Delhi District Court
Ram Mehar vs Pandit Brij Mohan on 24 September, 2018
Page 1 of 28
IN THE COURT OF SH. SUSHIL ANUJ TYAGI, JSCC CUMASCJCUM
GUARDIAN JUDGE, DISTRICT: SOUTHEAST, NEW DELHI.
CS No: 51270/16
IN THE MATTER OF :
RAM MEHAR
S/O SHRI CHHOTTU
R/O H. NO. 895C/31,
WARD NO. 8, MEHRAULI,
NEW DELHI30
.....PLAINTIFF
VERSUS
1.PANDIT BRIJ MOHAN S/O NOT KNOWN R/O SHIV MANDIR AT 895C/31, WARD NO. 8, MEHRAULI, NEW DELHI30
2. SH VIJAY MEHTA S/O SH. TOTA RAM R/O 890/8, MONIKA ELECTRONIC MAIN MARKET, SARAI, CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 2 of 28 MEHRAULI, NEW DELHI30
3. SMT. ISHWAR W/O LATE SHRI OM PRAKASH HANS R/O 890A/8 MAIN MARKET, SARAI MEHRAULI, NEW DELHI30 .....DEFENDANTS Date of Institution : 27.04.2011 Reserved for Judgment : 06.09.2018 Date of Decision : 24.09.2018 JUDGMENT
1. Vide this judgment, I shall dispose off the present suit for possession and permanent injunction filed by plaintiff Ram Mehar (hereinafter called plaintiff) against Mr. Brij Mohan, Mr. Vijay Mehta and Smt. Ishwar (herein after called defendants) seeking the following reliefs:
a) Pass a decree of possession in relation to the suit property/temple i.e. Temple on the ground floor and one room measuring 8'X10' in length and breadth respectively with temporary tin shed upon it along with latrine and bathroom constructed on the first floor as specifically shown in red colour in the site plan attached with the present plaint in favour of plaintiff as against the defendant no. 1.
(b) Pass a decree of permanent injunction prohibiting the CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 3 of 28 defendant no. 1 to 4, their family members, friends, associates, servants, agents, successors etc not to raise any construction on the first floor of temple and further not to raise any construction on the first floor of temple and further not to create any third party interest in the temple as specifically shown in red colour in the site plan attached with the present plaint.
PLAINT
2. The brief facts of the case as per plaintiff are as follows: i. It is averred that the plaintiff was convicted in case titled as State Vs. Chhotu etc. bearing FIR no. 105/81, under Section 302/325/34 IPC, PS Mehrauli and has already undergone life sentence in the said case. The plaintiff was released from jail on 21.07.2004 after his sentence was commuted by the orders of sentence Revising Board upon his good conduct.
ii. It is alleged that in the above said criminal case bearing FIR no. 105/81, PS Mehrauli, the plaintiff has filed one Criminal Appeal no. 342 of 1987 with Criminal Appeal no. 414 of 198 before the Hon'ble Supreme Court of India and the plaintiff was ordered to be released on bail on 25.08.1988 and consequently the plaintiff was released on bail in the said case on 30.08.1988 till 26.09.1996 when the Hon'ble Supreme Court finally decided and dismissed the said appeal and the plaintiff had to surrender before the Hon'ble Court in the said case to undergo the sentence.
iii. It is alleged that during the above said period from 30.08.1988 to 26.09.1996 when the plaintiff was on bail, the plaintiff purchased a plot CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 4 of 28 measuring 3240 square yards out of khasra no. 1151/3, Village Mehrauli, New Delhi on 17.01.1989 from its erstwhile owner Shri Wali Mohammad s/o Late Shri Jan Mohammad r/o Katra 1580, Sarai Khalil, Sadar Bazar Delhi for a sum of Rs. 1.80 lakhs. The said plot measuring 3240 square yards comes under Lal Dora and the said plot is shown in yellow colour in the site plan attached with the present suit.
iv. It is further alleged that plaintiff is by nature religious person and since the plaintiff belongs to schedule caste community, hence he was usually restricted and humiliated by people of locality to enter in their temples to offer prayers due to which, the plaintiff, many a times, was returned without offering prayers in the temples of his vicinity. Due to above said difficulty, after purchase of said plot, the plaintiff constructed one Shiv Temple on a piece of land of 62 square yards measuring 16'X36' in length and breadth respectively out of the above said plot total measuring 3240 square yards which is bearing Municipal no. 895C/31, Ward no. 8, Mehrauli, New Delhi. The said Shiv Temple has been built by plaintiff out of his funds and upon his owned land and the same is made by the plaintiff strictly for his and his family members' private use.
