Delhi District Court
Shiv Kumar Sharma vs Devender on 26 September, 2024
IN THE COURT OF SH. PRITU RAJ : CIVIL JUDGE : NORTH
DISTRICT, ROHINI COURTS : DELHI
CS SCJ 35739-16
CNR No. -DLNT03-000076-2010
In reference:
SHIV KUMAR SHARMA (since deceased through LRs)
A. Smt. Vijaylaxmi
w/o Lt. Shri Shiv Kumar Sharma
r/o 135, Near Shiv Mandir,
Holambi Khurd, North West Delhi.
B. Ms. Meenakshi
w/o Shri Harinder Kaushik
d/o Lt. Shri Shiv Kumar Sharma
r/o H. No. WZ-153, Pandit Mohalla,
Village Dasghara, PO Pusa,
New Delhi.
C. Nishi Raj Sharma
s/o Lt. Shri Shiv Kumar Sharma
r/o 135, Near Shiv Mandir,
Holambi Khurd, North West Delhi.
D. Ms. Preeti Chaya
w/o Shri Som Datt
d/o Lt. Shri Shiv Kumar Sharma
VPO Ladpur, Ladpur,
North West Delhi, Delhi-110081 ............. Plaintiffs
VERSUS
1. DEVENDER
s/o Lt. Shri Raghu Nath Singh
CS SCJ 35739-16 SHIV KUMAR SHARMA Vs. DEVENDER Page No. 1 of 20
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r/o Village Holambi Khurd,
In front of Bhaiyan Dada Mandir,
Delhi-110082.
2. SH. NEMI CHAND
s/o Lt. Shri Risal Singh
r/o H. No. 7, I floor,
Samaspur Jagir,
Pandav Nagar,
Delhi-110091.
3. JAGDISH (since deceased)
3a. Asha Rani
w/o Shri Jagdish Chandra Sharma
3b. Shri Vikash
s/o Shri Jagdish Chandra Sharma
3c. Shri Akash (since deceased through LRs)
s/o Shri Jagdish Chandra Sharma
3c (i) Smt. Lalita Sharma
w/o Shri Akash
3c (ii) Shri Suhan Sharma (through his natural
guardian Smt. Lalita Sharma)
s/o Shri Akash
3d. Smt. Pramilla
d/o Lt. Shri Jagdish Chandra Sharma
4. SHRI BHAGWAN
s/o Dilip
r/o Village Holambi Khurd,
In front of Bhaiyan Dada Mandir,
Delhi-110082.
5. AMIT SHARMA
s/o Lt. Shri Satya Narayan Sharma
CS SCJ 35739-16 SHIV KUMAR SHARMA Vs. DEVENDER Page No. 2 of 20
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PRITU RAJ PRITU RAJ
Date: 2024.09.26
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r/o Balti Factory,
Village Kushak no. 2
PO Khadipur,
Delhi-36.
6. JAI PRAKASH SHARMA
s/o Lt. Shri Dalip Singh
r/o H. No. 51, Sayog Apartment
Mayur Vihar, Phase-I,
Delhi. .........Defendants
Date of Institution : 02.01.2010
Date of reservation of Judgment : 23.08.2024
Date of Judgment : 26.09.2024
JUDGMENT
1. The present suit had been filed by the plaintiff against the defendant/s seeking the relief of declaration and permanent injunction.
2. The suit had been instituted by the Plaintiff in the year 2010. During the course of trial, the Plaintiff expired and his LRs were impleaded vide order dated 14.12.2021. For the sake of convenience, the term 'Plaintiff' would be deemed to include LRs of Plaintiff.
3. Further, the suit was originally instituted against five Defendants namely Devender, Nemi Chand, Jagdish, Shri Bhagwan and Amit Sharma. Jai Prakash Sharma was impleaded as Defendant no. 6 vide order dated 29.09.2010. During the course of trial, Def. no. 3 namely CS SCJ 35739-16 SHIV KUMAR SHARMA Vs. DEVENDER Page No. 3 of 20 PRITU Digitally signed by PRITU RAJ RAJ Date: 2024.09.26 16:20:43 +05'30' Jagdish expired and his LRs were impleaded vide order dated 09.05.2013. Further, as one of the LRs of D-3 namely Akash expired during trial, his LRs were brought on record vide order dated 28.03.2024. For the sake of convenience, the term 'D-3' would include LRs of Def. no. 3.
