Delhi District Court
Bharat Singh vs Karnail Singh 1/27 on 6 June, 2020
IN THE COURT OF DR. SUDHIR KUMAR JAIN
DISTRICT & SESSIONS JUDGE, NORTH-EAST
KARKARDOOMA COURTS, DELHI
CS 476517/15
CNR NO.DLNE01-000484-2014
BHARAT SINGH
S/O LATE BUDH SINGH
R/O E-1, GALI NO 6
SADAT PUR EXTENSION
DELHI-110094 .... PLAINTIFF
V
1. KARNAIL SINGH
S/O LATE BUDH SINGH
R/O KHASRA NO 156
VILLAGE CHAUHAN PATTI
DELHI-110094
2. LAXMI
W/O SH. KARNAIL SINGH
R/O VILLAGE CHAUHAN PATTI
DELHI-110094
.... DEFENDANTS
INSTITUTION: 02.04.2014
ARGUMENTS: 21.01.2020
JUDGMENT:06.06.2020 SUIT FOR DECLARATION, POSSESSION, MANDATORY AND PERMANET INJUNCTION JUDGMENT
1. The plaintiff initially filed the present suit for declaration, possession, mandatory and permanent injunction. The plaintiff subsequently gave up relief of declaration vide proceedings dated 16.08.2017. The plaintiff pleaded as under:-
CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 1/27 Arjun Singh S/O Sukhdev Singh who expired on 05.04.1992 during life time partitioned his properties among sons namely Budh Singh, Dhum Singh, Om Parkash, Shyam Singh, Subey Singh and Gaje Singh and original documents of partition were kept by Gaje Singh under his custody. Budh Singh was given property measuring 180 sq. yards situated in Khasra No. 156, Village Chauhan Patti, Delhi (hereinafter referred to as "property in issue"). Budh Singh expired in the year 1991 i.e. during life time of Arjun Singh. The wife of Budh Singh expired in the year 1983. Budh Singh was having four sons namely Bharat Singh (the plaintiff), Karnail Singh (the defendant no 1), Jarnail Singh and Balraj Singh and three daughters Bharpai, Bimlesh, Nirmala, Jarnail Singh and Bimlesh had died during life time of Budh Singh. Bharpai and Nirmala after marriage are settled in their matrimonial homes. The plaintiff, the defendant no. 1 and Balraj Singh are real brothers and the defendant no. 2 is the wife of the defendant no. 1. The property in issue was divided among the plaintiff, the defendant no 1 and Balraj in equal shares i.e. 60 sq. yards to each of them and their respective shares are shown in red, green and yellow colour in site plan. The defendant no. 1 after raising construction in his share is residing therein. The plaintiff came to his share as shown in red colour in site plan (hereinafter referred as "the suit property") on 16.05.2013 and 22.05.2013 to raise constructions thereon but the defendants quarreled with the plaintiff and created hindrance in constructions. The plaintiff made written complaint to local police but police did not take any action against the defendants. The defendant no 1 did not produce any title document in his favour regarding the suit property. The plaintiff never executed any document for transferring the suit property in favour of the defendants. The plaintiff filed a suit for declaration and permanent injunction titled as Bharat Singh V Karnail Singh bearing no CS 162/13 on 03.06.2013 which was assigned to the Court of Ms. Shuchi Laler, Civil Judge, Delhi. The defendants in the month of August, 2013 have encroached on the suit property and raised a tin shed on half portion of the suit property and also broke wall opening towards the suit property. The plaintiff reported the matter to the police station but without any result. The plaintiff filed an application under Order XXXIX Rules 1 & 2 read with section 151 CPC on 29.08.2013 for anti-status quo which was dismissed. The plaintiff filed an appeal which was dismissed vide order dated 12.03.2014. Thereafter, the plaintiff withdrew the suit bearing no CS 162/13 on 19.03.2014 with liberty to file fresh suit on the same cause of action with relief of possession. The sisters of the plaintiff and defendant no. 1 have also CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 2/27 filed a suit for partition of the properties of Budh Singh which is pending disposal in the court. The plaintiff being aggrieved filed the present suit and prayed as under:-
a. to pass a decree of possession of the suit land as shown in red colour in the site plan in favour of the plaintiff and against the defendants qua the property measuring 60 sq. yards situated in Khasra No. 156, situated at Village Chauhan Patti, Delhi.
