Delhi District Court
Smt. Shanti Devi Widow Of Sh. Khazan ... vs The Commissioner Of Police on 30 May, 2014
IN THE COURT OF MS. PRABH DEEP KAUR
CIVIL JUDGE05(W) THC, DELHI
Suit No. 310/10
Unique I.D. No.
1. Smt. Shanti Devi Widow of Sh. Khazan Singh,
R/o H. No. WZ8108,
Arya Samaj Road,
Uttam Nagar, New Delhi.
2. Sh. Satbir Singh S/o Late Sh. Khazan Singh,
R/o H. No. WZ8108,
Arya Samaj Road,
Uttam Nagar, New Delhi.
...........Plaintiffs
Versus
1. The Commissioner of Police,
Delhi Police, MSO, Building,
I.P. Estate, New Delhi.
2. Sh. Kewal Singh,
Deputy Commissioner of Police,
Delhi Police, Rajouri Garden,
New Delhi.
3. The Station House Officer,
PS Uttam Nagar, Police Post Matiala,
New Delhi59.
Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.1/50
4. Smt. Krishna Devi W/o Sh. Ishwar Singh,
R/o RZ21, Indra Park, Uttam Nagar,
New Delhi.
5. Sh. Ishwar Singh, ASI, Delhi Police,
R/o RZ21, Indra Park,
Uttam Nagar, New Delhi.
Also through the Commissioner of Police,
Delhi Police, MSO, Building, I.P. Estate,
New Delhi.
..........Defendants
Date of filing of the suit : 19.02.2001
Date on which, order reserved : 23.05.2014
Date of announcement : 30.05.2014
JUDGMENT
1. Plaintiff has filed the present suit for the following reliefs:
(i) To pass a decree for declaration in favour of the plaintiffs and against the defendants, thereby declaring that the plaintiffs were in lawful possession of the plots/properties No. 6 & 7 (now numbered as 306 and 307), Tara Nagar (Manakshah Garden) in the area of Village Kakrola, Palam Road, Najafgarh Road, New Delhi (hereinafter called the suit property) when the same were sealed by the police on 03rd January, 2001 on the basis of order alleged to have Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.2/50 been issued by the Deputy Commissioner of Police (West District) under Section 33 of Delhi Police Act, 1978 and they are entitled to restoration of their possession, and the defendants have no right to deny to the said legal character and right of the plaintiffs.
(ii) To pass a decree of mandatory injunction in favour of the plaintiffs and against the defendants, thereby directing and compelling the defendants to deseal the suit property and restores/deliver their possession to the plaintiffs, and perform all requisite and necessary acts for the said purpose, to prevent the breach of obligation in favour of plaintiffs.
(iii) To pass a decree of permanent injunction in favour of the plaintiffs and against the defendants thereby restraining the defendant No. 1 to 3 and their subordinate police officials from delivering possession of the suit property to defendant No. 4 and 5 on expiry of the period of order under Section 3 of the Delhi Police Act, 1978 or on desealing the said properties or otherwise, in any manner whatsoever except the plaintiffs.
(iv) To award suitable damages to the plaintiffs against the defendants, in addition to the injunctions sought, for the wrong done to them under the color of duty, upon which the plaintiffs undertake to pay deficient court fee on determination of the amount of damages by this court after inquiry, for which the plaintiffs have provisionally affixed court fee of Rs. 20/.
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(v) To award the cost of the suit in favour of the plaintiffs and against the defendants.
2. Plaintiff's Version: In the present suit, it is stated by the plaintiffs that the plaintiff No. 1 is owner of property No. 6 (now numbered as 306) Tara Nagar (Manakshah Garden) in the area of Village Kakrola, Palam Road, Najafgarh Road, New Delhi after the death of her husband Sh. Khazan Singh on 13.01.1997, by virtue of its purchase by him from Sh. Swaran Singh Duggal son of Sh. Ram Singh, R/o Janakpuri, New Delhi, who was owner of the same vide sale deed dated 22.12.1973 executed by Sh. Nand Lal and Sh. Shera sons of Kanhaiya R/o Kakrola, Delhi and she remained in its actual and physical possession till 03.01.2001, when it was sealed by the officials of police post Matiala under PS Uttam Nagar, New Delhi under the orders alleged to have been issued by defendant No. 2 under Section 33 of Delhi Police Act, 1978. The plaintiff No.2 is owner of the plot No. 7 (now numbered as 307) Tara Nagar (Manakshah Garden) in the area of Village Kakrola, Palam Road, Najafgarh Road, New Delhi by virtue of its purchase from Smt. Gulshan Kumari W/o Sh. Ved Prakash Kapoor, R/o H. NO. 15, Rampuri, Kalkaji, New Delhi through GPA, Agreement to Sell, Receipt, WILL and Affidavit dated 14.10.1998 and remained in its actual and physical possession till 03.01.2001, when it was sealed by the officials of police post Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.4/50 Matiala under PS Uttam Nagar, New Delhi under the orders alleged to have been issued by defendant No. 2 under Section 33 of Delhi Police Act, 1978. The suit property was originally owned and possessed by Sh. Nand Lal and Sh. Shera, who sold the same to Smt. Gulshan Kumari vide Sale Deed dated 09.05.1973 and to Sh. Swarn Singh Duggal vide Sale Deed Dated 22.12.1973, who further sold the said plots to Sh. Khazan Singh and plaintiff no. 2 and delivered their vacant and peaceful possession to them and the plaintiffs raised construction over the same, and they have been in peaceful and physical possession of the plots till 03.01.2001, when these were sealed by the local police. On the night of 21st December, 2000, the defendant No. 4 and 5 came with the police officials from the police post Matiala and took plaintiff No. 2 to the said police post and the plaintiff No. 2 was also threatened by them of forcible dispossession from the said plot, in case the plaintiff No. 2 failed to remove himself voluntarily from the plot within a day or two. On the next morning i.e 22.12.2000, the defendant No. 4 and 5 again came with the police officials of police post Matiala and verified the documents of title of plaintiff No. 2, and after verification of his documents, the plaintiff No. 2 was taken to the police post and cause lot of harassment and was again threatened by the defendant No. 4 and 5 with the help of police officials of police post Matiala, whose incharge Sh. Rajbir Singh was openly acting at the instance of defendant No. 5, who is Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.5/50 police officials and is posted in the Crime Branch, and has been engaged in land grabbing activities for some time past. In view of the harassment cause to plaintiff No. 2 and threats of dispossession extended to him by defendant No. 4 and 5 and the police officials of police post Matiala, the plaintiff No. 2 filed a suit for perpetual injunction on 23.12.2000. After service of the summons of the said suit, the defendant No. 5 and chowki Incharge Sh Rajbir Singh conspired and they implicated the family members of the plaintiff into two false criminal cases vide FIR No. 3/2001 under Section 447/468/471/420/506 IPC after obtaining a false complaint from defendant No. 4 and vide FIR No. 9/2001 under Sections 323/341/34 IPC, PS Uttam Nagar, Police Post Matiala, and the family members had to file applications in court for grant of bail. The defendant No. 4 and 5 also got submitted false report from chowki incharge, police post Matiala, to defendant No. 2, and got orders issued from him under Section 33 of Delhi Police Act, 1978 on 03.01.2001 and sealed the suit property of the plaintiffs on the said date, without there being any basis or ground to do so and without giving them any notice or opportunity of being heard in the matter, when they were appearing in the court in the above civil suit on 03.01.2001, and goods and belongings of the plaintiffs are still lying in the said plots/properties. The plaintiffs and their tenant were forcibly dispossessed from the above plots/properties by the police officials on 03.01.2001 and Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.6/50 properties were sealed with a view to put defendant No. 4 and 5 into possession of the said properties, on expiry of the order issued under Section 33 of the Delhi Police Act, 1978 on 02.03.2001, and the defendants No. 1 to 3 are likely to do the same. If they are not prevented from doing so. On account of sealing of plot No. 7 (307) and illegal dispossession of the tenant of plaintiff No. 2 Sh. Hari Om on 03.01.2001, he suffered a shock on account of beatings given to him, and was admitted to the hospital on 19.01.2001 and he died on 03.01.2001 and he died on 20.01.2001, and his wife has already filed a complaint to this effect with defendant No 3 on 30.01.2001. The other tenant Sh. Vijender Kumar was also taken to police post Matiala on 23.01.2001 and detain ed till 24.01.2001, and he was released on filing of bail application by him in court on 24.01.2001 and he was also reported the matter to the National Human Rights Commission, New Delhi on 27.01.2001. After the above illegal acts were committed by the defendants under the colour of duty or in excess of any such duty or authority given to them as police officials by the law, the plaintiffs sent notices dated 22.01.2001 and 27.01.2001 for desealing the suit property and for compensation and for permission to sue the police officials, under Section 33(2) and Section 140 of Delhi Police Act, 1978 but there has been no response to the said notices. The matter has also been reported to the Vigilance Cell of Delhi Police and on inquiry is being conducted by Additional SHO, PS Tilak Nagar, New Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.7/50 Delhi Sh. Meena. The plaintiffs are lawful owners of the suit property and they were in legal possession of the same till 03.01.2001 when they were divested of their possession by the police on sealing of the said properties, and the plaintiffs are entitled to the said legal character and right to the said properties, and restoration of their possession on desealing of the properties on expiry of the period of order issued under Section 33 of Delhi Police Act, 1978 by defendant No. 2 or otherwise, and the defendants have no right to deny the said character and right to the plaintiffs, and they are entitled to seek such a declaration from this court without seeking any further relief. The plaintiffs were in legal possession of the aforesaid properties till 03.01.2001 and they are entitled to their possession on expiry of the period of order issued under Section 33 of Delhi Police Act, 1978 on 02.03.2001 or otherwise. The defendant No. 1 to 3 under the colour of duty, or in excess of such duty or authority are likely to deliver possession of the aforesaid properties to defendant No. 4 and 5 to give illegal gain and advantage to them and cause wrongly loss to the plaintiffs, in breach of the obligation existing in their favour, and as such they are liable to be restrained and prevented from doing so by this court. The plaintiffs are filing the present suit, without prejudice to their rights, to claim compensation, as provided under Section 33(2) of the Delhi Police Act, 1978 and sue the concerned police officials for doing worng to the plaintiffs under the colour of the duty Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.8/50 or authority or in excess of any such duty or authority, for which notices have already been given on 27.01.2001. Since the above notices were given to the commissioner of Police, Delhi on 22.01.2001 and 27.01.2001 and the matter was brought to his notice before issue of the said notices, no notice is being given to defendants No. 1 to 3 before filing of the present suit, and it is not necessary also, having regard to the facts of the case. The plaintiffs have no other equally efficacious remedy available to them to regain possession of the properties. Hence, the present suit.