v. It is alleged that the said Shiv temple is private property of plaintiff of which he is lawful owner and the plaintiff is having every right, title and interest in regard to the said Shiv Temple. After release from the jail on 21.07.2004 after completion of his sentence, the plaintiff got constructed one small room measuring 8'X10' in length and breadth respectively with temporary tin shed on the first floor of temple in January 2005 so that CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 5 of 28 articles belonging to temple such as puja samagri, parsad, religious books, personal belongings of deities such as clothing, garlands of deities, dusting and cleaning material and equipments such as mops and detergents etc. could be placed there.
vi. It is alleged that in April 1999, two persons named Mr. Rajpal Soin and Mr. Yashpal Soin, owners of M/s Soin Properties in connivance with Mr. Jagdish Kapoor, who was junior engineer in MCD Mehrauli, New Delhi at that moment and was a partner in the property business of Mr. Rajpal and Mr. Yashpal Soin forcibly got transferred 2000 square yards of land out of above stated 3240 square yards of land out of above stated 3240 square yards from the plaintiff by forcibly getting executed one General Power of Attorney, Will and Receipt of Rs. 2 lakhs only from the plaintiff in respect of above stated 2000 square yards. The said plot of 2000 square yards is shown in blue colour in the site plan attached with the present suit. In addition to this, on 16.10.1992, the plaintiff has already sold a plot measuring 354 square yards out of total above stated 3240 square yards to another person Mr. Suresh Hans and Mr. Arun Kumar Hans and the same is shown in green colour in the site plan attached with the present suit. In this way, now out of total of 3240 square yards, the plaintiff is owner of one plot measuring 600 square yards, one plotcumhouse measuring 224 square yards under which the plaintiff has been residing now and the above stated temple measuring 62 square yards.
vii. It is alleged that from the year 1988 to 1996, the plaintiff managed and looked after the said temple and continued to be in possession of said CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 6 of 28 temple and the plaintiff and his family members continued to offer prayers in the said temple when thereafter, after dismissal of criminal appeal of plaintiff as submitted hereinbefore, the plaintiff had to surrender before the court of law and went in prison for undergoing his imprisonment. During the period of his imprisonment, the wife of plaintiff along with his family members were in possession of temple and they started looking after, managing and continuing prayers in the said temple. The plaintiff also got some paroles in the above stated criminal case in the intervening period and during the periods of said paroles, he also continued to be in possession of temple and continued to look after, manage and offer prayers in the said temple alongwith his family members.
viii. It is alleged that on 24.04.2005, the defendant no. 1 contacted the plaintiff and requested the plaintiff to let him offer prayers in the said temple and to serve the temple as the plaintiff and his wife are senior citizens and being in their old age, they were feeling difficulty to do routine chores of the temple such as daily cleaning, purification and sanctification of temple, hence looking to the said problem of plaintiff, the plaintiff gave oral permission to the defendant no. 1 to serve the temple with the condition to open the temple in the morning daily by taking keys of temple from plaintiff and to return the keys of temple after locking the same daily at night and in this way, the defendant no. 1 was in no way given the possession of temple by the plaintiff. The defendant no. 1 had been opening the temple by taking keys of the temple in the wee hours every day from the plaintiff and further the defendant no. 1 had been returning the keys of temple every night to the plaintiff after closing of temple.
CS No. 51270/16 (Sushil Anuj Tyagi)
Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge
South East, Saket Courts:New Delhi
24.09.2018
Page 7 of 28
ix. It is alleged that the abovesaid routine went till 01.01.2011, when the
defendant no. 1 after making a conspiracy with defendant no. 2 to 4 took his family having his wife and children from Uttranchal and started residing in the above stated room on the first floor of temple and further denied to handover keys of temple to the plaintiff in the night. When the plaintiff objected for same, the defendant no. 1 along with defendant no. 2 to 4 started threatening the plaintiff with dire consequences if he raised any objection regarding occupancy of defendant no. 1 and his family in the temple. All the defendants have no right, title or interest in the temple but they have bad intentions to illegally occupy the said temple and to use the same for their purposes.
x. It is alleged that on 02.01.2011, the plaintiff went in police station Mehrauli to lodge a complaint against the defendants but the concerned police authorities refused to receive any complaint from the plaintiff further advised the plaintiff to approach civil court in this regard.
xi. It is alleged that on 10.02.2011, the plaintiff came to know that the defendant no. 1 with the active aid and connivance of defendant no. 2 to 4 has been trying to get the electricity meter installed in the temple from BSES Rajdhani Power Limited by filing forged and fabricated ownership documents in regard to temple.
xii. It is alleged that on 12.02.2011, the plaintiff filed a complaint with Deputy General Manager, BSES Rajdhani Power Limited, District Consumer Center, C9, Vasant Kunj, New Delhi submitting him not to install any electricity meter in the said temple as the temple is the private CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 8 of 28 property of plaintiff.