b. to pass a decree of mandatory injunction in favour of the plaintiff and against the defendants directing thereby to remove the tin shed and obstacle, temporary structure and close the door open in the mid of the property i.e. wall of the defendants of their property qua the property measuring 60 sq. yards situated in Khasra No. 156, situated at Village Chauhan Patti, Delhi.
c. to pass a decree of permanent injunction in favour of the plaintiff and against the defendants restraining the defendants their associates, attorney, not to create third party interest and constructing the suit property measuring 60 sq. yards part of Khasra No. 156, situated in Village Chauhan Patti, Delhi.
d. any other relief which this Hon'ble Court may fit and proper in favour of plaintiff and against the defendants may also be awarded. e. Cost of litigation may also be awarded in favour of the plaintiff and against the defendants.
2. The defendants contested claims of the plaintiff and filed written statement. The defendants in brief summary stated that property in issue measuring 180 sq. yards was purchased by the defendant no 2 in March, 2000 and since then the defendant no 2 is in peaceful possession of the property in issue. The defendant no 2 has lost documents pertaining to the property in issue in April, 2012 and the plaintiff taking advantage of the loss of documents pertaining to the property in issue filed the present suit with mala fide intention to grab the property of the defendant no 2. The defendants in the preliminary objections stated that the suit of the plaintiff is not maintainable as based on forged and fabricated documents. The plaintiff does not have locus standi to file the present suit as the plaintiff does not have valid title documents in his favour. The suit is liable to be rejected u/o VII Rule 11 CPC. The plaintiff could not get any relief from various courts.
The defendants on reply on merit stated that the defendant no 1 sold his share out of khasra no 167 to Balraj and Kamlesh widow of his brother Jarnail Singh. The defendant no 2 purchased property in issue from Tara Singh in March, 2000 for a sale consideration of Rs.54,000/-. Tara Chand purchased property in issue from Man Singh and Khem Chand and the CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 3/27 revenue records are still in their names. The defendants also denied other allegations of the plaintiff.
3. The plaintiff filed the replication wherein reasserted and reaffirmed his previous stand.
4. Vide order dated 03.07.2015, following issues were framed:-
1. Whether the plaintiff is entitled for decree of declaration as prayed in the suit? OPP
2. Whether the plaintiff is entitled for decree of possession as prayed in the suit? OPP
3. Whether the plaintiff is entitled for decree of mandatory injunction as prayed in the suit? OPP
4. Whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit? OPP
5. Relief.
Issue no 1 was ordered to be deleted vide order dated 16.08.2017.
5. The plaintiff examined him as PW1, Shyam Singh as PW2, Gaje Singh as PW3 and Surender Kumar, Sadar Kanungo, Tis Hazari Courts as PW4. The plaintiff as PW1 and PW2 Shyam Singh tendered their respective affidavits which are Ex.PW1/1 and Ex.PW2/A. PW2 Shyam Singh did not appear for cross examination. The plaintiff as PW1 relied on documents which are Mark A to Mark C and Ex.PW1/A to Ex.PW1/I. The plaintiff's evidence was ordered to be closed vide order dated 16.12.2016.
The defendants examined the defendant no 1 as DW1 and the defendant no 2 as DW2 who tendered their respective affidavits which are Ex.DW1/A and Ex.DW2/A. The defendant no 1 as DW1 relied on documents which are Ex. DW1/1 to Ex.DW1/14. The evidence of the defendants was ordered to be closed vide order dated 14.02.2019.
6. Sh. J. K. Tripathi, Advocate for the plaintiff and Sh. R. S. Maurya, Advocate for the defendants heard. The counsels for the plaintiff and the defendants also filed written arguments which are considered. Record perused.