3. Defendant No. 1 to 3's Version: In the WS, defendant No. 1 to 3 have denied all the claims of the plaintiff on the following grounds:
(i) The present suit is barred by the Section 138 and 140 of Delhi Police Act.
(ii) The disputed plots were sealed by defendant No. 2, DCP. Admittedly Sh. Nand Lal and Sh. Shera were the original owners of the disputed properties as such Sh. S.S. Duggal had got absolutely no right, title or interest in the disputed properties and was not competent to sell any plot of the land to Smt. Shanti Devi. One Smt. Krishna Devi W/o Sh. Ishwar Singh, R/o RZ21, Indra Park, Uttam Nagar, New Delhi59 claims herself to be the owner and in physical possession of two plots of land bearing No. 8 and 9, measuring 600 Sq. Yards forming part of rectangle No. 13, Kila No. 20 & 21, situated Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.9/50 in the area of Village Kakrola, Colony known as Manak Shah Garden (now known as Tara Nagar), Block A, Palam Raod, New Delhi on the strength of usual documents of conveyance like agreement to sell, GPA, WILL, Indemnity bond and possession all dated 04.03.1999 (duly registered with the office of Sub Registrar, Delhi) and Sh. Gurjit Singh Kohli had purchased the said plot from Sh. Nand Lal and Sh. Kanhaiya by virtue of registered sale deed dated 10.01.1973.
(iii) On 21.12.2000.said Smt. Krishna Devi lodged a complaint with the Incharge of police Post Matiala to the effect that on the said date, at about 8 A.M. when she went to the site to get the Boundary walls of her disputed plots repaired/constructed, where one neighbor Sh. Santar Pal Yadav of Manaksha properties objected to it.
(iv) Later on 23.12. 2000, one Sh. Satbir Yadav, S/o Sh. Khazan Singh, filled a suit for perpetual injunction on the allegation interalia that he is the owner in position of a piece of land bearing plot No. 7 ( now numbered as 307), measuring 300 sq. Yards out of rectangle No. 13, Khasra No. 20 and 21, situated in area of village Kakrola, abadi known as Block A, Mand Shah Garden, Palam Road, Near Najafgarh Road, Delhi bounded on the North by plot No. 6 on the sought by plot no. A8, on the east by Palam Road and on the west by road by virtue of usual documents of conveyance like agreement to sell, receipt, will, G.P.A. And in this context, it is stated that admittedly, Shri Nand Lal and Sh. Shera were the original owner of Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.10/50 the disputed properties. As such, Shri S.S. Duggal had got absolutely no right, title of interest in the disputed property and he was accordingly not competent to sell any plot of land to Smt. Shanti Devi. It is further wrong that Shri Satbir Yadav has been owner and in possession of Plot No. 7 ( renumbered as 307) since 14.10.1998 by virtue of a sale deed dated 9.5.1978. In this regard, it is stated that the documents of title being shown and produced by plaintiff are prima facie, forged and fabricated because in most of his documents, neither date of execution has been mentioned nor the name of second witness. Some spaces in the said documents are still lying blank. Moreover, in the title documents of other inhabitants of the said locality, only Kila number is written whereas in the forged documents, being relied upon and produced by Shri Satbir Yadav, Khasra number is written/mentioned.
4. Defendant No. 4's Version: In WS, defendant No. 4 has denied all the claims of the plaintiffs on the following grounds:
(i) The plaintiffs have no locus standi to file the present suit.
(ii) The sinister motive of the plaintiffs is to get a declaration of title qua disputed property in the grab of suit for permanent injunction simplicitor and they intent to get their illegal acts legalized my misusing the platform of this court, in which nefarious attempt, they should not be allowed to succeed.
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5. Defendant No. 5's Version: In the WS, defendant No. 5 has denied all the claims of the plaintiffs on the following grounds:
(i) The plaintiffs have no locus standi to file the present suit as they have never been the owners or in possession of the suit property till date.
(ii) The plaintiffs have already filed a civil writ petition on identical grounds for seeking identical reliefs, which is pending in Hon'ble High Court of Delhi. The have also filed a suit for recovery of damages against the defendants on similar grounds which is subjudice in the court of Sh. Anil Kumar Chawla, Ld. ADJ, Delhi. Thereafter, the present proceedings are liable to be stayed/dismissed to avoid conflict in judgments and to maintain judicial propriety.
(iii) There is no privity of contract between plaintiff and defendants No. 4 and 5 as they have been unnecessarily impleaded in the captioned suit so as to exert undue pressure on defendant No. 4 for extorting money from her.
(iv) In the grab of the present proceedings, the plaintiffs intent to take advantage of their own wrongs. Their abortive attempt to forcible capture the disputed property has already been foiled and the present suit is nothing but a black mailing device.
(v) The properties b earing No. 8, 9, ABlock, Manak Shah Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.12/50 Garden, Palam Road, Village Kakrola, Delhi measuring 600 Sq. Yards which have mischievously and falsely been shown as property No. 6 and 7 by the plaintiffs have already been sealed by the plaintiffs have already been sealed by Sh. Kewal Singh, DCPC (West) vide his order dated 02.01.2000 under exercise of his powers under Section 33 of the Delhi Police Act, 1978 read with Commissioner of Police notification No. 143321560/Spl. Cell, dated 07.07.1978 and 46434708/Spl. Cell dated 05.10.1978. The plaintiffs being not in actual possession of the disputed property as on date are not entitled to any injunction.
(vi) Two criminal cases have already been registered against the plaintiff No. 2 vide FIR No. 3/2001 dated 01.01.2001 under Sections 447/468/448/471/420/506/120B IPC at PS Uttam Nagar n the complaint of defendant No. 5. Both the properties bearing No. 8 and 9 belonging to the defendant No. 5 were sealed by the DCP (West) on 02.01.2001. One Sh. Satbir Singh S/o Sh. Om Prakash, R/o Village Kakrola, Delhi witnessed the said sealing proceedings. The plaintiff No. 2 got awfully offended and enraged. His relative/henchmen, wrongfully confined, threatened and criminally assaulted said Sh. Satbir Singh and inflicted injuries on his person in furtherance of their common intention, following which, another criminal case vide FIR No. 9/2001 dated 03.01.2001 under Section 323/341/506/34 IPC was registered against one Sh. Satish (relative of plaintiff) and his associates at PS Uttam Nagar, New Delhi.
Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.13/50
(vii) The present suit is counter blast to the maiden complaint dated 21.12.200 lodged by defendant No. 5 with Police Post Matiala (under PS Uttam Nagar, New Delhi).