FACTS AS PER THE PLAINT :-
4. The case of the plaintiff as per plaint in brief is that one Ramji Lal had four sons namely Siri Chand, Dilip Singh, Jage Ram and Kanha Ram.
Mr. Siri Chand had only one daughter and no son whereas Dilip Singh had three sons namely Jagdish, Jaiprakash and Siripahgwan. Jage Ram had two sons Risal Chand and Raghunath Singh. Risal Chand had five sons namely Shiv Kumar (Plaintiff herein), Satyanarayan (since deceased), Siriniwas, Nemi Chand and Ramesh whereas Raghunath Singh had two sons namely Ram Chander and Devender. The fourth son namely Kanha Ram had one son namely Devi Ram. Plaintiff claims that the immovable properties owned by the four sons of Lt. Shri Ramji Lal was inherited and divided among themselves.
5. It is the case of the plaintiff that Shri Siri Chand s/o Ramjilal was the absolute owner of two plots of land measuring 700 sq yds located in khasra no. 287, 288 and 114 while also having a house built on plot measuring 200 sq yds in old abadi area, Village Holambi Khurd, Delhi. Plaintiff claims that his father Risal Chand had settled in Madhya Pradesh with his family but the plaintiff was brought back to the village by Siri Chand, raised him and got him married. The Plaintiff in turn, maintained and looked after Siri Chand while also CS SCJ 35739-16 SHIV KUMAR SHARMA Vs. DEVENDER Page No. 4 of 20 PRITU Digitally signed by PRITU RAJ RAJ Date: 2024.09.26 16:20:56 +05'30' getting him treated for throat cancer, who, being pleased with his services, executed a will dated 25.08.1977 bequeathing all the rights and title in his immovable properties, i.e., house on plot measuring 400 sq yds in old abadi Deh of village Holambi Khurd and two plots, adjacent to each other, forming part of Kh. no. 287, 288 (375 sq yds) and Kh. no. 114 (384 sq yds) (total measuring 759 sq yds) in extended lal dora, village Holambi Khurd, Delhi. Subsequent to the death of Shri Siri Chand, Plaintiff claims to have become the absolute owner of these properties by the aforesaid will.
6. Plaintiff further states that Siri Chand and his brother Dilip were jointly allotted two residential plots located in Kh. no. 287 (0-8) and 288 (0-7), during consolidation proceedings, in lieu of the agricultural land given up by them and the two plots were partitioned among the brothers by metes and bounds with them constructing boundary walls over their respective shares. Plaintiff claims that after Srichand's death, he continued to be in possession of plot of land bearing Kh. No. 114 (0-07) by virtue of the will.
7. It is further claimed that a case no. 118RA/84 was filed by Gaon Sabha against Lt. Shri Shrichand, alleging encroachment, and notice of the said case was served upon the Plaintiff. The suit was ultimately dismissed vide order dated 05.11.1985 as it was time barred and no appeal was preferred by the Gaon Sabha. Hence, the plaintiff alleges to have become owner of the plot in Kh. no. 114 (0-07) on the basis of unchallenged will and continuous peaceful possession while also claiming ownership and possession over Kh. no. 287 (0-8) and 288 (0-
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7) through unchallenged will and continuous peaceful possession.
8. Plaintiff further claims that by order dated 08.04.1992, Raghunath Singh and Risal Chand got the mutation of plot in Kh. no. 287 and 288 done in their favour fraudulently and the said mutation was challenged by appeal dated 08.12.1997 before the Dy. Commissioner, North West, Kanjhawala, Delhi. During the pendency of said appeal, D-2 and father of D-5, along with Srinivas Sharma and Ramesh, filed affidavits admitting the Plaintiffs to be the owner of plots in Kh. no. 287 (0-8) and 288 (0-7). However, the said appeal was dismissed vide. order dated 24.07.2007 on account of it being time barred and the said order has been challenged through appeal no. 210/2007 which is pending adjudication.
9. It is the case of the plaintiff that notwithstanding the order dated 08.04.1992, he is the absolute owner and in possession of plot in Kh. no. 287 and 288 and he has further claimed that in 1987, he got a boundary wall constructed around the plots while putting up a common iron gate on land / plot located in Kh. no. 114. However, on 07.11.2009, the plaintiff found the lock on the gate brocken and replaced by new locks. Complaint and reminders were made to the DCP but no action was taken. On 08.12.2009, the plaintiff removed the illegal locks and replaced them with his own locks. However, the Defendants have been threatening to demolish the boundary wall and dispose off / alienate plots of land which is illegal as the plaintiff is owner on the basis of will as well as adverse possession. Hence, the present suit.