ISSUE WISE FINDINGS ARE AS UNDER
ISSUE NO 2
Whether the plaintiff is entitled for decree of possession as
prayed in the suit? OPP
CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 4/27
7. Possession expresses the physical relation of control exercised by a person over a thing. Possession is protected as a part of the law of property. Possessory remedies are those which exist for the protection of possession. The Indian legislators have taken care of providing possessory remedies. Section 5 of the Specific Relief Act, 1963 deals with action for recovery of possession of specific immovable property based on title. The essence of this section is that whoever proves that he has a better title in a person is entitled to possession. The title may be on the basis of ownership or possession. The purpose of this section is to restrain a person from using force and to dispossess a person without his consent otherwise than in the due course of law.
8. Burden is on the plaintiff to prove that he is entitled for recovery of possession of the suit property as shown in red colour in site plan Ex.PW1/1. A burden of proof in civil trial is the obligation on the plaintiff that the plaintiff would adduce evidence that proves his claims against the defendant and is based on preponderance of the probabilities. Under Indian law, until and unless an exception is created by law, the burden of proof lies on the person making any claim or asserting any fact. A person who asserts a particular fact is required to affirmatively establish it. Chapter VII of the Indian Evidence Act, 1872 deals with burden of proof. The general principles of burden of proof are laid down in sections 101 to 103. Burden of proof has two meanings which are burden of establishing the case and the other is the burden of introducing the evidence. Relevant provisions of the Indian Evidence Act, 1872 dealing with burden of proof are produces as under:-
101. Burden of proof.--
Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.
102. On whom burden of proof lies.--
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
103. Burden of proof as to particular fact.--
CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 5/27 The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
106. Burden of proving fact especially within knowledge.--
When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
The Supreme Court in R.V.E. Venkatachala Gounder V Arulmigu Viswesaraswami & V.P. Temple & another, VI(2003)SLT307 observed that whether a civil or a criminal case, the anvil for testing of 'proved', 'disproved' and 'not proved', as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. A fact is said to be 'proved' when, if considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of a particular case, to act upon the supposition that it exists. It was observed in A. Raghavamma & another V Chenchamma & another, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. It was observed in Rangammal V Kuppuswami and others, Civil Appeal No 562 of 2003 observed that burden of proof lies on the person who first asserts the fact and not on the one who denies that fact to be true. The responsibility of the defendant to prove a fact to be true would start only when the authenticity of the fact is proved by the plaintiff. In Anil Rishi V Gurbaksh Singh, (2006) 5 SCC 558 it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues. This view was also accepted in M/S. Gian Chand & Brothers and Another V Rattan Lal @ Rattan Singh, (2013) SCR 601.
9. As per the plaintiff Arjun Singh, the predecessor in interest/grandfather of the plaintiff acquired land/property falling in Khasra no 156 from Ram Ricker vide Ex.PW3/B (Mark A), Hindi translation of which is Mark B. The counsel for the defendants argued that document Mark B is relied on by the plaintiff is Gift and Will which cannot exist together and its violate section 123 of Transfer of Property Act, 1882. Mark B is not registered as section 17(1) (a) of the Registration Act, 1908 and as such it cannot be read into evidence as per section 49, the Registration Act, 1908. Ex.PW3/B (Mark A) was not registered and is appearing to be executed in presence of many persons.
CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 6/27 It is reflected from Ex.PW3/B (Mark A) that it is a Gift Deed executed by Ram Ricker in favour of Arjun Singh in respect of portion of land forming part of Khasra no 156. It is not a Will. A Gift Deed is a document that record act of giving gift and is executed between the done i.e. the person giving the gift and the donee i.e. the person accepting the gift. Gifting should be a voluntary act. Gift should be accepted by done and should happen in the life of donor. Gifts involving immovable property should be registered and till registration of the gift deed is completed, the title does not pass on to the donee. As per section 123 of the Transfer of Property Act, 1882 a gift of immoveable property cannot pass any title to the donee if it is not registered. Any oral gift of immoveable property cannot be made in view of the provision of section 123 of the Transfer of Property Act, 1882. Even mere delivery of possession without written instrument cannot confer any title as observed in R.N. Dawar V Ganga Ram Saran Dhama, AIR 1993 Del 19. Relevant part of section 123 reads as under:-
123. Transfer how effected.--For the purpose of making a gift of immove-
able property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
As per section 49 of Registration Act, 1908 if any document is required to be registered under section 17 shall not be operative for creation of any right, title or interest in any immoveable property unless it is unregistered and cannot be admissible in evidence. A document required to be registered is not admissible into evidence under Section 49 of the Registration Act. Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act. A collateral transaction must be independent of, or divisible from, the transaction to affect which the law required registration. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose. In Rai Chand Jain V Chandra Kanta Khosla, AIR 1991 SC 747 it was observed that it is well settled that unregistered lease executed by both the parties can be looked into for collateral purposes. In Rana Vidya Bhushan Singh V Ratiram, 1969 (1) UJ 86 (SC) it was observed as under:-
CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 7/27 A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property.
Ex.PW3/B (Mark A) can be used for collateral purpose and it reflects and proved that Arjun Singh was given 1-1/4 bigha land out of Khasra no 156 by Ram Ricker. Ex.PW3/B (Mark A) was also acted on by Arjun Singh and his lineal descendant. There is no legal force in arguments that Ex.PW3/B (Mark A) being unregistered cannot be looked into evi- dence. Ex.PW3/B (Mark A) can be looked into for collateral purpose.
10. The counsel for the defendants argued that there is no presumption of genuineness of Ex. PW3/B (Mark A) being more than 30 years old as per section 90 of Evidence Act, 1872 and cited Baldeo Misir V Bharos Kunbi, AIR1925All537, Kapoor Chand V Lalchand & others, AIR1975Raj178, Purushamangalam Devaswon V Pyali & others, AIR1952Travencore- Cochin438 and Munshi Ram & others V Thakur Dass & others, AIR 1951Pepsu87.
If a document is produced before a court then as a general rule it execution must be proved as per law. Sometimes document is produced in the court after long time from date of ex- ecution and the time elapsed between the execution and the production of such document in the court may be so long that all persons in whose presence the document was executed night have died. If the method of proof according to general rule is strictly followed then document will re- main unproved. Section 90 of the Evidence Act, 1872 deals with such documents and is only dis- cretionary. Section 90 lays down that when a document purporting or proved to be 30 years old is produced in a court shall be presumed that it was duly executed and attested by the person by whom it purports to be executed and attested. Such documents should come from proper custody which means it was deposit with a person and in a place where, if authentic, it might naturally and reasonably be expected to be found. Proper custody also reflects that possession of document should not excite any fraud or suspicion. There is no presumption regarding truth of contents of such document. In Lakhi Baruah V Padma Kanta Kalita, AIR 1996 SC 1253 the plaintiff dis- puted execution of a sale deed by claiming that he was a minor on the date of its alleged execu- tion. The defendants argued that presumption of valid execution shall arise under Section 90 as document was more than 30 years old. It was negative by the High Court on the ground that orig- inal document was not filed but only a certified copy was filed, therefore, presumption un-
CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 8/27 der Section 90 shall not be affected. The Supreme Court observed that section 90 is founded on necessity and convenience. It is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature or execution of old documents after lapse of 30 years. In order to obviate such difficulties or improbabilities to prove execution of an old document Section 90 has been incorporated in Act, 1872 which has done away with the strict rule of proving of pri- vate document. Presumption of genuineness may be raised if the document in question was pro- duced in proper custody. However, it is the discretion of Court to accept presumption flowing from Section 90. Such discretion shall not be exercised arbitrarily and without being informed by reasons but shall be a judicial discretion. This decision was relied on by the Allahabad High Court in Dr. Jeevan Bahadur Samaddar V Govind Charan Samaddar & others, Second Appeal 234 of 2010 decided on 30th May, 2013. Ex. PW3/B (Mark A) was produced from cus- tody of PW3 Gaje Singh who was one of sons of Arjun Singh. PW3 Gaje Singh also produced original of Ex.PW3/A (Mark A). The production of Ex. PW3/B (Mark A) from custody of PW3 Gaje Singh does not smell any fraud, suspicion or manipulation. There is no evidence that Ex. PW3/B (Mark A) is a forged and fabricated document. Ex. PW3/B (Mark A) can be relied on to determine rights of the parties to suit.