(viii) The suit is based on blatantly false, fabricated documents. It is the defendant No. 5, who is the actual owner and in possession of the disputed plots by virtue of documents of conveyance i.e GPA, Agreement to Sell, Will, Receipt, Possession Letter, Indemnity Bond and Affidavit, all dated 04.03.1999 executed by S. Gurjeet Singh Kohli S/o Sh. Harbans Lal Kohli R/o E206, New Rajinder Nagar, New Delhi60. As per well settled law, no injunction can be granted against an actual and rightful owner.
(ix) The suit has not been properly valued for the purposes of court fees and jurisdiction and the dominant intention of the plaintiffs is to get a decree of declaration of title over the disputed plots in the garb of the present suit for permanent injunction simplicitor.
(x) The market value of the disputed property being more than Rs. 10 lacs, this court has no pecuniary jurisdiction to entertain or try the present suit.
(xi) The suit of the plaintiffs is barred under order XXIII Rule 4 R/W Section 12 CPC, as plaintiff No. 2 earlier instituted a suit No. 893/2000 and last later withdraw the same without seeking leave/permission of the court to file a fresh suit on same cause of Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.14/50 action.
(xii) The suit is bad in law due to misjoinder of defendant No. 5 as a party because the defendant No. 5 as a party because the defendant No. 5 has nothing to do with the plots in question. A bare declaration of title without seeking consequential relief of possession is not permissible in view of statutory bar contained in proviso attached to Section 34 of the Specific Relief Act, 1963.
(xiii) Admittedly, Sh. Nand Lal and Sh. Shera were the original owners of the plots in dispute. Therefore, Sh. Swaran Singh Dugal had no right or authority to sell any of the plots of Sh. Khazan Singh on 13.01.1997 or to any other person on any other date.
(xiv) The socalled documents of conveyance i.e alleged sale deed dated 22.12.1973 and alleged documents dated 13.01.1997 as well as documents dated 14.10.1998, on the basis of which the plaintiffs have filed the present suit are sham and bogus documents having no legal sanctity.
(xv) No Succession Certificate/Probate/letters of administration was obtained by the plaintiff No. 1 in respect of alleged ownership of her late husband Sh. Khazan Singh over one of the disputed plots before filing of the present suit. (xvi) Admittedly, the land was originally owned by Sh. Nand Lal and Sh. Shera. Defendant No. 5 is posted in Special Cell of Delhi Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.15/50 Police but he has nothing to do with the plots in question, which are owned and possessed by defendant No. 4. The allegations against defendant No. 5 (i.e husband of defendant No. 4) are highly scandalous and defamatory perse. The local police has rightly registered above two cases against plaintiff No. 2 and his family members, as they had been indulging themselves into nefarious activities and had even made an supportive attempt to forcibly dislodge the defendant No. 4 from from her plots in question. It was only because of this reason that the DCP had genuine reason to believe that their existed an apprehension of breach of peace at the disputed site at the hands of plaintiff No. 2 and his accomplices/henchmen that he want on to take physical possession of both the plots in question from the defendant No. 4 and the same were accordingly sealed. The defendant No. 2 sealed the properties of the defendant No. 4 only with a view to keep her property safe and and infact in view of apprehension of breach of peace at the site at the hands of plaintiff No. 2 or his associates/goodas elements. Neither any Hari Ram nor any Vijender Kumar has been tenants or in possession in any portion of the plots in question at any point of time. In fact, the plaintiffs have attempted in vain to introduce their own men/associates as socalled tenants in the disputed plots. Defendant No. 4 is the actual owner of the plots in question and the same were taken into possession from her by the defendant No. 2 to the avert any Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.16/50 untoward incident or breach of peace at the hands of deserted person like plaintiff No. 2 and his hirelings. In fact, no cause of action ever accrued in favour of any of the plaintiffs at any point of time. (xvii) The true facts of the case are that the defendant No. 4 is the actual owner and in physical possession of the disputed plots by virtue of usual documents of conveyance like GPA, Agreement to Sell, WILL, Receipt, Possession Letter, Indemnity Bond and Affidavit all dated 04.03.1999, executed by S. Gurjeet Singh Kohli S/o Sh. Harbans Lal Kohli, R/o E206, New Rajinder Nagar, New Delhi60. Even since the date of its purchase from its erstwhile owner, the defendant No. 4 has been in continuous and uninterrupted actual physical possession of both the plots. After purchase of properties in dispute i.e plots No. 8 and 9, the defendant No. 4 got constructed two rooms, bath and latrine in the said plots and also got installed a hand pump in plot No. 8, although, the plaintiff No. 2 made an unsuccessful attempt to forcibly capture the partially built up plot of defendant No. 4, yet he could not succeed in his nefarious attempt. Otherwise, also as per registered sale deed dated 26.04.1973, Sh. Nand Lal and Sh. Shera sold plot No. 6, measuring 300 Sq. Yards, out of rectangle No. 13, Kila No. 20 situated in the area of village Kakrola in Manak Shah Garden on Palam Road, Near Najafgarh Road in blockA, New Delhi to one Sh. Bishamber Lal Sachdeva S/o Sh. Hari Chand Sachdeva R/o 9/A, New Gobind Pura, Near Krishna Nagar, Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.17/50 New Delhi. On that count also, the plea of plaintiffs that Late Sh. Khajan Singh purchased the plot No. 6, from Sh. Nand Lal and Sh. Shera stands falsified.
(xviii) The plaintiffs have mischievously shown plots No. 8 and 9 owned and possessed by defendant No. 5 as their own plots No. 6 and 7 by showing the wrong direction of the plots in the site plan filed by them. If all plots situated in a row of blockA, Manak Shah Garden, Village Kakrola, Palam Road, Najafgarh Road, New Delhi are areawise measured, the claim of the plaintiffs will automatically stand proved as bogus and spurious.
6. Replication: By way of replication, plaintiffs have denied all the claims of the defendants stating that the properties sealed by the defendants bear plot No. 6 and 7 (306 and 307) and these are legally owned by the plaintiffs and they were in legal and physical possession of the same when these were illegally sealed by the defendants to give undue advantage to defendant No. 4 and 5.
7. Issues: On the basis of pleadings and arguments of the parties, vide order dated 30.09.2003, following issues were framed: (I) Whether the plaintiffs are entitled to decree of declaration with consequential relief of injunction?OPP. Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.18/50 (II) Whether the plaintiffs are entitled to the possession of plots/properties as enumerated in para 1 of the plaint?OPP. (III) Whether the plaintiffs are entitled to damages as claimed for?OPP.
(IV) Whether the suit is not maintainable in view of Section 138 & 140 of D.P. Act?OPD.
(V) Whether there is no privity of contract between the plaintiffs and defendant No. 4 and 5?OPD.
(VI) Whether the plaint is liable to be rejected for want of cause of action?OPD.
(VII) Relief. 8. Plaintiff's Evidence:
To prove her case, plaintiff has examined the following witnesses:
(i) Sh. Satbir Yadav as PW1.
(ii) HC Ishwar Chand as PW2. (iii) Smt. Sunita Devi as PW3. (iv) Sh. Ram Narain as PW4. (v) Sh. Sylvester as PW5.
9. Plaintiffs have relied upon the following documents:
(i) True copy of khatoni and form P5 are Ex. PW1/1 and Ex. PW1/2.
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(ii) Certified copy of sale deed dated 22.12.1973 is Ex. PW1/3.
(iii) True copies of GPA, Agreement to Sell, Receipt, WILL and Affidavit dated 29th April, 1989 executed by Sh. Swaran Singh Duggal in favour of Sh. Khazan Singh are Ex. PW1/4 to Ex. PW1/8.
(iv) Certified copy of sale deed dated 09.05.1973 is Ex. PW1/9.
(v) Certified copy of GPA dated 14.10.1998 is Ex. PW1/10.
(vi) Agreement to sell, WILL, Receipt and Affidavit dated 14.10.1998 are Ex. PW1/11 to Ex. PW1/14.
(vii) True copy of plaint and stay application and affidavit are Ex. PW1/15.
(viii) Copies of notices and communications are Ex. PW1/16 to Ex. PW1/25.
(ix) Copy of the complaint register is Ex. PW2/1.
(x) Copy of letter dated 11.11.1999 is Ex. PW5/1.
(xi) Site plan is Ex. PW5/C. 10. Defendant's Evidence:
In their defence, defendants No. 1 to 3 have examined Sh. Ashok Tyagi (SHO, PS Baba Haridas Nagar) as DW 1 to 3/1 and he has relied upon the following documents:
(i) FIR No. 9/2001 of PS Uttam Nagar is Ex. DW1to3/B. Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.20/50
(ii) Order of DCP (West) dated 02.02.2001 is Ex. DW1to 3/C.
(iii) Kalandara under Section 33 of D.P. Act dated 01.01.2001 is Ex. DW1to 3/D.