xiii. It is alleged that on 10.03.2011, the plaintiff has given a legal notice to the defendant no. 1 through his advocate whereby the permission granted by the plaintiff to the defendant no. 1 to enter, serve and offer prayers in the said temple/suit property has been revoked and further advising the defendant no.1 to vacate the temple and room alongwith latrine and bathroom on the first floor of temple within 3 days of receipt of legal notice. The said legal notice was posted on 11.03.2011 but despite the said legal notice, the defendant no. 1 has not complied the text of legal notice and has not vacated the said temple neither any reply of the said legal notice from the side of defendant no. 1 has been received by the plaintiff as of now.
xiv. It is alleged that on 24.04.2011, at about 06.00 pm the defendant no. 1 to 4 visited the house of plaintiff and further threatened to construct two more rooms on the first floor of the temple and the defendant no. 2 to 4 further threatened the plaintiff to give them on rent to prospective tenants illegally with the active aid and connivance of defendant no. 1 and in this way, the defendant no. 1 to 4 have threatened to create third party interest in the temple.
xv. It is alleged that on 25.04.2011, the plaintiff has found that the defendant no. 1 to 4 have brought one truck of bricks and some other construction material in order to raise construction on the first floor of temple. Upon request of plaintiff not to do such construction work, the defendants have shown their adamant behaviour and they have CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 9 of 28 threatened not only to construct two additional rooms on the first floor of the temple but to illegally give them on rent to somebody also.
xvi. It is alleged that the plaintiff again visited in police stated Mehrauli the same day to lodge a complaint against the defendants but the concerned police authorities again refused to receive any complaint from the plaintiff further advising the plaintiff to approach civil court in this regard.
WRITTEN STATEMENT ON BEHALF OF DEFENDANTS
3. The defendants has defended the suit on the following grounds: i. It is stated that the suit filed by the plaintiff is frivolous, vexatious and devoid of merits. It is alleged that the plaintiff in order to succeed in his nefarious designs and to cover up his mistake is leveling false allegations against the defendants by suppressing materials and correct facts from this Hon'ble Court. It is alleged that the plaintiff has approached the Hon'ble Court, with unclean hands stating the distorted and inchoate facts with malafide intentions of misleading this Hon'ble Court.
ii. It is alleged that there is no cause of action accrued against the defendants and in favour of the plaintiff and the present suit filed only to harass the defendants. It is alleged that the suit is liable to be rejected out rightly as per the provision enumerated under Order VII Rule 11 (a) of the CPC. It is also alleged that plaintiff has also not valued the suit property.
iii. It is alleged that the plaintiff is convicted person in the murder case
CS No. 51270/16 (Sushil Anuj Tyagi)
Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge
South East, Saket Courts:New Delhi
24.09.2018
Page 10 of 28
in case titled State Vs. Chhotu & Ors. bearing no. 105/81 under Section 302/32/34 IPC PS Mehrauli, therefore, the question of the religious by nature does not arise. It is further submitted that the said Shiv Mandir had been build by the local people of the said vicinity along with defendants and it was never been the private property of the plaintiff so the question of the private use of the said mandir does not arise.
iv. It is alleged that the defendant no. 1 is priest who has been appointed by the local people and defendant no. 1 performing puja taking care of mandir suit property.
ISSUES
4. On the basis of pleadings of parties, following issues were framed by the Ld. Predecessor of this Court, vide order dated 29.10.2014.
Sl. Issues Onus to
no. prove
1. Whether the plaintiff has approached this court with OPD
unclean hands?
2. Whether the plaintiff has suppressed true and material OPD
facts from his court?
3 Whether the present suit has been instituted without any OPD
cause of action?
4 Whether the suit has not been properly valued for the OPD
purpose of court fees and jurisdiction?
CS No. 51270/16 (Sushil Anuj Tyagi)
Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge
South East, Saket Courts:New Delhi
24.09.2018
Page 11 of 28
5 Whether the suit is barred by the law of limitation? OPD
6 Whether the plaintiff is entitled to a decree of possession OPP
as prayed for?
7 Whether the plaintiff is entitled to a decree of permanent OPP
injunction as prayed for?
8 Relief.
5. Matter was then listed for Plaintiff Evidence.
PLAINTIFF EVIDENCE
6. Mr Ram Mehar, Plaintiff herself appeared as PW1, who had filed her evidence by way of Affidavit Ex. PW1/1 and relied upon following documents:
Sl Exhibits Documents no. documents. 1 Mark PW1/A Copy of the Hon'ble Supreme Court of India dated
25.08.1988 in Criminal Misc Petition no. 1385/88 titled as Ram Mehar & Anr. Vs. State (Delhi Admn).
2 Mark PW1/B Copy of the order of the Hon'ble Supreme Court of India dated 26.09.1996 in Criminal Appeal no.
342/1987 titled as Ram Mehar & Anr Vs. State (Delhi Admn) running into 11 pages.
