Delhi District Court
Rai Singh vs . Mohd. Saleem & Ors. on 8 April, 2013
Rai Singh Vs. Mohd. Saleem & Ors.
IN THE COURT OF ADDITIONAL DISTRICT JUDGE03 (SOUTH),
ROOM NO.308, SOUTH DISTRICT, SAKET, NEW DELHI
In the matter of
RCA No. 24/11
Sh. Rai Singh @ Fauji S/o. Late Sh. Ram Kala
R/o. 122, Saidul Ajaib, New Delhi.
.... Appellant
Versus
1. Mohd. Saleem S/o. Sh. S. Main
R/o. S72/A29, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110 030.
2. Smt. Mehru Nisa W/o. Sh. Bikau Main
R/o. S72/A53, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110 030.
3. Smt. Chanderwati W/o. Sh. Kallu Masi (now deceased)
Through her Legal Heirs :
(i) Shri Kallu (husband)
(ii) Shri Rajesh (son)
(iii) Shri Ravi (son)
(iv) Ms. Rajni (daughter)
(v) Ms. Rama (daughter)
RCA 24/11 Page 1 of 12
Rai Singh Vs. Mohd. Saleem & Ors.
All R/o. S72/A/6, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110030.
4. Sh. Gajraj Singh S/o. Sh. Sani Lal
R/o. S72/A5, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110030.
5. Sh. Mam Chand S/o. Sh. Khacheru
R/o. S72/A025, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110030. (Not summoned)
6. Sh. Ram Dass S/o. Sh. Khacheru
R/o. S72/A75, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110030.
7. Sh. Munshi Lal S/o. Sh. Khem Chand
R/o. S72/A22, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110030. (Not summoned)
8. Smt. Reshmi S/o. Sh. Swaran Singh
R/o. S72/A61, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110030. (Not summoned)
RCA 24/11 Page 2 of 12
Rai Singh Vs. Mohd. Saleem & Ors.
9. Sh. Mahesh Kumar S/o. Sh. Ram Prit
R/o. S72/A122, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110030.
10. Sh. Mohd. Nayim S/o. Mohd. Hussain Mian
R/o. S72/A21, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110030. (Not summoned)
11. Sh. Mohd. Jamal S/o. Mohd. Ibrahim
R/o. S72/A20, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110030.
12. Sh. Ram Ugagar S/o. Sh. Babu Lal Yadav
R/o. S72/A13, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110030.
13. Sh. Ram Avatar S/o. Sh. Krishan Lal
R/o. S72/A23, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110030.(Not summoned)
14. Sh. Jule Khan Khatoon W/o. Sh. Sultan
R/o. S72/A30, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110030.
RCA 24/11 Page 3 of 12
Rai Singh Vs. Mohd. Saleem & Ors.
15. Smt. Rabia Khatoon W/o. Sh. Nasir Mohd.
R/o. S72/A18, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110030.
16. Smt. Khatoon W/o. Sh. Saleem
R/o. S72/A26, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110030.
17. Sh. Rajdev S/o. Sh. Ram Kumar
R/o. S72/A14, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110030.
18. Sh. Ghanshyam Paswan S/o. Sh. Sehdev Paswan
R/o. S72/A52, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110030. (Not summoned)
19. Smt. Hadisun Nisa W/o. Sh. Mohd. Idris
R/o. S72/A15 Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidulajab
New Delhi - 110030. (Not summoned) .....Respondents
Appeal Presented on : 23.09.2011
Date of Institution : 24.09.2011
Decision Reserved on : 13.03.2013
Date of Decision : 08.04.2013
RCA 24/11 Page 4 of 12
Rai Singh Vs. Mohd. Saleem & Ors.
JUDGMENT
(on appeal under section 96 of CPC) 1.1 (Introduction) The respondents 1 to 19 had filed Civil Suit No. 334/2000/1993 for permanent injunction that they have been residing in the jhuggis (its number enumerated against their names and mentioned in the array of appeal), many years ago after constructing the jhuggis with their meager funds in Indira Gandhi Camp, Saidul Ajaib, M.B. Road, New Delhi, and to restrain the defendants from dispossessing them from their respective jhuggi by way of decree of permanent injunction. The Delhi Administration has assigned the jhuggi numbers and they have been issued the ration cards. The land underneath the jhuggis belong to the Government of India. The defendant no.1 and also the defendant no.2 being agent of defendant no.1 have not only threatened the respondents/plaintiffs on 01.02.1993 to vacate the jhuggis but also to accept Rs. 10,000/ for each of jhuggi. Similar threat was extended on 11.02.1993 to vacate the jhuggis, failing which the same will be burnt and respondents will be murdered. Beatings were also given to many of the respondents. Then suit was filed.