(iv) Notification No. 14331560/Special Cell dated 07.07.1978 and 46434707/Special Cell dated 05.10.1978 are Ex. DW1to3/X and Ex. DW1to 3/Y.
11. Further, in their defence, defendant No. 4 to 5 have examined Sh. Ishwar Singh as DW1, Sh. Krishan Kumar, from Sub Registrar, Janakpuri as DW45/2 and Sh. Shubh Ram as DW45/3(wrongly mentioned as DW45/4). Defendants No. 4 and 5 have relied upon the following documents:
(i) Copy of GPA, Agreement to Sell, WILL, Receipt, Possession Letter, Indemnity Bond and Affidavit all dated 04.03.1999 are Ex. DW1/1 to Ex. DW1/7 (colly).
(ii) Site plan of the suit property is Ex. DW1/8.
(iii) Copies of FIR No. 3/01 and 9/01 are Ex. DW1/9 and Ex. DW1/10.
(iv) Certified copy of sale deed dated 22.12.1973 is Ex. DW1/11.
(v) Certified copy of other sale deed is Ex. DW1/12 to Ex. Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.21/50 DW1/21.
12. The final arguments have been concluded from both the sides on
13. My Issue Wise Findings: (A) For the sake of convenience, issues No. 1 to 3 are discussed together being interlinked: Issue No. 1: Whether the plaintiffs are entitled to decree of declaration with consequential relief of injunction?OPP.
Issue No. 2: Whether the plaintiffs are entitled to the possession of plots/properties as enumerated in para 1 of the plaint?OPP.
Issue No. 3: Whether the plaintiffs are entitled to damages as claimed for?OPP.
(i) The onus to prove these issues is upon the plaintiffs. To prove the same, plaintiffs have examined Sh. Satbir Yadav (plaintiff No. 2) as PW1 and during examination in chief by way of affidavit, he has reasserted the facts mentioned in the plaint. He was duly cross examined and during cross examination, he has deposed that ".........I have never seen Nand Lal or Shera i.e original owners of the property. I do not know also if the said persons are alive or not...........My father purchased plot No. 306, Tara Nagar, Kakrola, Delhi. We are four brothers (including me) and two sisters........My father died intestate. My father did not use to pay House Tax of the disputed property. The property in question was not mutated in the records of MCD either in the name of my father or in my name or in the name of my Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.22/50 mother.........The site plan of the property was drawn/drafted by my counsel Sh. B.L. Chawla. I did not get prepared any site plan of the suit property from any architect or draftsman. Sh. Chawla, Advocate, has never visited the suit property.......The earlier suit was pertaining to property no. 307. The present suit relates to two plots bearing No. 306 and 307...........My father had purchased the suit property bearing No. 306 in my present. I had accompanied him to the office of Sub Registrar, Tis Hazari Courts, Delhi at the time of Registration of title documents. I did not sign any documents of title as a marginal/attesting witness. The plot adjoining the suit property bears No. 305. Vol. We are owner and in possession of the same. There are two rooms, one shop, one garage, open courtyard, latrine, bathroom and hand pump in plot No.
305.........My father had paid the sale consideration amount in cash in respect of the plot No. 306. I had also made payment in cash qua plot No. 307. I had withdrawn some of the amounts from my bank account maintained with Canara Bank, Uttam Nagar Branch and some money was with me. I had withdrawn Rs. 20,000/22,000/ from the said bank account. Before purchasing the property from the previous owner, I had seen the entire previous documents of the title.......It is correct that myself and my mother Smt. Shanit Devi have also filed another suit for damages to the tune of Rs. 5,00,000/ against present defendants and Ld. Governor of Delhi, which is pending..........It is correct that Ex. PW1/1 does not bear any stamp. It is correct that Ex. PW1/2 has been issued on 24.03.2001. It is also correct that the disputes with respect to the suit property arose in December, 2000. It is wrong to suggest that documents Ex. PW1/4to 8 are forged and fabricated and hence, the same are unregistered........The suit property is situated in block B2, Tara Nagar.........The suit property was known as Manak Shah Garden, which name is reflected in the documents of title executed in favour of Smt. Gulshan Kumari. Vol. The colony where the suit property is situated is now known as Tara Nagar.
Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.23/50 Q. Can you produce any proof from any Gogt. Deptt. Showing that the area is known as Tara Nagar?
A. Yes, I have brought the same and the same are Ex. PW1/D1 to D4. The said documents include photocopy of newspaper cutting (2 pages), photocopy of an affidavit dated 10.11.1999 of one Sh. R.K. Yadav and photocopy of a letter dated 01.11.2009 of Tara Nagar Welfare Association.
The documents Ex. PW1/D1 and D2 were published in Nav Bharat Times. I can not tell the specific date of publication of above documents. Vol. The same were published about 34 days prior to submissions of Ex. PW1/D3 and D4 with Chief Secretary, Urban Development. I can produce the original newspaper........I did not receive any telegrame, postcard, letter or other communication on the address of Tara Nagar in respect of the suit property. It is wrong to suggest that I am mischievously intermingling some other property with the suit property. It is correct that the documents E x. PW1/D1 to D4 have not been issued by any Government Department publication. No electric meter or water meter is installed in the suit property either in my name or in the name of my mother. It is correct that I have got no official document issued by any Government Agency to show that now the plot No of the suit property are 306 and 307..........I can not say if except our documents, where khasra No. 20 and 21 are written, the remaining plots in the same row, where the suit property is situated have quilla no........The plots purchased by me and my father are situated in block B2.........I do not have any form B5 showing name of my father having been entered therein as purchaser of plot. I do not know Sh. V.K. Sood or Sh. Vijay K. Beri, whose name figure in Ex. PW1/2 nor I have met them till date........It is correct that documents Ex. PW1/4, Ex. PW1/6, Ex. PW1/7 and Ex. PW1/8 are unregistered documents. It is also correct that the documents Ex. PW1/11 and Ex. PW1/12 are also unregistered documents. It is correct that the date and column No. 2 in heading witnesses in Ex. PW1/11 and Ex. PW1/12 are blank. It is correct that a road leads to Palam via Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.24/50 Dwarka from the site of suit property.........I can not tell the current market price of the suit plots.........No Rent agreement/rent note was executed with Hari Om and Vijender whom I claim my tenants. I did not inform the house tax department/MCD that I was having the above named tenants in my property.........It is correct that the original owners of these plots were Nand Lal and Shera...........I came to know latter on regarding the complaint filed by Smt. Krishna Devi on 21.12.2000.........The photographs Ex. PW1/D1 to D9 are sufficient to show that Hari Om was my tenant. The photographs were taken on the eve of birth day of the son of Hari Om which are Ex. PW1/D1 to Ex. PW1/D5 and the photographs Ex. PW1/D6 to Ex. PW1/D8 were taken after his death.........I can not produce any document relating to disclosure of purchase of the plot in my income tax return.........It is correct that I was not present at the time of sealing proceedings as well as at the time of beating given to Hari Om allegedly by the police officials........"
(ii) Further, plaintiffs have examined Sh. Ishwar Chand (HC) as PW2 and he has proved the complaint dated 01.01.2001 and the copy of the same is Ex. PW2/1. Further, plaintiffs have examined Smt. Sunita Devi as PW3 and she was duly cross examined and during cross examination, she has deposed that "............I do not know how Satbir Yadav and his mother are owners of the disputed property as we are tenants. I do not have any rent receipt. I do not any paper/document to show that I was the tenant in the premises. Vol. We use to pay rent every month............The number of police officials came and started throwing our goods and they gave beating to my husband. It is correct that the above fact of beating of my husband was told to counsel..........."
Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.25/50
(iii) Further, plaintiffs have examined Sh. Ram Narain as PW4 and he was duly cross examined and during cross examination, he has deposed that "............Hari Om was tenant and he has since died. I am living in Paprawal Village at the distance of four kms from the disputed property and I am Mama of Satbir and I was present at the disputed property on the date of incident of sealing of the property. It was the 3rd day of January around four years back. I do not remember the year. It was around 12.00 PM noon. On the day of incident I, Sunita and her husband and her children were present. No other person was present. Vol. Satbir Yadav had moved the court on Peshi.......The police has no connection with the property. Vol. No dispute took place on the spot.........I have seen the documents of title of the plaintiffs.........No crowd gathered at the time of sealing of the suit property except for police personal. Since I was inside the house, I do not know how many police personal were there or in which vehicle they had come. I do not know their names and designation as well. Even I was injured on my leg on the day of sealing. The police did not hear my complaint. No written complaint was made to the police..........I have not given any complaint in writing subsequent to that day of incident till today to any of the Senior Police Officer............Only plot No. 306 was purchased by Sh. Khazan Singh (since deceased) in my presence.............Satbir has three other brothers, whose name are Sukhbir, Santar Pal and Satish. Plaintiff No. 2 has two sisters namely Lali and second I do not remember...........Sh. Hari Om did not expired in my presence. Vol. He expired later on, date of which I do not remember but he expired after three or four days in a hospital.....I did not lodge any complaint with any police authority regarding death of Sh. Hari Om due to alleged injuries. I have not seen the documents of title in favour of plaintiffs in respect of the disputed plot. I did not sign any Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.26/50 document of sealing proceedings undertaken by the police..........Plaintiff No. 2 is doing business in bulbs and is also President of the colony namely Tara Nagar..........Goods of Sh. Hari Om like groundnuts and grains were removed. I can not understand the site plan if shown to me. Vol. I am illiterate.........I also do not know if the names of plaintiffs figure in the voters list of Tara Nagar at the address of disputed plots. I do not know if the plaintiffs ever received any letter/post card or telegram or other communication at the address of disputed plots.....I can not tell as to from whom and for what consideration, the second plot was purchase by Sh. Satbir........."