3 Ex.PW1/C Site plan of the suit property (mode of proof objected)
CS No. 51270/16 (Sushil Anuj Tyagi)
Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge
South East, Saket Courts:New Delhi
24.09.2018
Page 12 of 28
4 Ex.PW1/D GPA dated 17.01.1989 running into 3 pages.
(OSR)
5 Ex.PW1/E Copy of Agreement to Sell dated 17.01.1989 running
(OSR) into 3 pages.
6 Ex.PW1/F (OSR) Affidavit executed on 17.01.1989 in favour of plaintiff
Ram Mehar by Wali Mohd.
7 Ex.PW1/G Certified Copy of the registered Will dated 17.01.1989.
8 Ex.PW1/H Copy of the receipt dated 17.01.1989.
(OSR)
9 Mark PW1/1 Title document in favour of Shri Wali Mohd. Running
into 2 pages.
10 Mark PW1/J Translated copy of mark PW1/1
11 Mark PW1/K Copy of receipt of property tax dated 10.03.2011.
12 Ex.PW1/L Certified copy of the registered receipt dated
20.04.1990
13 Ex.PW1/M Certified copy of the registered Will dated 20.04.1990
14 Mark PW1/N Copy of complaint lodged at BSES on 12.02.2011 vide
DD no. 17B.
15 Mark PW1/O Grievance details of the complaint lodged by complaint
at BSES Rajdhani Power.
16 Ex.PW1/P Offline copy of the legal notice dated 10.03.2011
17 Ex.PW1/Q AD receipt
CS No. 51270/16 (Sushil Anuj Tyagi)
Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge
South East, Saket Courts:New Delhi
24.09.2018
Page 13 of 28
18 Ex.PW1/R UPC receipt
7. Shri M. K. Verma, Zonal Inspector, Property Tax Department, SDMC, South Zone, Sector9, R. K. Puram, New Delhi had appeared as PW2, who had filed the summoned record i.e. Property Tax receipt dt. 26.03.1990 of property bearing no. 895C/31, Ward no.8, Mehrauli, New Delhi which is Ex. PW2/A.
8. Shri Naveen, Record Keeper, Department of Delhi Archives, 18A, Satsang Vihar marg, New Delhi had appeared as PW3 who produced the summoned record i.e. Registered Will dated 17.01.89 executed by Sh. Wali Mohammad in favour of Sh. Ram Mehar, which is Ex PW1/G.
9. PW1, PW2 & PW3 were cross examined by the counsel for the defendants and thereafter the Plaintiff Evidence was closed vide Order dated 14.02.2017. Matter was then listed for Defendant Evidence.
DEFENDANT EVIDENCE
10. Mrs. Ishwar Devi appeared as DW1, who had filed her evidence by way of Affidavit Ex. DW1/A and relied upon following documents:
Sl Exhibits Documents
no.
1 Ex.DW1/1 Copy of passbook of Brij Mohan (objected by counsel
(OSR) for plaintiff to the mode of proof)
CS No. 51270/16 (Sushil Anuj Tyagi)
Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge
South East, Saket Courts:New Delhi
24.09.2018
Page 14 of 28
2 Ex.DW1/2 Copy of gas connection by Indian Oil in the name of Pt.
(OSR) Brij Mohan (OSR, three pages) (objected by counsel for
plaintiff to the mode of proof).
3 Ex.DW1/3 Copy of Insurance Policy of Brij Mohan dt. 14.03.2002
(objected by counsel for plaintiff to the mode of proof).
4 Ex.DW1/4 Copy of estimate of Jai Hind Glass Work.
(OSR) 5 Ex.DW1/5 Copy of bahi khata & bills are collectively (17 pages) (OSR) (Though the bills are mentioned as Ex.DW1/6 in the affidavit).
11. Pt. Brij Mohan appeared as DW2, who had filed his evidence by way of Affidavit Ex. DW2/A and relied upon the documents already Ex DW1/1 to Ex DW1/5.
12. Mr. Raj Pal Soin appeared as DW3 who has filed his evidence by way of affidavit Ex.DW3/A and relied upon following documents:
Sl Exhibits Documents no. 1 Ex.DW3/1 Certified copy of the suit filed by plaintiff against the
deponent bearing CS SCJ no. 32/2016 (objected to mode of proof).
2 Ex.DW3/2 Certified copy of memo of parties in suit bearing CS SCJ no. 32/216 (objected to mode of proof).
3 Ex.DW3/3 Certified copy of the site plan filed by plaintiff in the suit bearing CS SCJ no. 32/12016 (objected to mode of proof).
CS No. 51270/16 (Sushil Anuj Tyagi)
Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge
South East, Saket Courts:New Delhi
24.09.2018
Page 15 of 28
4 Ex.DW3/4 (colly) Certified copy of Mediation report in suit bearing CS
SCJ no. 32/2016 (running into 1 to 5 pages) (objected to mode of proof).
