Delhi District Court
Sh. Arun Kumar vs Smt. Archna Devi on 21 April, 2022
IN THE COURT OF SH. DHIRENDRA RANA,
SCJ CUM RC (NORTH), ROHINI COURTS, DELHI.
In the matter of :
Sh. Arun Kumar
S/o Sh. Sohan Lal
Aged about 51 years
R/o 126, Ram Gali No. 3,
Near Bhatia Bhawan,
Raja Park, Jaipur. ........... Plaintiff
VERSUS
1. Smt. Archna Devi
W/o Sh. Rajinder Kumar
R/o M543, J. J. Colony,
Shakur Pur, Delhi110034.
2. Sh. Jagram Singh
A.C.P. (Retired) (Exparte vide order dated 19.09.2018)
3. S.H.O.
P. S. Shahbad Dairy, Delhi (Exparte vide order dated 19.09.2018)
4. Unknown Senior Police Officer .......... Defendants
JUDGMENT
CNR No. DLNT030021152017
Case No. 1230/2017
Under Section Suit for Permanent Injunction
Date of Institution 16.10.2017
Date of Final Order 21.04.2022
Final Order Dismissed
CS No. 1230/2017 Arun Kumar Vs. Archana Devi 1/12
BRIEF FACTS
The present suit is for Permanent Injunction filed by the plaintiff against the defendants.
Plaintiff's Case Succinctly stated facts as mentioned in the plaint are as under:
1. It is the case of the plaintiff that plaintiff is General Power of Attorney holder of Sh. Dinesh Golcha c/o Bhandari Jeweller, M. I. Road, Jaipur Rajasthan, who is owner of land measuring 1 bigha 12 biswa out of Khasra No. 37/5 situated at Village Prehladpur Banger, Delhi. On 05.01.1993, Sh. Dinesh Golcha transferred all his rights with respect to above said property in favour of plaintiff by way of GPA. Plaintiff appointed a care taker Sayar Chand s/o Late Sh. Daya Ram to look after plot No. 64B, measuring 50 sq. yds out of Khasra No. 37/5 falling in Jain Colony area of Village Prahlad Pur, Delhi and defendant No. 1 claimed herself as owner of plot No. D65 by showing false and fabricated photocopy of certain documents pertaining to plot No. D65. Defendant No. 1 alongwith defendant No. 2 wanted to grab the plot of plaintiff and forcefully enter into the premises of plot No. D64B to take the possession of the said plot. On 20.05.2015 at about 04:17 PM, defendant No. 1 entered into the premises for the purpose of dispossession of plaintiff and his care taker. Plaintiff called the police and both the parties were directed to appear before SHO concerned alongwith original papers of the plot, however, defendants failed to produce the original documents before SHO/IO. On 13.07.2015 at about 11:06 AM, defendant No. 1 alongwith defendant No. 2 forcefully entered into the plot of the plaintiff. Upon this care taker Shyar Chand, called the police. Police reached at the spot and again directed both the parties to reach PS Shahbad Dairy alongwith original documents, CS No. 1230/2017 Arun Kumar Vs. Archana Devi 2/12 however, defendants failed to produce the same with respect to plot No. D64 B and a complaint No. DD No. 7B dated 13.07.2015 registered in PS Shahbad Dairy. After one year i.e., on 13.07.2016, defendants again forcefully entered into the plot of plaintiff and matter was again reported to police, however, no action was taken due to the influence of defendant No.2, who is a retired ACP of Delhi Police. On 19.09.2017, defendants alongwith some other persons forcefully entered into the plot and tried to construct boundary wall into the open plot but after intervention of the police but defendants were stopped. On 20.09.2017 both defendants alongwith their muscle man again entered into the plot of the plaintiff to dispossess the plaintiff and his care taker and to grab the property. Care taker again called the police and showed the original documents of the property to IO at police station. However, defendant No. 1 and 2 were not called at PS at that time and no action was taken against the against the defendants. Hence, the present suit.