(iv) Further, plaintiffs have examined Sh. Sylvester as PW5 and he was also duly cross examined and during cross examination, he has deposed that ".............I do not know whether any body from our department had visited the actual site after receipt of the document or not. Receipt of documents is not the proof of the genuineness and their correctness of their facts per se. I can not say whether Manak Shah Garden and Tara Nagar are different localities or not........"
(v) On the other hand, defendants No. 4 and 5 have examined Sh. Ishwar Singh as DW1 (defendant No. 5) and during examination in chief by way of affidavit, he has reasserted the facts mentioned in the WS and he was duly cross examined and during cross examination, he has deposed that "..........I am not aware of any complaint dated 23.12.2000 having been made in this regard to the Commissioner of Police. I am not aware if SI Rajbir was Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.27/50 Chowki Incharge of PP Matiala on the said date. I came to know for the first time in the first week of January, 2001 when an FIR was registered against plaintiff No. 2. I can not identify signatures of SI Rajbir........I do not know if property bearing NO. 306 and 307 is owned by plaintiff. Vol. The actual numbers of disputed plots are 8 and 9............I can not tell the names of owners in possession of said plots bearing No. 301 to
313.........The plaintiffs are in occupation of the plots situated to the left of the suit property, if one stands on the old Palam Road.........The plaintiff are on property bearing No. 10 & 11 adjacent to the suit plots which also ad measures about 600 Sq. Yards...........I do not know if the plot No. 306 was also owned by Sh. Khazan Singh. Vol. The plot No. 305 & 306 are known by number 5 and 6 and are infact owned by some one else, to the right side of the suit property. I have not placed on record any document pertaining to the title of the plot No. 5 and 6. Vol. I have placed certified copies on record obtained from Sub Registrar Delhi, according to which plot No. 6 is owned by Sh. Bishamber Lal Sachdeva and Plot No. 7 by Smt. Gulshan Kumari on the basis of registered sale deed dated 1972..........I have already placed on record certified copies of plot No. 1 to 12 Manak Shah Garden, Old Palam Road, New Delhi showing direction of the plots from north west to south east. I do not know present scenario of the property but when the property was sealed there was no light or water in the plots No. 308 and 309, which are claimed by myself to be plots No. 8 and 9. I am not aware if electric connection is there in the plot No. 308 and 309 in the name of Smt. Jeevan........I obtained the particulars of the certified copies of aforesaid documents in the year 2001. It is correct that ever since then, I was having custody of those certified copies. The witness is time and again avoiding the question as to why he did not file those documents along with WS. It is correct that Ex. DW1/P1 to EX. DW1/P7 does not bear my signatures. It is correct that these documents were not executed in my presence. It is correct that I can not comment the authenticity of the said documents..........It is correct that Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.28/50 Sh. Gurjeet Singh Kohli was previously residing in Rajender Nagar but I am not aware about his present address. I can not say whether the executant of documents namely Sh. Gujreet Singh Kohli has been suffering from mental disorder since 1990...........It is correct that no other document is in my possession to show my physical possession in the suit properties except the documents already on record.........There is no plot bearing No. 307. There is one room and a bathroom in the plot No. 8 alleged by me.........There is a shop in plot No. 9. Again said, there is one room in plot No. 9.........I can not tell as to how many trees are there in plot No. 8 and 9 as the same are sealed........I can not tell whether there is common wall between the plot No. 305 and 306. Vol. That there is common wall between the plot No. 8 and 9. It it is correct that on the left side of the sealed property there used sit the plaintiffs. I can not tell whether there are four windows in the common wall. Vol. Before the sealing there was no window. It is correct that there is one gate in existence in the back side of the sealed property. There is one shop cum room constructed on the left side built up. There is no construction on the back side plot.........I was not present at the site when the plot No. 8 and 9/6 and 7 were sealed.......I can not say as to whether I accompanied the chowki incharge along with some police officials went to the plaintiffs to dispossess them. Vol. It is a matter of record. Again said, I never visited the plaintiffs along with the chowki incharge and police personals. Again said, I never visited the chowki.........It is correct that I had received summons for the injunction suit before 02.01.2001. Ex. PW1/15 is certified copy of the said injunction suit. I can not say whether my wife was present at the spot at the time of sealing of the property on 03.01.2001........Vol. My wife told me the full story about the complaint...........It is correct that the quarrel took place between the plaintiffs and my wife. The quarrel took placer at about 0.0009.00 AM on 21.12.2000..........It is correct that my wife is no well conversant with English Language. It is correct that the complaint was drafted in English Language..........The Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.29/50 copy of the sealing order was received by us after the passing of the sealing order.........On the basis of these complaint made my wife as case was registered against the plaintiffs and family members..........I can not say whether the plaintiffs have been in possession of plot No. 305, 306 and 307 since their purchase.......I can not say whether the plot No. 9 is the same as is stated by the plaintiff to be plot No. 306..........It is correct that my wife got registered an FIR No. 3/01 against Sh. Satbir Yadav and his family members at PS Uttam Nagar. I can not say whether Sh. J.L. Meena, Inspector appeared in the court of Sh. P.S. Teji, Ld. ASJ, Delhi on 05.03.2001 and made his statement that there was no forged documents of the accused persons in that case. Vol. I was not present in the court.......I can not say whose statements were recorded on the spot at the time of sealing of the properties as I was not present there.............I have no knowledge whether Sh. Satbir Yadav made a complaint against me to the police and also against sealing which are Mark E and Mark J (Objected to)...........The sealed plots do not belongs to the plaintiffs........"