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2. The appellant/defendant no.1 had filed his written statement and opposed the suit that the respondents were tenants of appellant/defendant no.1 but they became unauthorised occupants after termination of tenancy by notice dated 08.12.1993. The appellant is absolute owner of the property and the property falls on Khata no. 33/50, Killa no. 28, admeasuring 5 acres and 7 biswa and the jhuggis fall on the portion falling in his share. The property was belonging to 8 persons, however, the jhuggis are on the land belonging to the appellant (in appeal it is further explained that there was a family partition amongst Sh. Ram Kalan, Sh. Chote Lal and Sh. Sher Singh in 1970 and according to such family partition, an area about 2300 sq. yds. fell to the share of Sh. Ram Kishan and Sh. Chote Lal, the remaining area came to the share of Sh. Sher Singh. The appellant is son of Sh. Ram Kalan). The appellant had denied allegations of suit that neither there was any threat extended on 01.02.1993 or 11.02.1993 as alleged nor any inducement of money was given nor any threat to burnt the jhuggis or to kill the respondents. Since the property belongs to the appellant, many of the plaintiffs (i.e. no. 2, 7, 8, 9, 10, 13, 14, 18 and 19) had vacated the jhuggi and gave its peaceful possession to the appellant/defendant no.1. The other respondents/plaintiffs failed to pay any heed to the request of appellant. RCA 24/11 Page 6 of 12 Rai Singh Vs. Mohd. Saleem & Ors.
3.1 The Trial Court framed following issues from the pleadings of the parties :
(i) Whether the suit is bad for misjoinder and nonjoinder of necessary parties? OPD.
(ii) Whether the suit has been filed without any cause of action? OPP.
(iii) Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for? OPP.
(iv) Relief.
3.2 In order to establish the case, the respondents (as per original Trial Court Record) examined plaintiff no.1 Mohd. Saleem as PW1, plaintiff no.2 Mehru Nisha as PW2, Plaintiff no. 3 Smt. Chander Wati as PW5, plaintiff no.4 Gajraj Singh as PW6, plaintiff no.6 Ram Das as PW7, plaintiff no.12, Ram Ugagar as PW3, plaintiff no.14 Julekha Khatoon as PW4, plaintiff no. 16 Smt. Khatoon as PW8, plaintiff no. 17's wife Smt. Shyam Kumari as PW 11 and then concluded the evidence. The appellant/defendant no.1 Sh. Rai Singh @ Fauji had appeared in the witness box as exclusive witness. Then, evidence was closed. 3.3 The Trial Court of Sh. S.K. Malhotra, (the then) Senior Civil Judge/Rent Controller (North), Delhi by judgment / decree dated 12.08.2011 RCA 24/11 Page 7 of 12 Rai Singh Vs. Mohd. Saleem & Ors.
decreed the suit in favour of all the respondents / plaintiffs and against the present appellant / defendant no.1 and against Sh. Ishwar Das / defendant no.2 in the suit. Moreover, by order dated 02.09.1995, while disposing of respondents' application under Order XXXIX Rule 1 and 2 CPC, the then court of Civil Judge, Delhi also decreed the suit in favour of plaintiffs/respondents (other than plaintiff no.7, 8, 10, 13, 18 and 19) in terms of Order VIII Rule 10 CPC, directing to draw decree against defendant no.2. Although no decree was drawn, pursuant to order dated 02.09.1995. However, the decree has been drawn pursuant to judgment dated 12.08.2011 while disposing off the suit finally in favour of plaintiffs/respondent and against the appellant/ defendant no.1 and Sh. Ishwar Das / defendant no.2. The appellant /defendant no.1 is aggrieved by the impugned decree/judgment dated 12.08.2011.