Defendants' Case
2. Written statement has been filed on behalf of defendant No.1 wherein it is stated that suit of the plaintiff is not maintainable and he has suppressed the material facts from the court. It is stated that no cause of action arose in favour of plaintiff. It is also stated that defendant No.1 purchased the property measuring 25 sq. Yds bearing No. D65B2, Jain Colony, Nanesh Enclave, Barwala, Delhi from Sh. Narender Singh s/o Sh. Ram Kanwar R/o 321, Village Prehladpur Bangar, Delhi on 26.08.2009 against the sale consideration, who executed the documents in favour of defendant No. 1. It is stated that in the year 2011 when defendant No.1 dig the foundation of the plot, no one raised any objection but when the defendant No.1 started raising construction over the said plot in the year 2013, plaintiff CS No. 1230/2017 Arun Kumar Vs. Archana Devi 3/12 and his associates obstructed to raise any construction. The matter went upto the police, however, due to domestic circumstances, defendant No. 1 did not raise any construction over the plot. Thereafter, on 20.06.2015, defendant No. 1 started construction work over the said plot, however some 56 persons raised objection and stated that said plot belongs to Mr. Jain. Defendant No.1 informed that she purchased the plot measuring 25 sq. Yds from Sh. Narender Singh on 26.08.2009. Matter was reported to the police and defendant No. 1 produced the documents before enquiry officer. On 29.06.2015, defendant No. 1 gave a written complaint to Deputy Commissioner Police, Outer District Pushpanjali, Delhi and SHO PS Shahbad Dairy. Thereafter, enquiry was made and a case FIR No. 0328/16 dated 06.04.2016 under Section 420 IPC was registered in PS Shahbad Dairy and after registration of said FIR, plaintiff filed the present suit. All the allegations levelled by the plaintiff have been denied in toto.
3. Replication has been filed on behalf of plaintiff to the WS filed on behalf of defendant No. 1 and assertions made in the written statement have been denied by the plaintiff.
4. Defendant No. 2 and 3 were proceeded exparte vide order dated 19.09.2018.
Issues
5. After completion of pleadings, vide order dated 14.08.2018, the following issues were framed by my learned Predecessor for trial :
1. Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP CS No. 1230/2017 Arun Kumar Vs. Archana Devi 4/12
2. Whether the suit of the plaintiff is without any cause of action?
OPD
3. Relief.
Plaintiff's Evidence
6. The plaintiff has examined himself as PW1, who in his affidavit in evidence Ex. PW1/A has stated and reiterated on oath the contents of the plaint. He has relied upon certain documents. Ex. PW1/1 (OSR) as copy of Sale Deed, Ex. PW1/2 (OSR) as copy of Khatoni, Ex. PW1/3 (OSR) as copy of GPA, Ex. PW1/4 (OSR) as copy of police complaint dated 13.07.2015, Ex. PW1/5 as site plan and Ex. PW1/6 (OSR) as copy of map of colony.
7. PW2 is Shyar Chand. He exhibited his evidence by way of affidavit as Ex. PW2/A and relied upon documents exhibited by PW1 as Ex. PW1/1 to Ex. PW1/6.
8. Thereafter, plaintiff evidence was closed on 15.04.2019 and the case was fixed for defendant evidence.
Defendant's Evidence
9. DW1 is Archna Devi, who in her affidavit in evidence Ex. P1 has stated and reiterated on oath the contents of the written statement. She has relied upon documents: Ex. DW1/1 (OSR) as copy of GPA dated 26.08.2009, Ex. DW1/2 (OSR) as copy of agreement to sell dated CS No. 1230/2017 Arun Kumar Vs. Archana Devi 5/12 26.08.2009, Ex. DW1/3 (OSR) as copy of affidavit dated 26.08.2009, Ex. DW1/4 (OSR) as copy of receipt dated 26.08.2009, Ex. DW1/5 (OSR) as copy of possession letter dated 26.08.2009, Ex. DW1/6 (OSR) as copy of registered Will dated 26.08.2009, Mark A as GPA, Agreement to Sell, Affidavit, Receipt and Will all dated 17.03.1993 executed by Sh. Arun Kumar in favour of Sh. Shyam Sunder, Mark B as GPA, Agreement to Sell and Purchase, Affidavit, Receipt and Deed of Will all dated 19.06.1997 executed by Sh. Shyam Sunder in favour of Sumit Sinha, Mark C as Agreement to Sell, GPA, Affidavit, possession letter, receipt all dated 23.06.2009 executed by Sh. Sumit Sinha in favour of Sh. Manoj Sharma, Mark D as GPA, deed of sale agreement, affidavit, receipt, possession letter and deed of Will all dated 14.07.2009 executed by Sh. Manoj Sharma in favour of Sh. Narender Singh, Ex. DW1/7 as complaint dated 29.06.2015, Ex. DW1/8 copy of complaint dated 06.04.2016 (de exhibited as Mark X).