5 Ex.DW3/5 Certified copy of judgment and decree dated 25.09.2017 (objected to mode of proof).
6 Ex.DW3/6 (colly) Certified copy of statement of plaintiff and his counsel in suit bearing CS SCJ no. 32/2016 are (running into 2 pages) (objected to mode of proof).
7 Mark A Certified copy of registered sale deed dated 11.02.1994 in favour of Sh. Jawahar Lal Sehgal 8 Mark B Certified copy of sale deed dated 11.02.1994 in favour of Late Sh. Dharam Pal Soin 9 Mark C Certified copy of registered sale deed dated 15.02.1994 in favour of Sh. Sudhir Kumar Ahuja 10 Mark D Copy of registered sale deed dated 25.02.1994 in favour of M/s Protection System and Devices, Prop. Smt. Taruni Soin W/o Sh. Dharam Pal Soin 11 Mark E Copy of details of pending litigation against the plaintiff
13. DW1, DW2 & DW3 were cross examined by the counsel for the plaintiff and thereafter the defendants evidence was closed vide Order dated 12.02.2018. Matter was then listed for arguments.
FINDINGS
14. My issuewise findings are as follows:
Issue No. 1. Whether the plaintiff has approached this court CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 16 of 28 with unclean hands? OPD AND Issue no. 2. Whether the plaintiff has suppressed true and material facts from his court? OPD
15. The burden to prove these issue lies upon the defendants. In the WS, the defendants have taken the plea that plaintiff has approached the court with unclean hands by suppresing material and correct facts. No facts have been averred in the WS to show what facts have been concealed or suppresed by the plaintiff due to which it could be said that plaintiff has come to the court with unclean hands. No such evidence has been led by the defendants to prove that plaintiff has approached with unclean hands or has concealed some material facts. In these circumstances, the issue no. 1 & 2 are decided against the defendants.
Issue no. 3. Whether the present suit has been instituted without any cause of action? OPD
16. The onus to prove this issue lies upon defendants. The cause of action means a bundle of facts which taken with the law applicable gives the plaintiff a right to relief against the defendants. It includes some act done by the defendants on which it is founded.
17. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be proved. So long as the plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Court, the plaintiff may not succeed cannot be a ground for CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 17 of 28 rejection of the plaint.
18. In Rajasthan High Court Advocates' Association v. Union of India, 2001(2) SCC 294: AIR 2001 SC 416, it was observed thus:
"The expression "cause of action" has acquired a judicially settled meaning. In the restricted sense cause of action means the circumstances forming the infraction of the right or the immediate occasion of the action. In the wider sense, it means the necessary conditions for the maintenance of the suit, including not only the infraction of the right, but the infraction coupled with the right itself. Compendiously the expression means every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. Every fact which is necessary to be proved, as distinguished from every piece of evidence which is necessary to prove each fact, comprises in "cause of action". It has to be left to be determined in each individual case as to where the cause of action arises."
19. In the present case, interalia the plaintiff alleged that in the year 2005 he allowed defendant no.1 to offer prayers in the temple but not to reside and in the year 2011, defendant starting residing in the temple with his family and on raising objection by the plaintiff, the defendant no.1 refused to hand over the keys. Now, whether the plaintiff would be able to prove his case or not, is a different question but the claim cannot be rejected on the basis of lack of cause of action. The defendants have failed to show as to how the plaint does not disclose a cause of action. Thus, this issue is decided against the defendants and in favour of plaintiff.
Issue no. 4. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 18 of 28
20. The burden to prove this issue also lies upon the defendants. During the trial, the arguments were heard on the pecuniary jurisdiction but vide order dated 24.05.2013 the Ld. Predecessor of this court observed that at that stage, the issue cannot be decided and it was kept open. It was observed that the issue will be decided after conclusion of evidence by the parties.
21. The burden was upon the defendants to prove that the present suit has not been valued properly for the purpose court fees and jurisdiction. No evidence has been led by the defendants to show that the suit has been under valued or that the market price of the suit property is more than 2 lakhs as valued by the plaintiff in the plaint. The defendants have failed to discharge the burden, hence, this issue is decided against the defendants.
Issue no. 5. Whether the suit is barred by the law of limitation?
OPD.
22. The burden to prove this issue lies upon the defendants. The defendants have averred that the plaintiff was released from jail in the year 2004 as alleged by the plaintiff himself and the present suit was filed in the year 2011 and therefore, the suit is time barred.