(vi) Further, defendants No. 1 to 3 have examined Sh. Ashok Tyagi, SHO, PS Baba Hari Dass Nagar as DW1 to 3/1 and he was duly cross examined and during cross examination, DW1 to 3/1 has given evasive answer and to almost each and every question, he has replied that he can not answer the question and the same is matter of record and he further deposed that "...........I was posted at PS Uttam Nagar as SHO on 28.08.2012. It is correct that the suit properties are not fall within the jurisdiction of PS Uttam Nagar. The suit properties falls within the jurisdiction of PS Dwarka North, Sector 16 but I can not say since when the suit properties falls within the jurisdiction of said PS............The district of the PS has been Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.30/50 changed to district South West but I can not say its exact date. The record pertaining to the suit properties is also with the said PS Dwarka North..........I did not survey the locality before filing my affidavit of evidence. I do not know whether the initiation numbers of the properties have been changed. I can not say whether the plots No. 6, 7, 8 and 9 have been changed to No. 306, 307, 308 and 309 respectively. Since I have not visited the property, I can not give the numbers of the properties falling on the right and left of the suit property. I can not say whether the properties numbers on the left and right side are 305 and 308. I can not tell who are in occupation of plot Nos. 305 to 309. I can not say whether all the above plots are having electricity connections. I did not receive the notices Ex. DW1to3/P1 and P2. However, my address given at point A in both the notices is correct. ....I can not produce the register pertaining to the year 2000 in which the complaints were being entered...........I have no knowledge whether the sealing proceedings were initiated at the instance of Ishwar Singh........I can not show any record as to whether any complaint was received from the residence of the colony prior to 03.01.2001. Vol. The said record has been brought by ASI Ved Prakash PS Dwarka (North), South West District. I can not say whether the complete record pertaining to the sealing proceedings dt. 03.01.2001 has been filed or not by the police. It is correct that unless there is breach of peace or riotous situation no properties are sealed by the police. The concerned documents to show that such situation had arisen on site to seal the suit property are already on record. The said document is Ex. DW1to3/D along with annexures marked in the said document which is a kalendra in said documents. It is correct that I have filed documents ExDW1to3/C, Ex. DW1to3/D along with my affidavit Ex.DW1to3/A. I do not know whether any survey or verification of the properties was carried out on the spot in receipt complaint from Smt. Krishna Devi.........I have brought the record which is now Ex. DW 1 to 3/X1(colly) (OSR)..........After going through the record, I find that there is Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.31/50 no complaint dated 23/12/2000 filed by Sh. Ram Dev Mehan against Smt. Krishna Devi is on record. The proceedings in the record brought by me commences from 02/01/2001 in the form of noting. I cannot say whether the file brought by me started from the complaint of Smt. Krishna Devi Vol. However there is a complaint of Smt. Krishana Devi on record. The complaint of Smt. Krishna Devi was received on 21.12.2000. It is correct that the complaints received at the police station are entered in the register. Vol. I cannot say whether previously the process was being adopted or not but now it is being adopted..........It is correct that the complaint dated 21/12/2000 is a computerized complaint but the date has been entered manually. (the same is exh. DW1 to 3/X)..........Apart from stamp put upon Ex DW1 to 3/X, I cannot show anything to prove that the complaint was received on 21/12/2000..........There is nothing on record to show that on 23/12/2000, Sh Satbir Singh is husband of Plaintiff has already filed suit against Smt. Krishna Devi, Sh. Ishwar Singh and the Commissioner of Police on 23/12/2000. I do not have any such record regarding the fact that in the case filed on 23/12/2000, SI Sh. Rajbir has appeared before the Court on behalf of the Commissioner of Police. There is no such record in this file to reflect that before the sealing order dated 02/01/2001, the P.S. Uttam Nagar has already received the summons regarding the said case. Besides this record brought by me today there is no other record regarding sealing proceedings of the suit property. It is correct that at the time of passing of the sealing order, I was not posted at PS Uttam Nagar, Delhi...........I had made a request to the DCP, SW to send the complete relevant record of the sealing proceedings and thereafter the record was sent, which I have brought and that is the reason I have stated that there is no other record.......It is correct that, I do not have any personal knowledge as to whether there is any other record relating to the sealing proceedings........There is no such record in file to show that Sh. Rajbir Singh and Sh. Ishwar Singh had personally visited the house of plaintiffs during the process of Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.32/50 sealing.........There is no record in my file to show that any notice was given to the parties before preparing the kalandra.........
A. As per record, DD No. 14 dated 01.01.2001, PP Matiala, SI Rajvir Singh has visited the spot.
Q. Did statements of any of residents has been recorded at the spot?
A. There is no such statement on record.
Q. Did any notice was given to the parties inviting their
claims with regard to the dispute after preparation of alleged kalandra?
A. As per the record, there is no such record available in the file.
Q. On what date sealing proceedings were conducted? A. There is no document to show that on what date the sealing proceedings were conducted.
Q. Can you tell the name of the police officials who conducted the sealing proceedings?
A. There is no such record as to who conducted the sealing proceedings.
Q. Is it correct that statements of the witnesses are recorded at the time of sealing proceedings?
A. It is correct that statements of witnesses are recorded at the time of sealing proceedings but there is no such record in the file, brought by me.
Q. Is it correct that Mark D are sealing proceedings conducted on 03.01.2001. What you have to say?
A. As there is no such record in file brought by me I can not say anything about Mark D. Q. Can you produce the record of sealing proceedings conducted on 03.01.2001?
A. No, I can not produce the record of sealing proceeding conducted on 03.01.2001. Again said, I have to check it from the record of DCP.
Q. Is it correct that the record of sealing proceeding was maintained by the police when the property seized? Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.33/50 A. Yes, it is correct that the record is being maintained. Q. Can you give any reason for non filing of sealing proceedings in the present suit?
A. Earlier the property in question was in West District and later on the same was notified in the jurisdiction of South West District and the record has also been brought from South West District, therefore the custodian of record in South West District can give appropriate answer.
Q. Is it correct that the sealing proceedings were conducted on the complaint of Smt. Krishna W/o Sh. Ishwar Singh?
A. Yes, it is correct.
I can not say anything as to the suggestion that the plaintiffs were owners and in possession of the property at the time of sealing order. It is correct that the complaint was received regarding property No. 8 and 9, Manak Shah Garden.........As per record available, there is a case in FIR No. 3/2001 under section 447/448/468/471/120 B IPC regarding the suit property i.e plot No. 8 and 9 on the complaint of Smt. Krishna Devi against the plaintiffs and the plot number as mentioned as plot No. 8 and 9........As per orders, the plots which were sealed bear No. 8 and 9 and I can not say anything as to the suggest that the actual number of the sealed plots is 6 and 7 and new number is 306 and 307.........It may be that the actual numbers of the seals plots are 6 and 7 now 306 and 307. Again said, I can not say anything regarding the same.........It is correct that the sealing order dated 02/01/2001 was passed by Sh. Kewal Singh, the then DCP West. It is correct that the said Sh. Kewal Singh the then DCP West is a party in this suit. I do not know whether the sealing order was passed on the instance of Sh. Ishwar Singh, defendant.........It is correct that no show cause notice was issued to the plaintiffs before passing of the sealing order or sealing of the properties. It is correct that no proceedings were initiated either before the Special Executive Magistrate or the Sub Divisional Magistrate before sealing of the properties. Vol. It was not required to be done U/s 33 of the DP Act..........."
Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.34/50
(vii) In the present suit, as per plaintiffs, Sh. Nand Lal and Sh. Shera were the owner of the property in Village Kakroal and from Sh. Nand Lal and Sh. Shera, Sh. Swaran Singh Duggal purchased the property by way of registered sale deed dated 22.12.1973 (Ex. PW1/3) and from Sh. Swaran Singh Duggal, Sh. Khazan Singh purchased the property vide GPA, Agreement to Sell, WILL, Receipt and Affidavit all dated 29.04.1989 (Ex. PW1/4 to Ex. PW1/8) and Sh. Khazan Singh died on 13.01.1997 and thereafter, plaintiff No. 1 became the owner of plot No. 6 (now numbered as 306), Tara Nagar (Manak Shah Garden) Village Kakrola, Palam Road, Delhi. Plaintiff No. 2 is owner of plot No. 7 (now numbered as plot No. 307) Tara Nagar (Manak Shah Garden) Village Kakrola, Palam Road, Delhi. Plaintiff No. 2 purchased the property from one Smt.. Gulshan Kumari vide GPA, Agreement to Sell, Receipt, WILL and Affidavit all dated 14.10.1998 (Ex. PW1/11 to Ex. PW1/14) and Smt. Gulshan Kumari purchased this property vide sale deed dated 09.05.1973 (Ex. PW1/9). As per plaintiffs, plaintiffs were in possession of the suit property till 03.01.2001. On 21.12.2000, defendant No. 4 and 5 came to the suit property along with some police officials and took the plaintiff No. 2 to the police station and threatened plaintiff No. 2 to vacate the property, thereafter, in view of the harassment and threats by defendant No. 4 and 5, plaintiff No. 2 filed suit on 23.12.2000 against defendant No. 4 and 5 but after service of summons, defendant No. 4 Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.35/50 and 5 conspired with police officials and filed two false FIR against plaintiffs and defendant No. 4 and 5 also submitted a false report to the defendant No. 2 and got orders under Section 33 of Delhi Police Act, 1978 on 03.01.2001 and the suit property was sealed by the police on 03.01.2001 and the said order is still in continuation. As per plaintiffs, the tenant of plaintiff No. 2 Sh. Hari Om died due to beatings given to him by the police officials and the other tenant Sh. Vijender Kumar was also detained by the police in the police post Matiala and the matter has been reported to National Human Rights Commission on 27.01.2001. As the defendants have committed illegal acts under the colour of duty and in excess of their duty, plaintiffs have filed the present suit.
(viii) On the other hand, as per defendant No. 1 to 3, the plots were sealed by the order of defendant No. 2. Admittedly, Sh. Nand Lal and Sh. Shera were originals owner of the suit property but one Smt. Krishna Devi i.e defendant No. 4 claimed that she is owner of the disputed property and the number of disputed property is plot No. 8 and 9, measuring 600 Sq. Yards forming part of rectangle number 30, Kila Number 20 & 21, Village Kakroli, Manak Shah Garden (now known as Tara Nagar) BlockA, Palam Road, Delhi vide GPA, WILL etc dated 04.03.1999, executed by one Sh. Gurjit Kohli, who purchased the same from Sh. Nand Lal and Sh. Kanhiya vide registered sale deed dated 10.01.1983. Thereafter, on 21.12.2000, Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.36/50 defendant No. 2 filed a police complaint and on 23.12.2000, plaintiff No. 2 filed suit for plot No. 7 (now numbered as 307). Due to dispute and tension, defendant No. 2 ordered to seal the disputed property and an FIR against plaintiffs was lodged as plaintiffs made abortive attempts to dislodged defendant No. 4 from her plots No. 8 and 9.
