Delhi District Court
The New Friends Co-Operative vs Shri Ramesh on 31 January, 2019
IN THE COURT OF Dr. PANKAJ SHARMA, CIVIL JUDGE-III
(WEST) TIS HAZARI COURTS, DELHI
SUIT NO. 606912/16
Date of Institution : 13.01.1989
Date of reserved for order : 29.01.2019
Date of order : 31.01.2019
THE NEW FRIENDS CO-OPERATIVE
HOUSE BUILDING SOCIETY LTD.
91, NEW FRIENDS COLONY, MATHURA ROAD
NEW DELHI ...... PLAINTIFF
Vs.
1 SHRI RAMESH, S/O SH. RANDHIR
R/O 105, BHARAT NAGAR, P.O. BHOGAL,
JANGPURA, NEW DELHI
2 SHRI RANDHIR, S/O SH. MOHAR
R/O 105, BHARAT NAGAR, P.O BHOGAL
JUNGPURA, NEW DELHI
3 M/S MEHTA FABRICS FIRM, NEW FRIENDS COLONY
MATHURA ROAD, NEW DELHI
THROUGH ITS PRINCIPAL OFFIER
4 SHRI K.K. MEHTA, PARTNER
M/S MEHTA FABRICS
NEW FRIENDS COLONY
MATHURA ROAD, NEW DELHI
5 MISS VEENA CHAWLA, PARTNER
M/S MEHTA FABRICS
NEW FRIENDS COLONY
MATHURA ROAD, NEW DELHI ....... DEFENDANT
SUIT FOR POSSESSION AND MANDATORY INJUNCTION
Suit No. 606912/16 The New Friends Co-operative Vs. Ramesh 1/17
JUDGMENT
1 The brief facts set out in the plaint are that plaintiff is a cooperative housing building society with aim and object to allot the land to its members for the purpose of residence. The plaintiff society has taken the chunks of land from the Government by means of an Agreement 13.02.1963 executed by President of India through the Secretary, Local Self Government & PWD, Delhi Administration, Delhi duly registered in the office of Sub Registrar (Assurances), Asaf Ali Road, New Delhi as document No. 1239 in Addl. Book No. 1, Vol. No. 935 on pages 46 to 67 on 23.09.1963. That amongst other lands the plaintiff is the lessee of the land bearing Khasra No. 26/1 situated within the Revenue Estate of Village Khizrabad, Delhi measuring 1 Begha. Before allotting the said khasra, the government had undergone the proceedings of acquisition of land and the due compensation was paid to the bhumidhars and after the acquisition all rights, title and interest vested in the Government along with possession. The government transferred the said land amongst others in favour of the plaintiff society through lease of deed and actual and physical possession was handed over to the plaintiff society in 1963. Out of the land in Khasra No. 26/1 situated within the Revenue Estate of Village Khizrabad, Delhi except 273.3 1/3 sq yds, the same was allotted to various members by developing and converted the same into residential plots. The land Suit No. 606912/16 The New Friends Co-operative Vs. Ramesh 2/17 measuring about 273.3 1/3 sq yds as described in the plan attached with the plaint is lying vacant and defendant No.1 to 3 in collusion with each other without having any right or authority encroached upon the peace of land in or about the month of April, 1987.
2 Defendant No. 4 was an employee of plaintiff society and he took undue advantage of his position and raised unauthorised construction without the knowledge and information of the Executive Members. It is submitted that defendant No. 4 in conspiracy with defendant No. 1 & 2 put them in different Courts as dummy plaintiffs and due to this he raised unauthroised construction over the suit property. Defendant No.1 filed a suit against MCD for permanent injunction claiming himself to be owner in possession of the suit property and when the plaintiff society came to know about the said fact, plaintiff moved an application under Order 1 Rule 10 CPC before the Court. The plaintiff has sought the possession of the suit property along with mandatory injunction for removal of unauthorised construction.
3 A common written statement was filed on behalf of defendant No. 3,4, & 5. DefendantS No. 1 & 2 were proceeded vide order dt. 28.01.1998. In WS, defendant No. 3,4, & 5 took the preliminary objection inter-alia that suit is barred by virtue of Section 10 CPC, Section 12 CPC.
Suit No. 606912/16 The New Friends Co-operative Vs. Ramesh 3/17 4 Plaintiff filed replication denying the averments made in the written statement.