23. In the present case, the averments of the plaintiff are that in the year 2005, he allowed defendant no. 1 to serve the temple and to return the keys of the temple daily at night but after 01.01.2011, the defendant no. 1 in conspiracy with other defendants, started residing in the first floor of the temple and denied to hand over the keys. Thus, the cause of action has CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 19 of 28 arisen after 01.01.2011 and thus, according to the averments of the plaint, the suit of the plaintiff is within the period of limitation and cannot be said to be barred by the Law of Limitation. Even if the allegation is to be considered that the plaintiff was released from jail in the year 2004 even then the present suit of possession is within the prescribed period of 12 years from the year 2004. The Article 64 & 65 of the Schedule to the Limitation Act, 1963 provides that the period of limitation of 12 years shall begin to run in a suit for possession from the date of dispossession or from the date when the possession of defendant has become adverse to the plaintiff. In the light of above, the issue no. 5 is decided against the defendants.
Issue no. 6. Whether the plaintiff is entitled to a decree of possession as prayed for? OPP AND Issue no. 7. Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP
24. The burden to prove these issue lies upon the plaintiff. It is a case of the plaintiff that he had purchased a plot measuring 3240 square yards on 17.01.1989 from the erstwhile owner Shri Wali Mohammad. After purchase of the plot, the plaintiff constructed one Shiv Temple in 62 square yards of the aforesaid plot out of his own funds for his private use. It is further alleged that plaintiff was convicted in FIR 105/81 PS Mehrauli and he was released from jail on 21.07.2004 after completion of the sentence. Thereafter, plaintiff got constructed one small room with temporary tin shed on the first floor of the temple in January 2005. It is further alleged that in CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 20 of 28 April 1999, Mr. Rajpal Soin and Mr. Yashpal Soin forcibly got transferred 2000 square yards of land from the plaintiff and got executed one GPA, Will and Receipt. It is further alleged by the plaintiff that on 20.04.2005, defendant no. 1 contacted the plaintiff and the plaintiff allowed him to offer prayers and serve the temple, by taking the keys in the morning and returning the keys daily at night to the plaintiff. It is alleged that defendant no. 1 was in no way given the possession of the temple. It is alleged that after 01.01.2011, the defendant no. 1 started residing in the first floor of the temple along with his family and denied to hand over the keys of the temple to the plaintiff in night and hence the present suit for possession has been filed by the plaintiff.
25. First of all, it is the averment of the plaintiff that he is owner of the suit property as he has purchased the same from the earlier owner Sh. Wali Mohammad. It is alleged that Sh. Wali Mohammad was the owner of the property and the plaintiff relied upon one photocopy of one document in Urdu Mark PW1/I and its english translation Mark PW1/J. The english translation Mark PW1/J proposes that it is a sale deed executed by Ms. Sultan Bi in favour of Sh. Wali Mohammad on 19.07.1952 and registered in the office of Sub Registrar, Delhi. No certificate of the translator has been annexed. The translator has not been examined to prove the translation. No original or no certified copy of the alleged sale deed has been produced by the plaintiff. Nor any witness has been examined from Sub Registrar office to prove the document. Be that as it may, the documents does not mention as to how Ms. Sultan Bi became the owner of this property. There is no chain of documents prior to this to show how she has CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 21 of 28 acquired ownership of the property.
26. Now coming to the documents in favour of the plaintiff, they reveal that the property has been purchased by the plaintiff from Sh. Wali Mohd. vide GPA, Agreement, Affidavit, Will and Receipt (Ex PW1/D to Ex PW1/G) which are not valid documents of the title as per the judgment of the Hon'ble Supreme Court of India in Suraj Lamp Industries Vs. State of Haryana 2012 1 SCC 656 wherein it was observed thus:
"The transactions of the nature of "GPA Sales" or "SA/GPA/Will transfer" do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immovable property. The Courts will not treat such transaction as completed or concluded transfer or as conveyances as they neither convey title nor create any interest in an immovable property."
27. The plaintiff has examined only one witness to prove the registered Will Ex. PW1/G dt. 17.01.1989 of Sh. Wali Mohd. by summoning and examining PW3 Naveen, Record Keeper, Department of Archives, New Delhi who produced the certified copy of Will. But the plaintiff has not even proved whether the aforesaid Will has come into effect or not i.e. the plaintiff has not even proved that the executor Sh. Wali Mohd. has expired. The Will can only come into effect only on the death of the executor and since the death of the executor is not proved, there is no question of alleged Will coming into effect. Futher, as per Section 68 of Indian Evidence Act, if a document is required by law to be attested i.e. a Will, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. Conspicously, no attesting CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 22 of 28 witness has been examined by the plaintiff to prove the execution of the alleged Will. Hence, it is apparent that the alleged Will in favour of the plaintiff has not been proved in accordance with law. In the totality of the evidence, it can be safely concluded that the plaintiff has not been able to prove his clear title to the property in question on the basis of documents Ex PW1/D to Ex PW1/H or Mark PW1/I to Mark PW1/J.
28. The plaintiff has also relied upon the copy of property tax receipt dt. 10.03.2011 Mark PW1/K. The original of Mark Ex PW1/K has not been produced nor it is sought to be proved as secondary evidence. Thus Mark PW1/K is not proved and therefore it could not to be read in evidence.
