Delhi District Court
Sh. Ashok Kumar vs Ajab Singh on 8 January, 2019
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE (NE)
KARKARDOOMA COURTS, DELHI
RCA No. 86/18
IN THE MATTER OF :
Sh. Ashok Kumar
S/o Sh. Late Shri Surji
R/o Asar Mohalla,
Near MCD School,
Village Sabha Pur,
Delhi110094.
....... Appellant
VERSUS
1. Ajab Singh
S/o Sh. Atar Singh
R/o Asar Mohalla,
Village Sabha Pur,
Delhi110094
2. East Delhi Municipal Corporation
Through its Commissioner
Patparganj, Delhi110092.
3. Raj Karan
4. Braham Singh
5. Kishan
6. Raj Pal
7. Vikram Singh
All sons late Surji
RCA No. 86/18
Ashok Kumar V/s Ajab Singh & Ors. page 1 of 9
Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
r/o Asar Mohalla
Near MCD School
Village Sabhapur,
Delhi94
8. Smt. Ram Wati
W/o Sh. Raghubir Singh
R/o Asar Mohalla,
Near MCD School,
Village Sabha Pur,
Delhi110094.
..... Respondents
Date of Institution of Appeal : 12.10.2018
Arguments heard on : 08.01.2019
Date of Judgment/Order : 08.01.2019
Decision : Appeal is dismissed with cost
JUDGMENT
1. The present appeal impugns the judgment and decree dated 31.08.2018 passed by Ld. JSCC/ASCJ/G Judge( NE), Karkardooma Courts in CS No. 4957/15 whereby the suit for permanent injunction filed by the plaintiff / respondent No. 1 against the defendants / appellant has been decreed.
(The parties are hereinafter being referred to by their respective status before the trial court).
2. The brief and relevant facts in the background of which the present suit was filed by the plaintiff is reproduced from the impugned judgment as follows: Plaintiff's Case:
(i) The suit for permanent injunction has been filed on the basis of the RCA No. 86/18 Ashok Kumar V/s Ajab Singh & Ors. page 2 of 9 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
facts mentioned below :
(ii) The plaintiff is stated to be the owner of property out of Khasra no. 562 measuring 350 sq. yards situated at abadi of Village Sabhapur, Delhi 110094 surrounded by boundary wall. It is stated that the plaintiff is in possession of the suit property.
(iii) According to the plaintiff, the suit property was purchased from its erstwhile owner Smt. Ramwati W/o Sh. Raghubir Singh vide sale documents dated 28.08.2010 for a lawful consideration.
(iv) It is stated that the suit property was initially owned by the husband of Ramwati (defendant no. 8) and it is his name which has been mentioned in the revenue record. After his demise the property was sold to the plaintiff by wife of Raghubir.
(v) The plaintiff has alleged that the defendant no. 2 to 7 are the neighbours of the plaintiff who have no right, title or interest over the suit property but with the intention to grab the suit property brought building material at the site. It is alleged that the defendants have threatened the plaintiff on 06.11.2013 to grab the suit property from him forcibly and to raise construction over the suit property.
(vi) Upon this, the plaintiff made a complaint to the local police but they refused to receive the complaint and advised him to approach the MCD or Civil Court. Therefore, a written complaint was made to the MCD on 07.11.2013.
(vii) The plaintiff has sought a decree of permanent injunction against the defendants to restrain them from raising any illegal and unauthorized construction on the suit property and from forcibly dispossessing the RCA No. 86/18 Ashok Kumar V/s Ajab Singh & Ors. page 3 of 9 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
plaintiff from the suit property.
DEFENDANTS' CASE :
(viii) Upon service, the defendants 1, 2, 3, 4, 5, 6 & 8 appeared and stated that the property is not identifiable. The plaintiff was therefore, asked to file fresh site plan, which was filed on 16.01.2014.
(ix) In the written statement of defendant no. 2 to 7, it was objected by the defendants that the jurisdiction of this Court is barred under Section 185 of Delhi Land Reforms Act. It was stated that the defendants 2 to 7 are owners of and in possession of the land in Khasra no. 563 to 566. It was stated that the Khasra no. 562 belongs to Sh. Giani and Raghubir Singh both sons of Munshi Ram and after their death, the land of Khasra no. 562 and 470 came in possession of their respective legal heirs.
(x) The defendants have further stated that the 3 biswas of the land has been acquired and only 1 bigha and 10 biswas is left remaining.
(xi) The defendants stated that the plaintiff has not mentioned any fact regarding the partition between the two brothers Raghubir and Giani. It is submitted that the plaintiff is not in possession of the Khasra no. 562 and that the site plan is not correct.
(xii) Defendant no. 2 to 6 and 8 were proceeded exparte vide order dated 15.04.2017.
ISSUES:
(i) Whether the plaintiff is entitled to the relief of permanent injunction ? OPP.