5 Vide order dt. 19.02.1999 following preliminary issues were framed :-
1 Whether the suit is maintainable in view of provisions of Order 2 Rule 2 CPC?OPP 2 Whether the suit is liable to be dismissed for non compliance or Order 7 Rule 3 CPC? OPD 3 Whether the suit is barred under section 10 CPC ?
OPD 4 Whether the suit is barred by time?OPD 6 These preliminary issues were decided in favour of the plaintiff and against the defendants vide order dt. 21.10.2010. Issue No. 2 & 3 were decided in favur of the plaintiff, however, liberty was given to parties to lead evidence in support of Issues No.1 & 4 relating to order 2 Rule 2 CPC and limitation.
7 On the basis of the pleadings, following issues are framed on 06.01.2011- 1 Whether the plaint was instituted, signed and verified by a duly authorised person on behalf of the plaintiff society?OPD 2 Whether the suit has not been properly valued for the purpose of Court fees and jurisdiction?OPD 3 Whether the suit is barred by limitation?OPD Suit No. 606912/16 The New Friends Co-operative Vs. Ramesh 4/17 4 Whether the suit is barred u/o 2 Rule 2 CPC?OPD 5 Whether the plaintiff concealed material facts from the Court?OPD 6 Whether the plaintiff has no locus-standi to file the present suit?OPD 7 Whether the plaintiff is lessee of the suit land measuring 273.3 / 1/3 sq ydss comprising in Khasra No. 26/1 situated in the Revenue Estate of Village Khizabad, Delhi?OPP 8 Whether the deceased defendant No. 2 was the owner of the suit land, if so, its effect?OPD 9 Whether the defendant No.1 to 3 had encroached upon the suit land in April, 1987?OPP 10 Whether the defendant No. 4 raised unauthorised construction without knowledge and consent of the plaintiff company over the suit land?OPP 11 Whether the plaintiff is entitled to a decree of possession in respect of land measuring 273.3 / 1/3 sq yds forming part of Khasra No. 26/1 in the Revenue Estate of Village Khizabad, Delhi as shown in red in the site plan?OPP 12 Whether the plaintiff is entitled to the relief of mandatory injunction,as prayed?OPP 13 Relief.
8 In PE, PW-1 Nand Kishore Katial tender his evidence on 30.09.2015 and he was cross examined on the same day and again on 10.08.2016. PW-2 Udesh Kumar is a summoned witness who produced copy of Death Certificate of Sant Lal. PW-3 Satya Pal brought the summoned record Suit No. 606912/16 The New Friends Co-operative Vs. Ramesh 5/17 dt. 13.09.1963 registered as document No. 1239 in Addl. Book No. 1, vol No. 935 on pages 46 to 67 registered on 13.09.1963. PW-4 Sushil Kumar Sharma brought the certified true copy of certificate of plaintiff's society Ex. PW- 4/A 9 In DE, DW-1 Rajesh Sharma, Patwari, SDM Office was examined and D4W1 K.K Mehta was examined.
10 Argument heard. Record perused.
11 My issue wise finding is as follows:-
Issue No.1 & 4 (Both issues framed on 19.02.1999) 1 Whether the suit is maintainable in view of provisions of Order 2 Rule 2 CPC?OPD The decision on this issue was left to be rendered after the evidence of the parties as identity of cause of action was found to be mixed question of law and facts. The onus of proof of this issue is on defendant and defendant was required to establish that identity of the cause of action in the previous suit was the same as of the present suit.
In the cross examination of PW-1, he denied the knowledge of the fact that plaintiff's society filed a suit for possession vide Suit No. 693/1996/78. Defendant during the cross examination of PW-1 filed a certified copy of the suit No. 342/1978 titled as "The New Friends Co-operative House Suit No. 606912/16 The New Friends Co-operative Vs. Ramesh 6/17 Building Society Ltd. Vs. Ramesh & Randhir" and the said document is Ex. PW-1/D2. PW-1 also did not deny the existence of document Ex. PW-1/D1 being certified copies of judgment of previous suit filed by plaintiff against defendant Ramesh & Randhir.