(ix) On the other hand, as per defendant No 4 and 5, the plaintiffs have already filed a suit for damages on the similar ground which is pending and there is no privity of contract between plaintiffs and defendant No. 4 and 5. Further, the disputed property is property of defendant No. 4 and 5 and they are bearing No. 8 and 9, ABlock, Manak Shah Garden, Palam Road, Village Kakrola, Delhi. Regarding sealing proceedings and FIR, they have made the similar contentions that that of defendant No. 1 to 3.
(x) Admittedly, there is a dispute as to the identity of the property as the plaintiffs claim the property to be plot No. 6 & 7 (now numbered as 306 & 307), Tara Nagar (Manak Shah Garden) Village Kakrola, Palam Road, Delhi while as per defendants the property is plot No. 8 and 9, ABlock, Manak Shah Garden, Palam Road, Village Kakrola, Delhi and admittedly, at present, the property is in possession of defendant No. 1 to 3 by way of sealing proceedings under Section 33 of Delhi Police Act, 1978.
(xi) Admittedly, originally the land in which suit property is situated, was owned by Sh. Nand Lal and Sh. Shera and plaintiff No. Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.37/50 1 and 2 and defendant No. 4 and 5 both are claiming their title commencing from Sh. Nand Lal and Sh. Shehra and the disputed property is situated in Village Kakrola, Palam Road, Delhi. Now, as per plaintiffs, the plaintiffs have filed suit on the basis of possession only and not on the basis of ownership because on the date of sealing of the disputed property on 03.01.2001, plaintiffs in physical possession of the property and they have dispossessed illegally by way of sealing proceedings because of collusion between defendant No. 4 and 5 on one hand and police officials on other hands. As per plaintiffs, defendants No. 1 to 3 have done illegal acts under colour of their duty and, therefore, plaintiffs are entitled to have the possession of their property again.
(xii) It is well settled rule of law that in civil cases the burden of proof upon the plaintiff is preponderance of probabilities i.e after considering the evidence lead by both the parties, the court has to weigh in whose favour the probabilities lie or in other words whose version seems to be more probable. Further, it is also well established legal principle that the onus to prove its case is always upon the plaintiff and the suit of the plaintiff has to stand on its own legs.
(xiii) Now, the onus is upon the plaintiffs to show that on the date of sealing i.e 03.01.2001, plaintiffs were in possession of the property. To discharge their burden plaintiff No. 2 has entered into witness box and he has deposed as PW1. Now, to prove possession, Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.38/50 plaintiffs have relied upon the documents which are Ex. PW1/1 to Ex. PW1/25. The plaintiffs have not filed any site plan of the property on which, plaintiffs are claiming their rights. Though, during cross examination there is a mention of site plan but in examination in chief, the plaintiffs have not relied upon any site plan and the counsel for defendant No. 4 and 5 submitted that as the previous counsel for defendant No. 4 and 5 has conducted the cross examination, therefore, it can not be clarified as to which site plan is being mentioned during cross examination.
(xiv) Further, PW1 has been confronted with site plan which is mark A filed by the defendant No. 4 and 5 and PW1 has denied the said site plan during cross examination.
(xv) Now, as per plaintiffs, plaintiffs have purchased the property which were plots bearing No. 6 and 7 and now numbered as 306 & 307, Manak Shah Garden now known as Tara Nagar in area of Village Kakrola, Palam Road, Najafgarh Road, Delhi. Now, the onus is upon the plaintiffs to prove that plaintiffs have purchased the plot bearing No. 6 and 7 and now they have not been number as 306 & 307 but plaintiffs have not filed any documents to show that plot No. 6 & 7 have been renewed as plot No. 306 & 307. Further, plaintiffs are required to prove that the plaintiffs were in possession of the property which was situated in Mank Shah Garden and the same is now known as Tara Nagar but during cross examination PW1 has Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.39/50 deposed that "........The suit property was known as Manak Shah Garden, which name is reflected in the documents of title executed in favour of Smt. Gulshan Kumari. Vol. The colony where the suit property is situated is now known as Tara Nagar. Q. Can you produce any proof from any Gogt. Deptt. Showing that the area is known as Tara Nagar?
A. Yes, I have brought the same and the same are Ex. PW1/D1 to D4. The said documents include photocopy of newspaper cutting (2 pages), photocopy of an affidavit dated 10.11.1999 of one Sh. R.K. Yadav and photocopy of a letter dated 01.11.2009 of Tara Nagar Welfare Association.
The documents Ex. PW1/D1 and D2 were published in Nav Bharat Times. I can not tell the specific date of publication of above documents. Vol. The same were published about 34 days prior to submissions of Ex. PW1/D3 and D4 with Chief Secretary, Urban Development. I can produce the original newspaper. It is wrong to suggest that no such notice was published in Nav Bharat Times or any other newspaper at any point of time. It is wrong to suggest that I do not have the original of above newspaper. I did not receive any telegrame, postcard, letter or other communication on the address of Tara Nagar in respect of the suit property. It is wrong to suggest that I am mischievously intermingling some other property with the suit property. It is correct that the documents E x. PW1/D1 to D4 have not been issued by any Government Department publication. No electric meter or water meter is installed in the suit property either in my name or in the name of my mother. It is correct that I have got no official document issued by any Government Agency to show that now the plot No of the suit property are 306 and 307."
(xvi) Thus, plaintiffs have no documentary proof to show that plaintiffs were in possession of the suit property till the sealing of the Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.40/50 property. Further, as per plaintiffs, the tenants of plaintiffs were in possession of the property and it is well known that water and electricity are basic amenities, so it is highly improbable that the tenants would be living there without basis amenities, therefore, the premises must be having electricity and water connections but there is no such evidence. Further, as per plaintiffs, plaintiffs have not claimed any ownership rights of the property but it is settled principle that possession can not be determined in vacuum and if title documents are available, then court must examine title documents to corroborate the averments of plaintiffs with regard to possession of property. (xvii) Further, as per plaintiff No. 1, plaintiff No. 1 has become the owner of the property through Sh. Khajan Singh and Sh. Khazan Singh has purchased the property vide documents dated 29.04.1989 executed by Sh. Swaran Singh Duggal in favour of Sh. Khazani Singh (Ex. PW1/4 to Ex. PW1/8). Now, as per these documents, the description of the property purchased by Sh. Khazan Singh is as follows: "Plot No. 306, Measuring area approx. 309 Sq. Yards, Rect. No. 13, Khasra No. 20 & 21, situated in area of Vill. Kakrola, abadi known as Tara Nagar, Palam Road, New Delhi which is bounded as under (in block B2): East: Palam Road.
West: Gali.
Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.41/50
North: Plot No. 307.
South: Plot No. 305."
Thus, on 29.04.1989, the property purchased by Sh. Khazan Singh was plot No. 306 in abadi known as Tara Nagar in block B2 while in plaint, plaintiffs have averred that Sh. Khazan Singh had purchased the plot No. 6, now known as Plot No. 306 in Manak Shah Garden now known as Tara Nagar. Thus, the averments of the plaintiffs are contrary self contradictory. (xviii) Further, as per plaintiffs, the plaintiff No. 2 purchased the property from Smt. Gulshan Kumari vide documents dated 14.10.1998 (Ex. PW1/11 to Ex. PW1/14) in which the property has been mentioned as: "Plot/Property No. 7, land measuring 300 Sq. Yards, Rectangle No. 13, out of Khasra Nos. 20 & 21, situated in the area of village Kakrola, abadi known as BlockA, Manak Shah Garden, Palam Road, Near Najafgarh Road, New Deli and bounded as under: East: Palam Road.
West: Road.
North: Plot No. A/6.
South: Plot No. A/8."
Thus, property purchased by plaintiff No. 2 is plot No. 7, in blockA, Manak Shah Garden while as per PW1, the property is situated in blockB2 and it is a major contradiction in averments of Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.42/50 plaintiff.