11. The plaintiff contended that the property in issue measuring 180 sq. yards in Khasra no 156 is ancestral property and pleaded that his predecessor in interest/grandfather Arjun Singh during life time partitioned his properties including property/land forming part of Khasra no 156 among sons and out of partition Budh Singh, father of the plaintiff was also given property in issue mea- suring 180 sq. yards in Khasra no 156. The plaintiff to prove that property in issue measuring 180 sq. yards in Khasra no 156 is ancestral property deposed these facts in affidavit Ex.PW1/A besides deposing that Arjun Singh acquired the land/property measuring 1-1/4 bigha falling in Khasra no 156 from Ram Ricker in the year 1947 by way of Gift Deed cum Will Mark A. The plaintiff as PW1 was cross examined and in cross examination denied suggestions that Arjun Singh was not owner of Khasra no 156 or that documents pertaining to the properties of Arjun Singh including property in issue in Khasra no. 156 were fabricated after the death of Arjun Singh or that Ram Ricker had not executed any document in favour of Arjun Singh and due to this reason property situated in Khasra no 156 was not mutated in his name in Revenue Records. The plaintiff to corroborate his testimony examined one of the sons of Arjun Singh namely Gaje Singh as PW3 who in affidavit Ex.PW3/A deposed that the property situated in Khasra no156 CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 9/27 measuring 1000-1200 sq. yards was received by Arjun Singh from Ram Ricker in the year 1947 vide document Ex.PW3/B (Mark A). PW3 Gaje Singh also produced original register Ex.PW3/A maintained by Arjun Singh regarding partition of properties including property in Khasra no156 on 04.10.1990 among his sons. The property in issue measuring 180 sq. yards in Khasra no 156 came into share of Budh Singh. PW3 Gaje Singh in cross examination deposed that Ex.PW3/B (Mark A) relates to Will as well as gift. PW3 Gaje Singh denied the suggestions that Ram Ricker never executed any document in favour of Arjun Singh or that document Ex.PW3/B (Mark A) is forged and fabricated.
The defendants denied that property in issue measuring 180 sq. yards in Khasra no 156 is ancestral property. The defendant no 1 as DW1 in cross examination deposed that he had no knowledge that Ram Rickar executed a Will in favour of Arjun Singh in the year 1947.
12. Ancestral property is not defined in any of the legislations governing the inheritance and succession of property amongst the members of a family. Ancestral property is inherited up to four generations of male lineage and should have remained undivided throughout this period. Earlier only male members were having rights over the ancestral property. In Maktul V Mst. Manbhari and others, AIR 1958 SC 918 it was held that the only property that can be called ancestral property is property inherited by person from father, grandfather and great grandfather. Hindi translation Mark B of Ex.PW3/B (Mark A) is perused and perusal of Hindi translation Mark B reflects that Ram Rickar son of Ganwa Pandit gifted land measuring 1-1/4 bigha falling in Khasra no 156 to Arjun Singh on 12.03.1947 as deposed by PW3 Gaje Singh. There is no any other document placed and proved on record which can reflect mode of acquisition title of land measuring 1-1/4 bigha falling in Khasra no 156 by Arjun Singh from Ram Rickar except Ex.PW3/B (Mark A). There is no reason to disbelieve Ex.PW3/B (Mark A). The land measuring 1-1/4 bigha in Khasra no 156 does not fall in category of ancestral property rather it was self-acquired by the Arjun Singh. It has not become ancestral property even till acquired by legal hairs of Budh Singh who was one of sons of Arjun Singh.