4.1 In nutshell, the appellant requests that neither the respondents have any right in the land, belonging to the appellant nor respondents have title in the property, they are occupying it illegally. Neither the ration card ought to have been issued to the respondents nor the ration card is proof of title, the respondents had wrongly alleged that the land belongs to Government of India but it was not pleaded parties to the suit. There is no RCA 24/11 Page 8 of 12 Rai Singh Vs. Mohd. Saleem & Ors.
proof of alleged threat nor any threat was extended by the appellant, nor the said defendant no.2 was agent of appellant. The respondents could not establish their any right in the land, therefore, the suit has been wrongly decreed in their favour. Moreover, the plaintiff nos. 5,7,8,10, 13, 18 and 19 had vacated their jhuggis and handed over the possession of land underneath to the appellant, despite that the trial court had decreed the suit in their favour. The appellant had proved on record copies of agreement that amount of Rs. 10,000/ was paid as consideration of Malba left on the places of jhuggis by the plaintiffs no. 5,7,8,10,13,18,19, no cause of action was surviving against them. The Khasra Girdawari is also in the name of Predecessor in interest of the appellant. The Trial Court failed to appreciate the rights of appellant in the land, which is matter of revenue record visa vis the suit has been decreed in favour of respondents/plaintiffs despite they have no right or title in the said land. The impugned decree/judgment suffers from illegality, being contrary to facts, evidence and law. It is liable to be set aside. This is the substance of appeal and arguments while referring the record and also facts, which have already been reproduced in paragraph 2 above.
4.2 However, the respondents (i.e. no. 1,2, 3, 4, 9, 11, 12, 14, 15, 16 RCA 24/11 Page 9 of 12 Rai Singh Vs. Mohd. Saleem & Ors.
and 17, hereinafter referred as the contestant respondents ) and their counsel opposed the appeal that it is admitted case of appellant that the contestant respondents are in settled possession of the jhuggis in their possession, they cannot be dispossessed without the process of law. There is no merit in the appeal and the Trial Court has considered all aspects of facts and evidence on record, the findings have been rightly given. The law of land protects the possession, therefore, the appellant has no right to dispossess the contestant respondents either forcibly or without due process of law. The Khasra Girdawari does not show the name of appellant. No rights have accrued in favour of appellant, on the eve of decree of suit in favour of respondents / plaintiffs and against the defendants in suit. The appeal is liable to be dismissed. 5.1 ( Findings ) The contentions of both sides are assessed, in the light of material on record, inclusive of the oral testimony and other record in the Trial Court file.
5.2 It is concluded in paragraph 9 of the impugned judgment that suit has also been decreed for permanent injunction in respect of property/jhuggi bearing no. S72/A025, S72/A22, S72/A61, S72/A21, RCA 24/11 Page 10 of 12 Rai Singh Vs. Mohd. Saleem & Ors.
S72/A23, S72/A52, S72/A15 qua respondents / plaintiffs no. 5, 7, 8, 10, 13, 18, 19, whereas such plaintiffs had vacated the respective jhuggis by handing over its possession to the appellant / defendant no.1. Since, the respondents / plaintiffs no. 5, 7, 8, 10, 13, 18, 19 were not in possession of the aforementioned jhuggis, there was no occasion for decree of permanent injunction against the appellants, therefore, to that extent decree of Trial Court is set aside.
5.3 Now the, case of appellant is being considered in respect of contestant respondents/plaintiffs (i.e. other than respondents / plaintiffs no. 5, 7, 8, 10, 13, 18, 19). After analysing the material on record, the findings given by the Trial Court on issue no. 1, 2 and 3 are confirmed for the following reasons also:
(i) The possession of contestant respondents of their respective jhuggis is not only matter of evidence on record, but also admitted case of appellant,
(ii) The contestant respondents are in settled possession, they cannot be dispossessed without due process of law.
(iii) The Civil rights of the parties are determined on the basis of preponderance of probabilities, which are in favour of contestant RCA 24/11 Page 11 of 12 Rai Singh Vs. Mohd. Saleem & Ors.
respondents/plaintiffs, the trial court has also considered and appreciated the material on record,
(iv) There is nothing to perverse the findings returned on the issues as contentions of appellant visavis the evidence of parties have also been analysed and considered by the Trial Court.
Hence, the appeal is dismissed qua the contestant respondents. Both parties will bear their own costs. The decree sheet be drawn in terms of setting aside of a decree in respect of respondents / plaintiffs no. 5, 7, 8, 10, 13, 18, 19 (qua jhuggis S72/A025, S72/A22, S72/A61, S72/A21, S72/A23, S72/A52, S72/A15 ) and also in respect of dismissal of the appeal qua contestant respondents (i.e. nos. 1, 2, 3, 4, 6, 9, 11, 12, 14, 15, 16, 17). Copy of this judgment be certified to the Trial Court alongwith TCR.
File is consigned to record room.
Announced in the open Court (Inder Jeet Singh)
th
on 18 Chaitra, Saka 1935 Additional District Judge 03,
South District, Saket Courts,
New Delhi / 08.04.2013
S
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