10. DW2 is Mahender Kumar, who exhibited his affidavit in evidence as Ex. DW2/A. He admitted his signature and thumb impression on documents Ex. DW1/1 to Ex. DW1/5 at point A1 to A5.
11. DW3 is Mahender Kumar, Data Entry Operator, SubRegistrar VI A, Pitampura, Delhi. He has brought the original Will dated 26.08.2009 Ex. DW1/6.
CS No. 1230/2017 Arun Kumar Vs. Archana Devi 6/12
12. DW4 is Narender. He has identified his signatures on documents Ex. DW1/1 to Ex. DW1/6 at point A to O.
13. Thereafter, defendant evidence was closed vide order dated 22.12.2021 and the matter was fixed for final arguments.
14. I have heard arguments addressed by both the parties and perused the judicial record.
Now I shall give my issuewise findings.
Issue No. 1: Whether the plaintiff is entitled to a decree of permanent injunction, as prayed for? OPP
15. The onus to prove this issue was on plaintiff. It is the case of the plaintiff that plaintiff is a GPA holder on behalf of Sh. Dinesh Golcha who has purchased land measuring 1 bigha 12 biswa in khasra no. 37/5, Village Prehladpur Bangar. Dinesh Golcha executed a GPA in favour of plaintiff on 05.01.1993 and transferred all his rights w.r.t. the suit property. It is alleged by the plaintiff that defendant no. 1 claimed herself as owner of plot no. D65 on the basis of forged and fabricated documents and she is trying to grab the plot of the plaintiff claiming that 25 sq. Yards in west side of plot no. D64 B is her property and many times she tried to enter the property forcefully on 13.07.2015, 13.07.2016 and 19.09.2017, 20.09.2017 and 07.10.2017 but she could not succed in doing so. On the other hand, defendant has claimed ownership and possession of the suit property on the basis of unregistered GPA and other documents and claimed that she had purchased 25 sq. yards plot bearing no. D65 B2, Jain Colony from Sh. Narender Singh. During her crossexamination, she had addmitted that ownership documents do not bear CS No. 1230/2017 Arun Kumar Vs. Archana Devi 7/12 her thumb impressions or signatures. She admitted that she did not purchase the suit property from the plaintiff. She also admitted that she got lodged an FIR u/s 420 IPC on account of fraud committed with her during the purchase of this plot. Therefore, the whole defence of the defendant is dependent upon the title and ownership of Narender Singh from whom she allegedly purchased the property. Narender Singh also appeared as witness as DW4 and he deposed that he sold the suit property to the defendant and also handed over the posssession. During his crossexamination, he stated that he is not aware whether defendant had signed the ownership documents or not. Same was his reply regarding thumb impressions on ownership documents. He stated that he had purchased 100 sq. yards from one person namely Manoj and he further sold 25 sq. yards out of that 100 sq. yards to the defendant. He also admitted that he does not have complete chain of the ownership of the property starting from the original owner of the land. He admitted that he was arrested in FIR No. 328/16 which is Ex.DW1/A. He stated that he had purchased suit property from Arun Jain but he could not produce any documents in support of this assertion. The inefficiency of DW4 Narender to produce any document has been taken care of by DW1 Archana Devi. She has placed on record Mark A i.e., GPA and other documents dated 17.03.1993 executed by Sh. Arun Kumar in favour of Sh. Shyam Sunder. She also produced Mark B which are same set of unregistered ownership documents dated 19.06.1997 executed by Sh. Shyam Sunder in favour of Sh. Sumit Sinha, Mark C are also set of unregistered ownership document dated 23.06.2009 executed by Sh. Sumit Sinha in favour of Sh. Manoj Sharma and Mark D i.e., unregistered ownership documents dated 14.07.2009 executed by Sh. Manoj Sharma in favour of Sh. Narender Singh. Therefore, DW1 has placed on record entire chain of documents may be in the form of photocopy and same are being marked but there is not even a single suggestion from the CS No. 1230/2017 Arun Kumar Vs. Archana Devi 8/12 side of plaintiff that plaintiff did not execute unregistered ownership documents in favour of Shyam Sunder on 17.03.1993. There is a complete silence on the part of the plaintiff in this regard and that has assumed significance to the effect that chain of documents with regard to ownership placed on record by DW1 are highly probable and can be relied upon.