13. Self-acquired property is purchased by an individual from his resources or any property acquired as a part of division of any ancestral property or acquired as a legal heir or by any testamentary document such as Will. Property being immoveable is a unique asset and its ownership is broadly determined by title documents. Property ownership is primarily established through a registered sale deed which is a record of the property transaction between the buyer CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 10/27 and seller. Other documents such as property tax receipts and survey documents may be used to establish ownership but these documents are not guaranteed title to the property and are only a record of the transfer of property. Property ownership is presumptive in nature and subject to challenge. The defendants as opposite to claims of the plaintiff alleged that the defendant no 2 purchased property in issue measuring 180 sq. yards in Khasra no 156 from Tara Singh in March, 2000 for a sale consideration of Rs.54,000/-. Tara Chand purchased property in issue from Man Singh and Khem Chand and the revenue records are still in their names. The defendant no 2 lost title documents in April, 2012 and the plaintiff filed the present suit after April, 2012 when he came to know about loss of documents. The suit property measuring 60 sq. yards as shown in red colour in site plan Ex.PW1/1 is part of property in issue. The defendants as such claimed that that the property in issue measuring 180 sq. yards in Khasra no 156 is self-acquired property of the defendant no 2. The counsel for the defendants argued that entire land measuring 6 bigha and 9 biswa falling in Khasra no 156 was transferred by Ram Ricker to his Girdhari who subsequently sold entire land falling in Khasra no 156 to Man Singh and brothers and their names was mutated in revenue record as reflected from Ex. DW1/2. The counsel for the plaintiff argued that the defendants made publication Ex. PW1/F in newspaper only after receipt of summons from court of Ms. Suchi Laler, Civil Judge.
14. The onus to prove was on the defendants to prove that property in issue measuring 180 sq. yards in Khasra no 156 is self-acquired by the defendant no 2 and as such the defendant no 2 is owner of property in issue measuring 180 sq. yards in Khasra no 156. The defendants to prove their case examined them and tendered affidavits Ex. DW1/A and DW2/A in evidence wherein deposed above mentioned facts. The defendant no 1 as DW1 in cross examination deposed that the defendants have constructed 120 sq. yards and the remaining portion measuring about 60 sq. yards was lying vacant. The defendant no 2 in cross examination deposed that Arjun Singh was not having any property in Khasra no 156. The defendant no 2 as DW2 denied the suggestion that she deliberately not disclosing the true facts regarding the property of Arjun Singh in Khasra no 156 or that she never purchased the property in issue from Tara Singh or that she did not pay Rs.54,000/- as sale consideration or that title documents were never lost. The plaintiff as PW1 in cross examination denied suggestions that that the title documents in favour of the defendant no. 2 in respect of property in issue were lost in 2012 or that the plaintiff tried to get benefit from loss of title documents in favour of the defendant no. 2 in respect of property in issue or that the CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 11/27 plaintiff tried to take forcible possession from the defendant no 2 or that property in issue in Khasra No. 156 was purchased by the defendant no. 2.
15. The defendants alleged that the defendant no 2 lost title documents in respect of property in issue measuring 180 sq. yards and to prove that the defendant no 2 lost title documents in April, 2012 proved copy of First Information Report under section 155 of the Code of Criminal Procedure, 1973 as Ex.DW1/8 which was lodged on 28.05.2013 i.e. after one year of alleged loss of title documents in respect of property in issue measuring 180 sq. yards in Khasra no 156. The counsel for the defendants relied on Basant Singh & others V Brij Raj Saran Singh & others, AIR1935PC132 wherein it was observed that if originals are not seen for many years then it is sufficient evidence for loss.
