 02.03.2003.

37 The plaintiff has relied upon the possession letter Ex.PW1/5 in favour of the plaintiff. However, in view of the above discussions qua Ex.DW2/9 i.e., Kalandra U/s 107/150 Cr.P.C in the form of DD No.29A dated 02.03.2003, P.S. SP Badli, Ex.PW1/5 stands contradicted. Furthermore, the plaintiff himself has failed to prove his possession, as discussed herein above and even otherwise, Ex.PW1/5 has not been signed by the plaintiff. Thus, Ex.PW1/5 does not, in any manner, prove the possession of the plaintiff over the suit property. In the present case, the plaintiff, in no manner, has been able to establish his possession over the suit property. So far as the relevancy of the so called title documents relied upon by the plaintiff is concerned, it is well settled proposition of law that the question of CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 61 of 65 title is irrelevant in a proceeding under Section 6 of the Specific Relief Act, all what plaintiff has to show that he has been dispossessed of immovable property otherwise than in due course of law, within 6 months prior to filing suit.

38 Ld. counsel for the defendant no.2 submitted that the defendant no.2 has been handed over the actual physical possession of the suit property in pursuance of the Judgment and Decree passed by the Ld. Civil Judge, Delhi, in a suit between the defendant no.1 and the defendant no.2 titled as 'Jaswant Singh vs. Devender Kumar' and the plaintiff has the knowledge of handing over of the suit property by the defendant no.1 to the defendant no.2 in view of the abovesaid Judgment. This fact also proves on record that the plaintiff was not in possession of the suit property as alleged by him in the plaint. 39 Thus, in view of the above discussions in general and taking into consideration the pleadings and minute analysis and evaluation of the entire evidence including the documents proved on record in particular, I have no hesitation to hold that the plaintiff, on the one hand, has miserably failed to establish his possession over the CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 62 of 65 suit property six months preceding to the filing of the present suit; and on the other hand, as per the mandate of Section 6 of the Specific Relief Act, has also failed to establish that he was dispossessed from the suit property otherwise than in due course of law, within six months prior to filing the suit or on 02.11.2008.

40 The plaintiff has relied upon the following Judgments :

i) M/s S.L. Associates Pvt. Ltd. vs. Karnataka Handloom Dev., 62(1996) DLT 386;and

ii) Jagmal vs. MCD, 2008(4) AD (Delhi) 365.

All these Judgments are of no help to the plaintiff being distinguishable on facts.

41 Accordingly, in view of the above detailed discussions, it is held that the plaintiff was not in possession of the suit property and was not illegally dispossessed by the defendant no.1 on 02.11.2008 and that the suit is not maintainable. These issues are accordingly decided.

CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 63 of 65 42 Issue No.2

"Whether this Court has jurisdiction to entertain the present suit? OPD1."

Onus to prove this issue is upon the defendant no.1. However, no arguments have been addressed on behalf of any party on this issue. However, taking into consideration the pleadings of the parties, the evidence adduced on record and the documents proved on record, I hold that this Court is having territorial as well as pecuniary jurisdiction to try this suit. This issue is accordingly decided. 43 In view of the above discussions and the findings returned on the issues no.1 to 3, I hold that so far as the application filed by the plaintiff under Section 151 CPC, referred to in para no.7 herein above, is concerned, the same is having no relevancy and the same is dismissed. However, so far as the application of the defendant no.2 is concerned, this Court has taken a note thereof herein above while adjudicating and deciding the issues.

44 Relief :

In view of my aforesaid discussions, the suit of the plaintiff CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 64 of 65 is dismissed. However, there is no order as to costs. Decree sheet be drawn accordingly and file be consigned to Record Room. Announced in the open Court Today on this 13th day of March, 2014, (CHANDER SHEKHAR) District & Sessions Judge (NW) Rohini Courts : Delhi CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 65 of 65 Bijender Singh Vs. Devinder Kumar & Anr.

                                                                 CS No. : 185/10



         13.03.2014

         Present:               None.

Vide separate Judgment of the even date, the suit of the plaintiff is dismissed. However, there is no order as to costs. Decree sheet be drawn accordingly and file be consigned to Record Room.

(CHANDER SHEKHAR) District & Sessions Judge (NW) Rohini Courts : Delhi CS No. 185/10 Bijender Singh Vs. Devender Kumar & Anr. Page 66 of 65

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Delhi District Court

Sh. Bijender Singh vs Sh. Devinder Kumar on 13 March, 2014