(xix) Further, the documents in favour of Sh. Khazan Singh dated 29.04.1989, there is mention of colony known as Tara Nagar while in the documents executed in favour of plaintiff No. 2 dated 14.10.1998, there is mention of colony as Manak Shah Garden. I am in agreement with the arguments of defendant No. 4 and 5 that how it is possible that the documents in favour of Sh. Khazan Singh dated 29.04.1989 executed 9 years prior to the execution of documents in favour of plaintiff No. 2 mentioned the plot as plot No. 306 and colony known as Tara Nagar in BlockB2 while the documents in favour of plaintiff No. 2 dated 14.10.1998 mentions the property as plot No. 7 in blockA, Manak Shah Garden. Now if as per plaintiffs, the property earlier known as Manak Shah Garden and now known as Tara Nagar, then how the documents in favour of Sh. Khazan Singh mentions the property as plot No. 306 in abadi known as Tara Nagar and if the locality was already known as Tara Nagar, then how the documents in favour of plaintiff No. 2 do not mention colony as Tara Nagar. This, creates a reasonable doubt as to the genuineness of the documents as well as to the averments of plaintiffs. (xx) Further, the documents in favour of Sh Khazan Singh mentions the property being situated in blockB2 and the documents in favour of plaintiff No. 2 mentions the plot as blockA while during cross examination, PW1 has stated that "........The suit property is Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.43/50 situated in BlockB2, Tara Nagar........The plot purchased by him and my father are situated in blockB2.........". And in the previous suit filed by the plaintiffs regarding perpetual injunction, plaintiffs have mentioned the suit property as "The plaintiff has been owner in possession of a peace of land bearing plot No. 7 (now numbered as 307), measuring 300 Sq. Yards rectangle No. 13, Khasra No. 20 & 21 situated in the area of Village Kakrola, abadi known as blockA, Manak Shah Garden, Palam Road, Near Najafgarh Road, Delhi, bounded on the North by the plot No. A6, on the South by plot No. A8, on the East by Palam Road and on the West by road, by virtue of its purchase from Shrimati Gulshan Kumari W/o Sh. Ved Prakash Kapoor, resident of House No. 15, Rampuri, Kjalkaji, New Delhi, through General Power of Attorney, Agreement to Sell, Receipt, WILL and Affidavit dated 04.10.1998."
Thus, the plaintiffs have made a completely contradiction regarding block number of the property. Further, in the previous plaint (Ex. PW1/15), plaintiffs have mentioned the date of documents executed in favour of plaintiff No. 2 by Smt. Gulshan Kumari as documents dated 14.10.1998 while the documents filed in the present suit executed by Smt. Gulshan Kumari in favour of plaintiff No. 2 (Ex. PW1/11 to Ex. PW1/14), are blank and are not having any date. (xxi) Further, even if, for the purpose of constructive possession, the documents in favour of the plaintiff No. 2 are looked Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.44/50 upon, then admittedly the documents in favor of plaintiff No. 1 Ex. PW1/11 to Ex. PW1/14) are unregistered and only are notarized. Further, as per plaintiff No. 1, plaintiff No 1 has become owner by virtue of documents in favour of Sh. Khazan Singh dated 29.04.1989 (Ex. PW1/4 to Ex. PW1/8) are unregistered and only are notarized.
In the present case, plaintiffs have relied upon the GPA etc to establish his ownership and possession, however, in the case of Suraj Lamp & Industries Pvt. Ltd Vs. State of Haryana, AIR 2009 SC 3077, Hon'ble Supreme Court of India has held that illegal and irregular process of power of attorney sales which interferes with regular transfers under deed of conveyance properly stamped, registered and recorded in register of Registration Department is to be discouraged and deprecated. Further, in L.R. Aggarwal Vs. OBR & Ors. 128 (2006) Delhi Law Times 47 (DB), it has been held by Hon'ble High Court of Delhi that transfer of immovable property can be made by the registered sale deed. Section 17(I)(b) also requires that sale of immovable property is to be made by registered documents only. Further, in G. Ram Vs. DDA AIR 2003 Delhi 120, Hon'ble Supreme Court of India has held that an agreement to sale is not a document of transfer nor by reason of execution of power of attorney, right, title or interest of an immovable property can be transferred. Such a transfer can be effected by executing a registered document as Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.45/50 envisaged under Section 54 of Transfer of Property Act read with Section 17 of Registration Act.
(xxii) The only documents on the basis of which plaintiff/applicants are claiming their right is the GPA etc however, in view of the above discussed law laid down by the Hon'ble High Court of Delhi and Hon'ble Supreme Court of India, they do not have any force.
Thus, in view of the above discussion, it is clear that the plaintiffs have completely failed to show his physical possession over the suit property and plaintiffs have made completely contradictory averments and, therefore, it can be concluded that plaintiffs have failed to prove their averments.
(xxiii) Further, the defendant No. 4 and 5 have addressed oral arguments as to ownership of the property but the plaintiffs have not filed the suit on the basis of ownership but on the averments of possession as the plaintiffs want declaration that plaintiffs were in possession of the suit property on the date of sealing i.e on 03.01.2001, therefore, the court need not to go into the question of ownership of the defendant No. 4 and 5 over the property. As the plaintiffs have failed to prove their ownership as well as possession over the disputed property, they can not claim any right over the disputed property and they are not entitled to any relief of declaration and no question of injunction against defendants arises. Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.46/50 (xxiv) Further, plaintiffs have sought the relief of damages on the ground that defendants have done illegality acts on dispossession of the plaintiffs from the disputed property by way of sealing proceedings under the colour of duty. In the present case, the plaintiffs have made allegations against defendant No. 1 to 3 and during examination, defendants No. 1 to 3 have filed documents but the documents are not clear as to who was in possession of the property at the time of sealing of the same. Further, in the whole cross examination, DW 1 to 3/1 has given evasive answers and clearly the proceedings conducted by defendant No. 1 to 3 are not in accordance with the proper procedure. Further, the defendant No. 1 to 3 have completely failed to show that sealing proceedings were conducted in accordance with the legal procedure as during cross examination, defendant No. 1 to 3 have produced the documents but the documents are not giving any picture of the sealing proceedings as to who were present at the time of sealing proceedings and in whose presence, sealing proceedings were conducted nor the documents are clear whether any site plan of the sealed property was prepared nor any list of inventory has been prepared. Clearly, it appears that defendant No. 1 to 3 have conducted sealing proceedings in very casual manner without compliance of legal procedure but this fact is not of any help to the plaintiffs as plaintiffs have clearly failed to prove their possession over the property till 03.01.2001. Therefore, Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.47/50 when the plaintiffs have failed to prove that they have any right or claim over the disputed property, then it can be said that no injury or loss has been caused to the plaintiffs.
(xxv) Further, as per plaintiffs, the police officials have beaten their tenants and matter was referred to National Human Rights Commission on 27.01.2001 but plaintiffs have not produced the copy of the report given to National Human Rights Commission nor plaintiffs have summoned any such record to support their averments that matter was reported to National Human Rights Commission. Thus, plaintiffs have completely failed to prove their averments and accordingly, they are not entitled to any damages. In view thereof, the issues No. 1 to 3 are decided in favour of the defendants and against the plaintiffs.
(B) Issue No. 4: Whether the suit is not maintainable in view of Section 138 & 140 D.P. Act?OPD.
The onus to prove this issue is upon the defendants. However, neither the defendants have lead any evidence nor addressed any arguments, therefore, the issue No. 4 is decided in favour of the plaintiffs and against the defendants.
(C) Issue No. 5: Whether there is no privity of contract between the Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.48/50 plaintiff and defendant No. 4 and 5?OPD.
The onus to prove this issue is upon the defendants. It is argued on behalf of the defendants that there is no privity of contract between plaintiffs and defendant No. 4 and 5 and defendant No. 4 and 5 have been unnecessarily dragged into the litigation while the plaintiffs have entirely denied this allegation. The defendant No. 4 and 5 have not much addressed upon this issue. Further, even if considered in the lights of discussion on findings upon issue No. 1 to 3, it is clear that the suit is not based upon the contractual obligation of the parties and admittedly parties are claiming their rights and title over the disputed property being their own property, therefore, the issue No. 5 is decided in favour of the plaintiffs and against the defendants.
(D) Issue No. 6:
Whether the plaint is liable to be rejected for want of cause of action?OPD.
The onus to prove this issue is upon the defendants. It is settled principle that plaint is rejected only under order 7 rule 11 CPC and order 7 rule 11 CPC has a limited scope and at the time of determination of bars provided under order 7 rule 11 CPC only the plaint and documents annexed therewith are looked upon and after perusing the plaint and documents, it is clear that plaintiffs have set Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.49/50 up a cause of action which has already undergone trial. Therefore, the issue No. 6 is decided in favour of the plaintiffs and against the defendants.
13. As the issues No. 1 to 3 have been decided in favour of the defendants and against the plaintiffs, the suit is liable to the dismissed. Accordingly, the suit of the plaintiffs, is dismissed as the plaintiffs have failed to prove their possession over the disputed property.
Parties to bear their own costs.
Decree sheet be prepared accordingly.
File be consigned to the record room after due compliance.
Announced in the open court on 30th Day of May, 2014. (PRABH DEEP KAUR) CIVIL JUDGE05 (WEST) THC/DELHI/30.05.2014 Suit No. 310/10 Shanti Devi & ors. Vs. Commissioner of Police & ors. Page No.50/50