The defendants did not explain delay of more than one year in lodging Ex.DW1/8. The defendants also relied on Form P-4 Ex.DW1/2 for year 2013 in respect of Khasra no 156 which is in names of Man Singh and Khem Chand. The defendants as mentioned hereinabove alleged that they purchased property in issue measuring 180 sq. yards in Khasra no 156 from Tara Singh who purchased property in issue measuring 180 sq. yards in Khasra no 156 from Man Singh and Khem Chand. However Form P-4 Ex. DW1/2 is not sufficient to prove that property in issue measuring 180 sq. yards in Khasra no 156 was self-acquired property of the defendant no 2 being purchased from Tara Singh in March, 2000. The defendants neither in written statement nor in evidence pleaded or deposed that Ram Ricker transferred entire land measuring 6 bigha and 9 biswa in favour of his son Girdhar who subsequently sold said land to Man Singh and his brothers. These were material and relevant facts to find succession of land falling in Khasra no 156 and needed to be included in the pleadings. In Maria Margarida Sequeria Fernandes V Erasmo Jack de Sequeria, (2012)5SCC370, the Supreme Court laid stress on purity of pleadings in civil cases. It was observed that pleadings are extremely important in civil cases and in order to do justice, it is necessary to give all details in the pleadings. This view was again reaffirmed in A. Shanmugam V Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (2012)6SCC430. The defendants did not call Tara Singh as witness to prove that the defendant no 2 purchased the property in issue from him. The defendants even did not give details of title documents alleged to have been executed by Tara Singh in favour of the defendant no2. The concept of ownership is one of the fundamental juristic concepts common to all systems of law. Ownership is a relation of a person to an object CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 12/27 which is exclusive or absolute and ultimate. The person who stands in this relation is called the owner and he has a right of complete control and enjoyment of the object. Ownership is a right of dominium over the property. Ownership can be derived from a previous owner such as acquired by inheritance or gift or purchase etc. The defendants are in possession of property in issue measuring 180 sq. yards in Khasra no 156 but there is no document to prove that the defendant no 2 is owner of property in issue measuring 180 sq. yards in Khasra no 156. There is no evidence that the title documents in respect of property in issue measuring 180 sq. yards have ever been executed in favour of the defendant no2 or the defendant no2 was ever in possession of title documents. The defendants did not discharge onus by leading sufficient and concrete evidence to prove that the defendant no 2 is actual owner of property in issue measuring 180 sq. yards in Khasra no 156 being purchased from Tara Singh in March, 2000.
16. The law offers a partition action which can be initiated to divide the joint property into indi- vidual shares among the owners so that individual co-owner can move forward with his share in- dependently. The partition of property can be arranged on a voluntary basis if all owners agree to it. If the owners don't agree, an order passed on judicial principles can partition the property based on one owner's request. The issue in dispute between the plaintiff and the defendants is that as per the plaintiff Arjun Singh during his life time on 04.10.1990 partitioned his properties vide Ex.PW3/A among his sons including Budh Singh who out of partition was given property in issue measuring 180 sq. yards in Khasra no 156 and 100 sq. yards in Khasra no 167. The prop- erty in issue measuring 180 sq. yards in Khasra no 156 was divided among the plaintiff, the de- fendant no 1 and Balraj Singh in equal shares i.e. 60 sq. yards each vide Ex.PW3/D as shown in red colour, green colour and yellow colour respectively in site plan Ex.PW1/1. The counsel for the plaintiff argued that the plaintiff received his share measuring 60 sq. yards i.e. suit property as shown in red colour in site plan Ex.PW1/1 on basis of documents Ex.PW3/A to Ex.PW3/C being legal hair of Arjun Singh. The counsel for the plaintiff also relied on Mutual Settlement Ex.PW1/B and Settlement Ex.PW1/C among the defendant no 1, Balraj and Kamlesh widow of Jarnail Singh.