CS SCJ 35739-16 SHIV KUMAR SHARMA Vs. DEVENDER Page No. 6 of 20
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RAJ
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PRAYER:-
10.Plaintiff has made the following prayer:-
(a) Pass a decree of declaration declaring the plaintiff to be absolute owner of plot in Kh. no. 287 (0-8) and 288 (0-7) (375 sq yds) located in extended lal dora Village Holambi Khurd, Delhi and that the Defendants or anyone claiming through them have no right, title and interest in the abovesaid plot of land.
(b) That a decree of permanent injunction be passed in favour of the Plaintiffs and against the Defendants or anyone claiming through them restraining them from interferring in any manner whatsoever in the peaceful possession and enjoyment of two plots adjacent to each other forming part of Kh. no. 287, 288 (375 sq yds) in Kh. no. 114 (384 sq yds) total measuring 759 sq yds in extended lal dora Village Holambi Khurd, Delhi
(c) To pass a further decree of permanent injunction restraining the Defendants or anyone claiming through them from creating any third party interest / rights in the abovesaid plots of land without having any legal right to do so and only on the basis of illegal mutation in their favour.
(d) Costs.
(e) Any other relief.
DEFENCE :-
11.In the present case, the defendants were duly served. Separate WS were filed by the Defendants.
ISSUES:-
12.Vide order dated 18.04.2011, the following issues were framed:
I) Whether the plaintiff has assessed the valuation of the suit as per Suit Valuation Act and has filed appropriate Court Fees as per the Court Fees CS SCJ 35739-16 SHIV KUMAR SHARMA Vs. DEVENDER Page No. 7 of 20 PRITU Digitally signed by PRITU RAJ RAJ Date: 2024.09.26 16:21:42 +05'30' Act and if yes, what are its consequences.
II) Whether the plaintiff is entitled for decree of declaration, as prayed for? OPP.
III) Whether the plaintiff is entitled for the decree of permanent injuction restraining the defendant from interfering in the peaceful enjoyment of the possession and ownership of the property by the plaintiff with regard to two plots forming part of Khasra No. 287, 288 and 114 total measuring 759 sq. yards? OPP.
IV) Whether the plaintiff is entitled for permanent injunction restraining the defendant from selling, transferring, alienating, mortgage, or creating third party interest with regard to the suit property in question? OPP.
V) Any other relief.
DOCUMENTS & EVIDENCE:-
13.In support of his case, the plaintiff examined himself as PW-1 and relied upon the documents:
(a) Mark PW1/1 being the will dated 25.08.1977 .
(b)Ex. PW1/2 being the site plan.
(c) Ex.PW1/3 (colly) being certified copies of the report of halka patwari, statement of Hoshiyar Singh, statement of Deponent and reply of Deponent before SDM.
(d) Ex.PW1/4 being copy of order passed by SDM.
(e) Mark PW1/5 being copy of order dated 08.04.1992.
(f) Mark PW1/6 being copy of appeal dated 08.12.1997.
(g) Mark PW1/7 (colly) being affidavits of Nami Chand, Satya Narayan, Shriniwas and Ramesh.
(h) Mark PW1/8 being order dated 24.07.2007 dismissing the appeal.
(i) Ex. PW1/9 being appeal No. 210/2007.
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(j) Ex.PW1/10 being copy of complaint dated 10.11.2009.
(k) Ex.PW1/11 being reminder dated 01.12.2009.
(l) Ex.PW1/12 being photographs and newspaper Nav Bharat Times dated 08.12.2009.
(m) Mark PW1/13 being complaint to police dated 10.01.2007.
14. This witness was cross-examined and discharged.
15. PW Shri Bhagwan tendered his evidence affidavit as PW2/A, was cross-examined and discharged. PW Shri Dharampal tendered his evidence affidavit as PW3/A, was cross-examined and discharged. PE stood closed on 30.11.2017.
16. In defence, Defendant No. 1 examined himself by way of affidavit as DW-1, was cross examined and discharged. DE was closed on 27.02.2023.
FINAL ARGUMENTS:-
17. Despite multiple opportunities, the plaintiff did not lead any final arguments. Accordingly, his right to lead final argument was closed.
Final arguments have been heard at length on behalf of the defendants.