(ii) Whether the present suit is bad for nonjoinder of necessary party ? OPD no. 2 to 7.
RCA No. 86/18Ashok Kumar V/s Ajab Singh & Ors. page 4 of 9 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
(iii) Relief.
3. The appellant has preferred the instant appeal on the ground that the impugned judgment and decree dated 31.08.2018 is not sustainable in law and facts and is passed without application of judicial mind. It is further contended that the impugned judgment and decree is not passed on the basis of the admitted and proved facts and the judgment suffers from illegality and infirmity. As mentioned, Ld. Trial Court failed to appreciate the correct facts. It is further mentioned that Ld. Trial court has not appreciated the fact that the suit property is a vacant land and no injunction can be granted in respect of vacant land. As contended, Ld. Trial Court failed to appreciate the facts in proper perspective and reached to wrong conclusion; Ld. Trial Judge has not applied his mind and disposed off the suit without following due process of law and considering the relevant aspects. This appeal is filed praying to set aside the impugned judgment and decree.
4. The respondents did not file reply to the appeal but supported the impugned judgment and decree and prayed to dismiss the appeal with cost.
5. I have heard the Ld. Counsel for the appellant and respondents and gone through the trial court records. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for partition, this suit is to be decided on the basis of preponderance of probabilities. As held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, "A civil case is decided on balance of RCA No. 86/18 Ashok Kumar V/s Ajab Singh & Ors. page 5 of 9 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
6. Section 101 of the Evidence Act, 1872 defines " burden of proof"
and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. Further, Section 58 of the Indian Evidence Act contained that no fact need RCA No. 86/18 Ashok Kumar V/s Ajab Singh & Ors. page 6 of 9 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings.
7. In the simplicitor suit for permanent injunction, the right, title and interest of the parties cannot be adjudicated and suit has been filed merely to protect the possession of the plaintiff. From the records, there is nothing to show that defendants are owner nor in possession of the suit property and the plaintiff on the other hand, by way of khatoni mark A, possession letter and other documents proved its possession. The defendants cannot be permitted to take law in their hands and throw out the plaintiff from the suit property forcibly without following due process of law. As the defendant failed to rebut the contentions and claim of the plaintiff was duly proved, the decree appears to be passed correctly. Merely oral and bald averments is not sufficient to prove the coownership by the defendants. This court finds itself in consonance with the findings of the Ld. Trial Court and the impugned judgment and decree does not warrant for any interference. The Ld. Trial Court rightly reached to the conclusion and decided the issues on the basis of materials on record and evidence of the parties and this court does not find any ground to interfere with the findings of Ld. Trial Judge. The findings of the Ld. Trial Judge is well explained in the impugned judgment and the same does not require any interference. The findings of Ld. Trial Judge does not appear to suffer from any illegality or infirmity. There is nothing on record to come to the conclusion that the appellant is the coowner of the suit property.
RCA No. 86/18Ashok Kumar V/s Ajab Singh & Ors. page 7 of 9 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
8. The pleadings of the parties and evidence on record reveals that the appellant / defendant categorically failed to prove the coownership of the suit property in view of the contention in the pleadings. The ratio of judgment reported as 1982 (1) RCR 637 is squarely applicable in the facts of this case. Further, as held in Subhra Mukharjee Vs. Bharat Coking Coal Ltd., AIR 2000 SC 1203, the party which makes the allegation must prove it. The appellant has failed to produce any oral or documentary evidence to prove the contentions. Undisputedly, the burden lies on the appellants to establish such facts.
9. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title. The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of RCA No. 86/18 Ashok Kumar V/s Ajab Singh & Ors. page 8 of 9 Sh. G. N. Pandey, Additional District Judge (NE), Karkardooma Courts Delhi.
the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this Court the plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
10. From the testimony of the witnesses, pleadings of the parties and the documents on record, it is established that the Ld. Trial Court has examined the issues framed in the suit in proper perspective. Mere oral averments by the appellant is not sufficient to grant relief in his favour. This court does not find any illegality or infirmity in the impugned judgment and decree dated 31.08.2018 which is well reasoned / correct appreciation of facts and in accordance with the provisions of law. The impugned judgment is therefore entitled to be upheld. There is no merit or substance in the appeal which is liable to be dismissed. The appeal is therefore dismissed with costs.
11. Decree sheet be drawn accordingly.
12. Trial Court records be sent back along with copy of this judgment.
13. Appeal file be consigned to record room.
Gorakh Digitally signed by
Gorakh Nath Pandey
Location: Court No.69,
Announced in open Court
on this 08th day of January, 2019
Nath North East District,
Karkardooma Court,
Delhi
Pandey Date: 2019.01.09
16:56:00 +0530
G. N. Pandey
Addl. District Judge (NE)
Karkardooma Courts, Delhi
RCA No. 86/18
Ashok Kumar V/s Ajab Singh & Ors. page 9 of 9