29. The plaintiff examined PW2 Sh M. K. Verma from Property tax department, SDMC, Delhi who produced the property tax receipt dt. 26.03.1990 verified by Assitant Assessor & Collector, SDMC, South zone, New Dehi which is Ex PW2/A. The mode of proof was objected by the counsel for the defendants. Since the witness was official witness from SDMC and the receipt he produced was signed and verified by the Assistant Assessor & Collector of SDMC, the objection of the defendants qua mode of proof does not appear tenable. The property tax receipt Ex.PW2/A has been duly proved in the opinion of this Court. The said receipt dt 26.03.1990 Ex PW2/A would only transpire that it was issued in the name of the plaintiff Sh Ram Mehar with respect to the property no. 895C/3/W8 for the year 198990 and nothing more. It does not reveal for how much area the said propety tax was deposited not does is disclose that the suit property i.e. temple is covered by this or not. It is also well CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 23 of 28 settled law that property tax receipt does not confer any title of the property. Thus, the property tax receipt is not of much benefit to the plaintiff as far as the question of title is concerned or to show the possession of the plaintiff over the suit land.
30. The plaintiff alleged that after purchase of the plot, he constructed the temple i.e. property in question in 62 sq. yards out of 3240 sq yards of the property. There is not even a whisper in the plaint about the year in which the alleged contruction was done. No proof whatsoever is shown by the plaintiff to prove the alleged construction by him and in which year. The plaintiff also alleges that he has constructed the room on the first floor of the temple after release from jail on 21.07.2004 but that too without any proof.
31. The case of the plaintiff mainly rests on the averment that in the year 2005, he has allowed Defendant no. 1 Pandit Brij Mohan to offer prayers and serve the temple, by allowing the Defendant no.1 to take the keys in the morning and to return the same in the evening. During the cross examination, of DW2, the plaintiff changed his stand and gave a suggestion to DW2 that he was inducted in the temple by plaintiff in the year 1996 and DW2 replied as follows:
"It is wrong to suggest that I was inducted by Ram Mehar in the Mandir in the year 1996. Vol: I did not know Ram Mehar at that time."
32. The averment of the plaintiff that Defendant no.1 was inducted by him in the year 2005 to the temple did not change while the plaintiff was CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 24 of 28 cross examined but during the cross examination of DW1, the plaintiff took a totally different stand that Defendant no.1 was inducted in the year 1996. This is a major contradiction in the version of the plaintiff and fatal for the plaintiff case. It was after the evidence of Defendant no.1 (as DW2) that the plaintiff cleverly took a different stand, as the Defendant no.1 has relied upon the documents qua the suit property showing his address to be of the the suit property in the year 2002 i.e. before the year 2005 as alleged by the plaintiff.
33. If it was the averment of the plaintiff that he brought the Defendant no.1 in the year 1996 in the property or that he allowed defendant no. 1 in the year 2005 to offer prayers and serve the temple, it was the duty of the plaintiff to prove the same. The plaintiff has led no evidence to prove that he was in possession of the suit property or that he inducted defendant no. 1 in the suit property. Rather, the defendants alleged that they have inducted Defendant no.1 in the suit property in the year 2001. The defendants proved the copy of passbook in the name of Brij Mohan Ex.DW1/1 dt. 19.06.2006, Indian Oil Gas Connection in the name of Brij Mohan Ex.DW1/2 dt. 02.02.2002, Insurance policy of Brij Mohan Ex.DW1/3 with due date 14.03.2002 which transpire that defendant no. 1 (Pandit Brij Mohan) was in the suit property prior to 2005, contrary to what has been alleged by the plaintiff. Hence, the main averment of the plaintiff that he has allowed defendant no. 1 in the suit property in the year 2005 stands falsified. Moreover, the averment of the plaintiff that the defendant no. 1 used to take keys in the morning and return at night after locking the temple till 01.01.2011 also remains not proved.
CS No. 51270/16 (Sushil Anuj Tyagi)
Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge
South East, Saket Courts:New Delhi
24.09.2018
Page 25 of 28
34. It is also the stand of the plaintiff that there was no separate electricity connection for the temple and the electricity was provided from the connection of th plaintiff. During the cross examination of DW1, suggestion was put on behalf of the plaintiff that Mandir was running on the electricity from the connection of Ram Mehar till August 2015. No evidence has been led by the plaintiff to prove this suggestion of the plaintiff. There is not a single averment in the plaint regarding the supply of electricity to temple by the plaintiff. This stand of the plaintiff is also stood falsified as there was an electricity raid on the mandir premises for theft of electricity for which assessment bill of Rs. 67,392/ was raised upon Pandit Brij Mohan in the year 2014. If the electricity in the temple was being taken from the connection of plaintiff, then there would not have been a question of electricity theft.