FINDINGS OF THE COURT:-
18.Before embarking to decide the present case, it would be appropriate to reiterate the burden of proof required to be discharged in civil proceedings. As laid down in Postgraduate Institute of Medical Education and Research v. Jaspal Singh, (2009) 7 SCC 330, the burden which ought to be discharged in civil proceedings in not as CS SCJ 35739-16 SHIV KUMAR SHARMA Vs. DEVENDER Page No. 9 of 20 PRITU Digitally signed by PRITU RAJ RAJ 16:22:09 +05'30' Date: 2024.09.26 strict as in criminal cases and in order for any party to succeed, he/it is required to prove his/its case on the preponderance of probabilities.
The relevant portion of the aforesaid pronouncement is hereby produced here for the sake of brevity It has been held that there is a marked difference as to the effect of evidence, namely, the proof, in civil and criminal proceed- ings. In civil proceedings, a mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral cer- tainty as convinces the mind of the court, as a reasonable man, beyond all reasonable doubt."
19.Further, 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 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.
CS SCJ 35739-16 SHIV KUMAR SHARMA Vs. DEVENDER Page No. 10 of 20 Digitally signed by PRITU RAJ PRITU RAJ Date: 2024.09.26 16:22:21 +05'30'
20.Having determined the burden of proof required to be discharged in civil cases, this court will now proceed to give it issues wise findings as per the issues framed on 18.04.2011, are as follows:-
Issue no I I) Whether the plaintiff has assessed the valuation of the suit as per Suit Valuation Act and has filed appropriate Court Fees as per the Court Fees Act and if yes, what are its consequences. OPD.
21.The onus to prove the said issue was upon the Defendants. No evidence has been led by the Defendants to discharge the said burden. In absence of the same, this issue is accordingly decided in favor of the plaintiff and against the Defendants.
Issue no II II) Whether the plaintiff is entitled for decree of declaration, as prayed for? OPP.
22. The onus to prove the said issue was upon the Plaintiff. A perusal of prayer clause of the plaint shows that Plaintiff has sought to be declared as the absolute owner of plots bearing Kh. no. 287 (0-8) and 288 (0-7) in the extended lal dora of village Holambi Khurd, Delhi. The relief of declaration has not been made qua plot in khasra no. 114 (0-7) or the house built on plot measuring 200 sq yds in old abadi area, Village Holambi Khurd, Delhi. It is settled law that a Court cannot grant a relief which has not been claimed (Rajasthan Art Emporium Vs. Kuwait Airways and Anr. 2023 INSC 996). Hence, the adjudication qua declaration would be made only qua plots bearing Kh. no. 287 (0-8) and 288 (0-7) in the extended lal dora of village CS SCJ 35739-16 SHIV KUMAR SHARMA Vs. DEVENDER Page No. 11 of 20 PRITU Digitally signed by PRITU RAJ RAJ Date: 2024.09.26 16:22:32 +05'30' Holambi Khurd, Delhi.
23.Now the Plaintiff's claim of ownership over the aforesaid plots, i.e., plots bearing Kh. no. 287 (0-8) and 288 (0-7) in the extended lal dora of village Holambi Khurd, Delhi is based upon a will dated 25.08.1977 as well as on the claim of adverse possession. Both these claims will be considered one by one.
CLAIM OF OWNERSHIP BASED ON WILL
24. As regards the claim of ownership based upon will dated 25.08.1977, the same ought to have been proved as per the procedure laid down in IEA, 1872. The will in question is an unprivileged will. Hence, the same ought to be attested as per the requirement of s. 63 Indian Succession Act, 1925 [hereinafter 'succession act']. The same is reproduced below:
63. Execution of unprivileged Wills:
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
(a)The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.(b)The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c)The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the CS SCJ 35739-16 SHIV KUMAR SHARMA Vs. DEVENDER Page No. 12 of 20 PRITU Digitally signed by PRITU RAJ RAJ Date: 2024.09.26 16:22:44 +05'30' presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person;
and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
25. The will relied by the plaintiff i.e. Mark PW1/1 being the will dated 25.08.1997, fulfills the requirements of due attestation by two witnesses. Now, the question of proof of this will for it is settled law that merely exhibiting a document in evidence does not dispense with its proof. A will is a document which has to be proved as per the procedure laid down in the Indian Evidence Act, 1872 [hereinafter 'IEA']. s. 68 IEA lays down the mode of proof of documents which are required to be attested. Same is reproduced below:
68. Proof of execution of document required by law to be attested:
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
26.Now the question as to the procedure to be followed in case no CS SCJ 35739-16 SHIV KUMAR SHARMA Vs. DEVENDER Page No. 13 of 20 PRITU Digitally signed by PRITU RAJ RAJ Date: 2024.09.26 16:22:56 +05'30' attesting witness if found has been laid down in s. 69 IEA and s. 71 IEA, which is reproduced below:
69. Proof where no attesting witness found.
If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
71. Proof when attesting witness denies the execution. If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.
27. The upshot of the above discussion is that a will, being a document required to be attested, has to be proved in accordance with law i.e. by calling an attesting witness for the purpose of proving its execution. In cases where there is no such witness, or such witness denies or does not recollect the execution of the document, recourse can be had to either by examining witnesses who were able to prove the handwriting of the testator or executant or by other evidence as stated in s. 71 IEA. Essentially, it is imperative that the propounder of the will is called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document of his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its CS SCJ 35739-16 SHIV KUMAR SHARMA Vs. DEVENDER Page No. 14 of 20 Digitally signed by PRITU RAJ PRITU RAJ Date: 2024.09.26 16:23:07 +05'30' execution.
28.Coming to the present case, the will relied upon by the plaintiff, as observed above, has been duly attested by two witnesses. Ideally, either of the witnesses ought to have been examined as a witness for proving it. Same has not been done. The other recourse left was to prove the will in the manner indicated in s. 69 IEA i.e. by proving that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. Same has not been done. The plaintiff has categorically admitted in his cross examination that he was not present when the will was executed nor has he averred that he was present when the same was attested by the attesting witnesses. The testimony of PW-1 i.e. the plaintiff, is entirely silent as to either the names of the witnesses on the will or that he could identify the signatures of the witnesses who had attested the will. Similar is the case with other witnesses adduced on behalf of the plaintiff. PW-2, infact, has stated in his cross examination that he does not subscribe to any averment made in his written statement. This witness admits in his cross examination that he had never seen the will relied upon by the plaintiff and came to know about it when his father told him about it. The testimony of this witness is also entirely silent as to either the names of the witnesses on the will or that he could identify the signatures of the witnesses who had attested the will. Similarly, PW-3 has admitted in his cross-examination that he had never seen the will relied relied by the plaintiff.
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29.Hence, this Court holds that the will i.e. Mark PW1/1 being the will dated 25.08.1977 has not been proved as the IEA. Hence, the plaintiff's claim of ownership over plot in Khasra no. 287 (0-8) and 288 (0-7) in the extended lal dora of village Holambi Khurd, Delhi on the basis of such will cannot succeed.
CLAIM OF OWNERSHIP BASED ON ADVERSE POSSESSION
30. The other leg of plaintiff's claim of ownership over the aforesaid properties i.e. plot in Khasra no. 287 (0-8) and 288 (0-7) is based upon the claim of adverse possession. Same is apparently clear from a perusal of para 25 of the plaint where the said claim has been made. As held in M. Radheshyamlal v. V Sandhya and Anr. Etc. 2024 INSC 214, in order to prove the plea of adverse possession, the requirements to be proved are:
12. Therefore, to prove the plea of adverse possession:-
(a) The plaintiff must plead and prove that he was claiming possession adverse to the true owner;
(b) The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner;
(c) The plaintiff must also plead and establish when he came into possession; and
(d) The plaintiff must establish that his possession was open and undisturbed. It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff.
31.There is no need to dwell on the claim of ownership based upon the CS SCJ 35739-16 SHIV KUMAR SHARMA Vs. DEVENDER Page No. 16 of 20 PRITU Digitally signed by PRITU RAJ RAJ Date: 2024.09.26 16:23:37 +05'30' claim of adverse possession for it is misconceived. The first requirement of claim being made against the true owner remains unsatisfied. A look at the claim of the plaintiff, based upon his plaint, shows that he has never claimed either of the defendants to be the owner. His case has also always been that the suit property belonged to Siri Chand and subsequent to his death he had become the owner on account of the will. Hence, there is no merit in the plaintiffs' claim of declaration of ownership based on the claim of adverse possession.
32.This issue is accordingly decided in favor of the defendants and against the plaintiff.
ISSUES NO III III) Whether the plaintiff is entitled for the decree of permanent injuction restraining the defendant from interfering in the peaceful enjoyment of the possession and ownership of the property by the plaintiff with regard to two plots forming part of Khasra No. 287, 288 and 114 total measuring 759 sq. yards? OPP.