However, PW-1 denied the suggestion that the previous suit was filed by plaintiff against defendant No. 1 & 2 stating that they have taken the possession of the suit property and have encroached upon the land of the plaintiff a year back from 1978. PW-1 did not dispute the existence of document Ex. PW-1/D2, however, he denied the knowledge of the fact that whether plaintiff's society has filed any suit against defendant No.1 other than the present suit and also denied the knowledge of purpose of filing the previous suit and its fate.
PW-1 also asserted that unauthorised construction by defendant No. 4 was raised in the year 1986-87 in the suit property. It is noteworthy that the present suit was filed by Sh. M.L Jaggi and previous suit Ex.PW-1/D2 was also filed by Sh. M.L Jaggi. PW-1 in his affidavit in para No. 6 deposed that he has seen Sh. M.L Jaggi writing and signing and he proved the signatures of Sh. M.L Jaggi on the plaint, however, in his cross examination he denied the suggestion that a suit was filed by plaintiff against defendant No. 1 & 2 after seeing Ex. PW-1/D1 wherein signatures of Sh. M.L Jaggi were appended.
As per the testimony of PW-1, he came to know about Suit No. 606912/16 The New Friends Co-operative Vs. Ramesh 7/17 the facts of the present case four years back from 2015. He also did not know the khasra number in which the suit property was situated. He also stated that there is no lease of khasra number 26/1 of the society with DDA. He asserted that defendants encroached the suit property 3-4 years prior filing the present suit. He denied knowledge of the fact of assessment of the suit property for the payment of house tax in whose name. PW-1 admitted in his cross examination that unauthroised construction was raised by defendant No. 4 in the year 1986-87 in the suit property. Although, PW-1 deposed in his affidavit that plaintiff's society filed a complaint against defendant No. 4 with police and MCD but he could not substantiate the same with record. PW-1 affirmed that he is a member of society since 1958 but not a member of Managing Committee of the society of plaintiff before 2003.
The present suit has been filed by plaintiff against Ramesh, Randhir, M/s Mehta Fabrics, Sh. K.K. Mehta, Ms. Veena Chawla. The previous suit No. 342/1978 was filed against Ramesh & Randhir only. The previous suit was filed for possession, however, the present suit has been filed for possession and mandatory injunction, though for the same property. Ramesh & Randhir have been proceeded ex-parte in the present suit and remaining defendants are contesting the present suit.
The cause of action in the previous suit was founded upon the encroachment of land by defendants about a year Suit No. 606912/16 The New Friends Co-operative Vs. Ramesh 8/17 back from 1978. In the previous suit, it was averred by plaintiff that defendant have without any right and authority occupied the land of the plaintiff measuring 10' x 12' out of land of khasra No. 26/1 about a year back by erecting pucca walls and putting tin sheds thereon encroaching it.
The cause of action in the present suit is founded upon the encroachment of land and raising of unauthorised super structure by defendants in April 1987 submitting that defendant No. 1,2, & 3 in collusion with each other encroached upon the piece of land measuring 273.3 1/3 sq. yds out of land khasra no. 26/1 in or about the month of April, 1987.
The cause of action for the purpose of Order 2 Rule 2 CPC means all the essential facts constituting the rights and its infringements. Besides identity of cause of action, the identity of the plaintiff should also be looked into under this provision.
The test is whether the claim in the subsequent suit is founded on a cause of action distinct from that which was foundation of the earlier suit. To constitute a bar under order 2 Rule 2 CPC three elements are required to be proved:-
Firstly, it must be established that second suit was in respect of same cause of action as that on which the previous suit was based, Secondly, in respect of that cause of action, the plaintiff is entitled to more than one relief and Suit No. 606912/16 The New Friends Co-operative Vs. Ramesh 9/17 Lastly that being so the plaintiff without leave obtained from the Court, omitted to sue for the relief for which the second suit has been filed.
In the previous suit, plaintiff has claimed possession, however, in the present suit which is subsequently filed, plaintiff has claimed possession and mandatory injunction. A bare reading of pleadings of both the suits would reveal that plaintiff has alleged that defendants have raised unauthorised construction and encroached upon the suit property and same is the basis of cause of action in both the suits. The cause of action for filing the previous suit arose a year back from 1978 and in the said suit a judgment was pronounced as such the said cause of action merged in the final judgment. Plaintiff again created a cause of action for filing the present suit seeking the same relief of possession with an additional relief of mandatory injunction without mentioning the fact in the body of the plaint that earlier suit was filed by the same person behalf of plaintiff's society against the defendants. As such, plaintiff created a cause of action for the purpose of filing the present suit, although, on the same cause of action he had earlier claimed a relief of possession. The reliefs in the previous suit and the present suit are identical and founded on same cause of action. Plaintiff has failed to rebut that cause of action in both the suits are distinct. In view of forgoing discussion this Court is of the considered view that the present suit is hit by provision of Order II Rule 2 CPC. Accordingly this issue is decided in favour of defendant.