16. Now the next question before the court is who is in the possession of the suit property. A local commissioner was appointed vide order dated 17.01.2018 and she had filed her report and the relevant portion of the report is here as under:
"After seeing the site and asking queries from both the parites regarding earlier construction on the plot, it was mutually agreed by both parites that the construction work was done by defendant no. 1, Archana Devi and six blocks of iron rods and two feet wall at west side of the plot were construction by defendant no. 1. I also recorded statement of neighbours of the locality and also asked specific question about the disputed plot in question. Everyone told that the construction work was done by defendant no. 1, but plot belongs to one Jain Saheb who is later on known that it is plaintiff. ............................... It is clear from the statement of neighbours and witnesses as well as public present at cite and also from versions of both the parites that the plot in question in dispute is under the possession of the defendant no. 1 (Smt. Archana Devi)."
My Ld. Predecessor dismissed the application of the plaintiff under Order XXXIX Rule 1 & 2 CPC after considering the report of the local comissioner as well as objections filed by the plaintiff.
CS No. 1230/2017 Arun Kumar Vs. Archana Devi 9/12
17. Ld. counsel for the defendant has argued that it is crystal clear from the report of local commissioner that it is defendant no. 1 who is in possession of the property in question. On the other hand, it is argued by Sh. Arun Kumar Khatri, Ld. Counsel for plaintiff that report of local comissioner cannot be considered by the court as the same has not been exhibited during evidence. As discussed earlier, my Ld. Predecessor had considered the report of Local Commissioner and objections filed by the plaintiff while deciding the application under Order XXXIX Rule 1 & 2 CPC. The report of Local Commisisoner has not been challenged by the plaintiff till date and while doing so plaintiff has admitted the correctness and authencity of the report. A fact which has been admitted by the party need not to be proved by the opposite party. Therefore, I do not find any strength in the argument putforth on behalf of the plaintiff that report of local commissioner cannot be read and considered by the court while deciding the suit. The report of local commissioner has categorically concluded that possession of the suit property is with defendant no. 1 and not with plaintiff. Then defendant no. 1 was already in possession of the suit property at the time of filing of the suit then relief of permanent injunction restraining her from dispossessing the plaintiff, hardly arises. Therefore, suit of the plaintiff is not maintainable due to fact that possession of the suit property lies with defendant no. 1. This fact came to the knowlege of the plaintiff after filing of WS and thereafter, through report of local commissioner but plaintiff did not amend his suit and did not add the relief of possesion to make it a comprehensive suit. Ld. Counsel for the defendant has rightly drawn attention of the court that suit of the plaintiff is hit by ratio laid down by Hon'ble Supreme Court in Anathula Sudhakar Vs. P. Buchi Ready & Ors. Appeal (Civil) 6191/2001 decided on 25.03.2008. It was held by Supreme Court as under:
CS No. 1230/2017 Arun Kumar Vs. Archana Devi 10/12 "11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession."
18. The case of the plaintiff is squarely covered by Anathula Sudhakar's case and plaintiff had to file a suit for possession with consequential relief of possession against the defendant. Without seeking the relief of possession, simipliciter suit for injunction is not maintainable. Accordingly, considering the above discussion and settled law this court is of the considered view that plaintiff has failed to prove this issue in his favour and issue is decided against the plaintiff and in favour of defendant.
Issue No. 2: Whether the suit of the plaintiff is without any cause of action? OPD
19. The onus to prove this issue was on defendant. Defendant has proved that possession of the suit property at the time of filing of suit was with her and not with plaintiff. As discussed earlier, the admission on the plaintiff w.r.t the correctness of the local commissioner's report has played the spoil sport in the story of the plaintiff that he was under an immient danger to be dispossessed by defendant no. 1. When defendant was in possession of the suit property then suit of the plaintiff is also bad for want of cause of action. Accordingly, this issue is decided in favour of the defendant and against the plaintiff.
CS No. 1230/2017 Arun Kumar Vs. Archana Devi 11/12
Relief
20. Keeping in view the decision of issue No. 1 and 2 and material available on record, suit of the plaintiff is dismissed. No order as to costs. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Digitally signed by DHIRENDRADHIRENDRA RANA Announced in the Open Court on 21.04.2022 RANA Date:
2022.04.21 16:46:07 +0530 (DHIRENDRA RANA) SCJcumRC(North), Rohini, Delhi.
CS No. 1230/2017 Arun Kumar Vs. Archana Devi 12/12