33.The onus of proving this issue lay on the plaintiff.
34.Plaintiff's claim is that he is the owner and in possession of the suit property. Hence relief of permanent injunction has been sought to restrain the defendants from interfering with his ownership and possession. As already determined above, the plaintiff's claim of ownership qua the properties in Khasra No. 287, 288 remains unsubstantiated. The same would be applicable to the plot in Khasra CS SCJ 35739-16 SHIV KUMAR SHARMA Vs. DEVENDER Page No. 17 of 20 PRITU Digitally signed by PRITU RAJ RAJ Date: 2024.09.26 16:23:52 +05'30' No. 114 as the claim of ownership is based on the same will and same claim of adverse possession. Hence, the plaintiff cant seek the relief of permanent injunction based upon ownership.
35. As regards the claim of permanent injunction seeking to restrain the defendants from interfering with his possession, the plaintiff is required to prove that he is possession of the properties described above. For plot bearing khasra no. 287 and 288, the plaintiff has himself claimed that as per khautani records, one Raghunath Singh and Risal Chand have got the mutation done in their name, albeit fraudulently. It is settled that revenue records do not confer any ownership. [The State Of Punjab & Ors.V. Bhagwantpal Singh Alias Bhagwant Singh (Deceased) Through Lrs. 2024 INSC 518.]. They only enable the person in whose mutation has been recorded to pay the land revenue in respect of the land in question (Bhimabai Kamberkar (D) Th. LR v. Arthur Import and Export Comapny (2019) 3 SCC
191) while giving rise to a rebuttable presumption of being in possession in favour of the person who name is so recorded - Raghunath Singh and Risal Chand, in the present case. Hence, the plaintiff is not shown to be in possession even by the revenue records.
36. As regards land in khasra no 114(0-07)possession has been sought to be proved by means of Ex. PW1/12, as stated in para 20 of the evidence affidavit. However, the said photogrpahs cannot be relied upon since the plaintiff has not examined the person who had taken the photographs nor has the same been verified on oath by a persons able to speak on its accuracy. It is settled law that photographs should CS SCJ 35739-16 SHIV KUMAR SHARMA Vs. DEVENDER Page No. 18 of 20 PRITU Digitally signed by PRITU RAJ RAJ Date: 2024.09.26 16:24:05 +05'30' not be taken in evidence without examining the person who took the photographs and the negatives of the same being produced on record or at whose instance the photographs were taken. [P. Rama Srinivasa Rao vs Dr. N. Ragavan (2006)3 MLJ 625]. Hence the claim of possession over plot in Khasra no 114 remains unsubstantiated.
37. As regards the house built on plot measuring 200 sq yds in old abadi area, Village Holambi Khurd, Delhii, no evidence whatsoever has been brought on record to corroborate the plaintiff's claim of possession over the same. The plaintiff could have produced electricity bills, water bills, telephone bills etc. to assuage his claim of ownership. Same has not been done. Hence the claim of possession over the house remains unsubstantiated.
38. In light of the aforesaid observations, the plaintiff has failed to discharge the onus placed on him for the current issue. It is accordingly decided in favour of the defendants and against the plaintiff.
Issue no. IV IV) Whether the plaintiff is entitled for permanent injunction restraining the defendant from selling, transferring, alienating, mortgage, or creating third party interest with regard to the suit property in question? OPP.
39. As determined above, the plaintiff has failed to prove himself either CS SCJ 35739-16 SHIV KUMAR SHARMA Vs. DEVENDER Page No. 19 of 20 Digitally signed by PRITU RAJ PRITU RAJ Date: 2024.09.26 16:24:17 +05'30' the owner or in possession of the suit properties. He has failed to show the existence of any obligation in his favour warranting a permanent injunction. Hence, this issue is decided in favour of the defendants and against the plaintiff.
RELIEF
40. In light of the aforesaid observations, the suit fails and is accordingly dismissed. Given the factual matrix, no order as to costs.
41.Decree sheet be prepared accordingly.
42. File be consigned to the record room after necessary compliance.
PRITU Digitally signed
by PRITU RAJ
Announced in the open
Court on 26.09.2024 RAJ Date: 2024.09.26
16:24:31 +05'30'
(PRITU RAJ)
CIVIL JUDGE (NORTH)
ROHINI/DELHI/26.09.2024
CS SCJ 35739-16 SHIV KUMAR SHARMA Vs. DEVENDER Page No. 20 of 20