Suit No. 606912/16 The New Friends Co-operative Vs. Ramesh 10/17 & Issue No. 4 4 Whether the suit is barred by time?OPD The onus to prove this issue was on defendants. The defendants claim that they are the owners and in possession of suit property since 1953 and the present suit has been filed in the year 1989 after a period of more than 35 years which is beyond the period of limitation of 12 years.
In the previous suit, plaintiff has claimed that defendants encroached upon the suit property and raised unauthorised construction a year back from 1978. In the present suit, plaintiff has based cause of action on the basis of encroachment and unauthorised construction by the defendants on the suit property in the year 1987. As plaintiff has filed an earlier suit in the year 1978 on the basis of a cause of action which according to them arose a year back from 1978 and same may be construed in the year 1977 and present suit was filed in the year 1989 and the period reckoned from 1977 till 1989 falls within the limitation period. Further, the documents filed by defendants could not prove that they had possession of the suit property since 1953. In the absence of any evidence of possession of defendants, the claim of the plaintiff is to be considered. Accordingly, this issue is decided in favour of the plaintiff.
Suit No. 606912/16 The New Friends Co-operative Vs. Ramesh 11/17 Issue wise findings on issues framed on 06.01.2011:-
Issue No.1 1 Whether the plaint was instituted, signed and verified by a duly authorised person on behalf of the plaintiff society?OPD As per the record, the plaint has been instituted by Sh.
M.L Jaggi who happened to be Secretary of the plaintiff's society at the time of filing of the suit. The plaintiff's society has been duly registered with Registrar of Co-operative Society and Sh. M.L Jaggi was duly authorised to represent the society in legal cases as per Ex. PW-4/A. Defendants have not produced any evidence to rebut the documentary eviddence produced by the plaintiff. Accordingly, this issue is decided in favour of the plaintiff.
Issue No. 22 Whether the suit has not been properly valued for the purpose of Court fees and jurisdiction?OPD The onus to prove this issue was on the defendant and defendant has failed to discharge the said onus by producing any evidence before the Court. Accordingly,, this issue is decided in favour of the plaintiff.
Issue No.3 3 Whether the suit is barred by limitation?OPD The onus to prove this issue was on defendants. The defendants claim that they are the owners and in possession of suit property since 1953 and the present suit has been Suit No. 606912/16 The New Friends Co-operative Vs. Ramesh 12/17 filed in the year 1988 after a period of more than 35 years which is beyond the period of limitation of 12 years.
In the previous suit, plaintiff has claimed that defendants encroached upon the suit property and raised unauthorised construction a year back from 1978. In the present suit, plaintiff has based cause of action on the basis of encroachment and unauthorised construction by the defendants on the suit property in the year 1987. Though, defendants produced documents Mark A, Mark B, Mark C, Mark D, however, these documents remained unproved and as such can not be relied upon in support of the claim of the defendant that they are in possession since 1953. Accordingly, this issue is decided in favour of the plaintiff.
Issue No. 44 Whether the suit is barred u/o 2 Rule 2 CPC?OPD The finding to this issue has been returned in Issue No.
1. Issue No. 5 5 Whether the plaintiff concealed material facts from the Court?OPD In the present suit plaintiff has failed to disclose that plaintiffs has filed an earlier suit No. 693/1996/78 against defendant No. 1 & 2 with respect to suit property which was decided on 04.02.2002. Plaintiffs were required to disclose the said fact in the present suit and failure on their part to do so amounts to suppression of material facts. Accordingly, this Suit No. 606912/16 The New Friends Co-operative Vs. Ramesh 13/17 issue is decided in favour of defendant.
Issue No. 66 Whether the plaintiff has no locus-standi to file the present suit?OPD Defendant could not produce any evidence to prove that plaintiff has no locus standi to file the present suit as onus to prove this issue is upon the defendant. Accordingly, this issue is decided against the defendant.