35. Further, the plaintiff has alleged that 2000 sq yards out of 3240 sq yards was forcefully got transferred by Rajpal Soin and Yashpal Soin in their favour from the plaintiff in the year 1990 but the execution of documents or the signatures have not been denied by the plaintiff and nor it is the case of the plaintiff the the documents in favour of Rajpal Soin and Yashpal Soin have been declared as null and void. The plaintiff has filed one case titled as "Ram Mehar vs. Ripudaman Singh and ors" bearing no. CS no 32/16 for declaration and injunction qua certain sale deeds executed by Rajpal Soin, which has been settled in Mediation vide order dt. 20.09.17. The certified copies of suit, Mediation and other documents are Ex DW3/1 to Ex DW3/6. The counsel for plaintiff has objected to the mode of proof but since the same are certified copies, there is presumption CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 26 of 28 as to their genuineness as per Section 79 of the Indian Evidence Act and as such the objection of the counsel of the plaintiff has no merits. It is the suit by the plaintiff and plaintiff is well aware about all the proceedings in that suit. The plaintiff should not have objected to the certified copies of such proceedings. The objection by the counsel for the plaintiff was unwarranted and it was raised just for the sake of raising it.
36. The plaint in that suit CS no. 32/16 reveals that the plaint has alleged that he has executed a registered Will in favour of Rajpal Soin and others dt 20.09.1990. The site plan filed by the plaintiff in the present case himself would show at the first glance that the suit property i.e. temple is covered by three sides with the property of Soin ("Soin property" as mentioned in the site plan). The documents executed by the plaintiff in favour of Rajpal Soin and others qua 2000 sq. yards does not carve out the alleged temple. The registered Will dated 20.04.1990 also gives the boundary of 2000 square yards as follows:
East: Plot of Shri Kailash
West: Road
North: Plot of Sh Ram Mehar about 500 sq
yards
South: Plot of Dhobi wali Masjid
37. The alleged temple lies to the West but there is no mention in the dimensions or boundary that the alleged temple exists. There is nothing to suggest that the land of alleged temple was carved out during the alleged CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 27 of 28 transfer of 2000 sq yards.
38. The plaintff has not been able to prove any of the averments leveled by the plaintiff in his plaint and the suit is liable to be dismissed.
39. Before parting with the case, it is also important to discuss the defence of the defendants. The defendants in the present case has alleged that the alleged temple was built by the local people of the vicinity after the land was donated by the plot owner. The defendants did not disclose the name of the plot owner who donated the land for construction of alleged temple. It was later during cross examination that the defendants' witnesses reveal that the temple land belongs to Rajpal Soin. DW3 Rajpal Soin was also examined to prove that he has donated the land for the temple. According to the defendants, the temple land was donated and the temple was constructed in the year 2001. It is also the admitted fact that the Rajpal Soin sold the impugned land of 2000 sq yards in parts of 500 sq yards each in the year 1994. If the total land of 2000 sq yards was sold by Sh. Rajpal Soin already in 1994 then how he donated 62 sq yards for the temple is still a mystical question. No one can transfer or donate what he himself does not have. When Sh Rajpal Soin himself did not remain the owner, no question of his donating the land for the temple would arise. Further, the defendants alleged that the temple was contructed in the year 2001 however the plaintiff has filed certified copies of the Writ petition filed by him while he was in jail in the year 1999 which reveals that the alleged temple was in existence in the year 1999 i.e. prior to the date alleged by the defandants. Thus, the defence of the defendants is also not robust and CS No. 51270/16 (Sushil Anuj Tyagi) Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge South East, Saket Courts:New Delhi 24.09.2018 Page 28 of 28 cannot be said to be completely reliable.
40. The fact remains is that it is the suit of the plaintiff and the burden lies upon the plaintiff to prove his suit on the preponderence of probabilities. It is upon the plaintiff to show that his case stands on his own legs. The plaintiff failed to prove his averments made in the plaint and failed to discharge the burden which rests upon his shoulder.
41. In the totality of the facts and circumstances, the issues no. 6 & 7 are decided against the plaintiff.
RELIEF
42. In the light of above conclusions on the issues, the suit filed by the plaintiff against the defendants is hereby dismissed.
43. Decree sheet be prepared accordingly.
44. No order as to costs.
45. File be consigned to Record Room, after due compliance.
Announced in the open (Sushil Anuj Tyagi)
Court today i.e. 24.09.2018 JSCCcumASCJcumGJ
South East, Saket Courts
24.09.2018 (r)
CS No. 51270/16 (Sushil Anuj Tyagi)
Ram Mehar Vs. Pandit Brij Mohan & Ors. JSCCcumASCJcumGuardian Judge
South East, Saket Courts:New Delhi
24.09.2018