Issue No. 77 Whether the plaintiff is lessee of the suit land measuring 273.3 / 1/3 sq yds comprising in Khasra No. 26/1 situated in the Revenue Estate of Village Khizabad, Delhi?OPP Plaintiff has claimed that the plaintiff's society taken the chunks of the land by Government by means of an agreement dt. 13.02.1963 which is Ex. PW-3/A. PW-3 proved the document Ex. PW-3/A which is an agreement dt. 13.02.1963. PW-4 proved the registration certificate of the plaintiff's society which is Ex. PW-4/A. It is claimed by the plaintiff that amongst other lands plaintiff is lessee of land bearing khasra No. 26/1 situated within the Revenue Estate, Village Khizrabad and the suit property was lying vacant and the remaining land in Khasra No. 26/1 was allotted to various members of the society. The documents filed by plaintiff substantiates the fact that Khasra No. 26/1 has been mentioned in the schedule of Ex. PW-3/A. Suit No. 606912/16 The New Friends Co-operative Vs. Ramesh 14/17 Although,DW-1 produced documents Ex.DW-1/A which is Jamabandi of Village Khirjabad showing in Column No. 3 cultivator as Randhir Singh s/o Mohar Singh, K.K Mehta s/o Sh. S.L Mehta, Ex. DW-1/B is in Urdu Language and as per testimony of DW-1, same is khasra girdawari of Khasra No. 26/1 pertaining to kharif 2012 to Rabi 2016 but same does not confer any ownership title upon the defendant. Further, the documents pertaining to the ownership of the suit property which is Mark A, Mark B, Mark C and Mark D could not be proved in accordance with law. Accordingly, the documents produced by the plaintiff support its claim of being lessee of the suit property. This issue is decided in favour of the plaintiff.
Issue No. 88 Whether the deceased defendant No. 2 was the owner of the suit land, if so, its effect?OPD Both defendant No. 1 & 2 were proceeded ex-parte and as such no evidence has come on behalf of defendant No. 2 which could establish that defendant No. 2 was the owner of the suit land. Accordingly, this issue is decided in favour of the plaintiff.
Issue No. 99 Whether the defendant No.1 to 3 had encroached upon the suit land in April, 1987?OPP The onus to prove this issue was upon the plaintiff. No Suit No. 606912/16 The New Friends Co-operative Vs. Ramesh 15/17 evidence has been brought by the plaintiff that defendants No. 1 to 3 encroached the suit land in April, 1987. Record shows that similar plea was taken by the plaintiff in the previous suit filed in the year 1978. Accordingly, this issue is decided against the plaintiff.
Issue No. 1010 Whether the defendant No. 4 raised unauthorised construction without knowledge and consent of the plaintiff company over the suit land?OPP The onus to prove this issue was upon the plaintiff. No evidence has been brought by the plaintiff that defendant No. 4 raised unauthorised construction over the suit property. Accordingly, this issue is decided against the plaintiff.
Issue No. 1111 Whether the plaintiff is entitled to a decree of possession in respect of land measuring 273.3 / 1/3 sq yds forming part of Khasra No. 26/1 in the Revenue Estate of Village Khizabad, Delhi as shown in red in the site plan?OPP Since the suit of the plaintiff is barred by provision of Order II Rule 2 CPC, plaintiff is not entitled to a decree of possession. This issue is decided against the plaintiff.
Issue No. 1212 Whether the plaintiff is entitled to the relief of mandatory injunction,as prayed?OPP Since the suit of the plaintiff is barred by provision of Suit No. 606912/16 The New Friends Co-operative Vs. Ramesh 16/17 Order II Rule 2 CPC, plaintiff is not entitled to a decree of mandatory injunction. This issue is decided against the plaintiff.
Issue No. 1313 Relief In view of the aforesaid discussions, the suit of the plaintiff is dismissed being barred by provision of Order II Rule 2 CPC.No orders as to cost. Decree sheet be prepared Digitally signed accordingly. File be consigned to record. by PANKAJ SHARMA PANKAJ Date:
Announced in the Open Court SHARMA 2019.01.17 16:13:41 today i.e. 31.01.2019 +0530 (Dr. Pankaj Sharma) CJ (West)III THC/Delhi 31.01.2019 Suit No. 606912/16 The New Friends Co-operative Vs. Ramesh 17/17