17. The plaintiff to prove his case examined him as PW1 and tendered affidavit Ex.PW1/A wherein deposed above facts and also deposed that the defendant no 1, Balraj and Kamlesh widow of Jarnail Singh further mutually settled regarding property measuring 100 sq. yards in Khasra no 167 vide Mutual Settlement Ex.PW1/B and documents Ex. PW1/C. The defendant no CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 13/27 1 out of this settlement got 120 sq. yards in property in issue measuring 180 sq. yards in Khasra no 156 and raised construction in said portion. The suit property i.e. portion measuring 60 sq. yards in property in issue in Khasra no 156 which came into share of the plaintiff was en- croached by the defendants. The plaintiff as PW1 in cross examination deposed that the compro- mise Ex.PW1/B was effected between the defendant no. 1, Kamlesh and Balraj and he also signed Ex.PW1/B. The plaintiff as PW1 denied suggestions that the defendant no1 did not enter compromise Ex.PW1/B or that compromise Ex.PW1/B was not signed by the defendant no 1 or that the signature of the defendant no 1 is forged one. The plaintiff to corroborate his testimony examined Gaje Singh as PW3 who is stated to be in possession of original document pertaining to partition of properties of Arjun Singh. PW3 Gaje Singh produced original register maintained by Arjun Singh regarding partition of properties falling in khasra no156 and 167 on 04.10.1990 among his sons, copy of which is Ex.PW3/A. PW3 Gaje Singh deposed that Arjun Singh also executed General Power of Attorney and other documents Ex.PW3/C (Mark C) in favour of his sons. Budh Singh expired in the year 1990 and thereafter partition of properties came into share of Budh Singh was effected among his children on 01.12.2002 vide Ex.PW3/D. The defendant no 1, Balraj and Kamlesh widow of Jarnail Singh also settled vide Mutual Settlement Ex.PW1/B. PW3 Gaje Singh in cross examination admitted that Khasra no are not mentioned in Ex.PW3/A but stated that Ex.PW3/A related to Khasra no 167 and 156. Ex. PW1/B was signed by him as a witness but date and place are not mentioned on Ex.PW1/B. PW3 Gaje Singh denied the suggestions that Ex.PW1/B is only related to Khasra no167 but stated that it is related to Khasra no167 and 156 or that portion A-A in Ex.PW1/B was incorporated subsequently but ad- mitted that Ex. PW1/B was executed between the defendant no.1 and Kamlesh and the plaintiff had no concern with Ex. PW1/B. The defendants denied that the plaintiff got the suit property measuring 60 sq. yards out of property in issue measuring 180 sq. yards in Khasra no 156. The defendant no 1 as DW1 in cross examination admitted that in the year 2002, a family settlement was arrived at in respect of the properties in Khasra no156 and 167 between him, Balraj, Bharat Singh and Kamlesh, wife of late Jarnail Singh which was reduced into writing. The settlement dated 12.07.2012 Ex.PW1/B bears his signature at point A and settlement dated 13.05.2013 Ex.PW1/C bears his photograph and signatures. The defendants have constructed 120 sq. yards and the remaining portion measuring about 60 sq. yards was lying vacant. The defendant no 2 in cross examination CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 14/27 deposed that Budh Singh was having property at Khasra no.167, Chauhan Patti but was not aware that he was having any property in Khasra no 156. The defendant no 2 as DW2 denied suggestions that the defendant no 1, Balraj and the plaintiff inherited the property measuring 180 sq. yards out of Khasra no 156 or that 180 sq. yards was shared by the plaintiff, the defendant no 1 and Balraj in equal shares.
18. The respective pleadings and evidence of the plaintiff and the defendants reflected that Arjun Singh partitioned his properties among his sons including Budh Singh vide Family Settlement Ex. PW3/A. The properties of Budh Singh in Khasra no 156 and 167 were partitioned/divided among his legal heirs vide Family Settlement Ex.PW3/D. The plaintiff and the defendant no 1 each got 60 sq. yards as their shares out of property in issue measuring 180 sq. yards in Khasra no 156. The defendant no 1, Balraj and Kamlesh further settled mutually vide Ex.PW1/B. Family Settlements Ex. PW3/A, Ex.PW3/D and Ex.PW1/B are not registered.
19. A family arrangement can be said to be is an agreement between members of the family for the benefit of the family either by compromising doubtful or disputed right or by preserving the family property by avoiding litigation. The family members make amicable settlement of the family disputes with assistance of well-wishers of the family to arrive at a settlement of their mutual rights and obligations to avoid protracted litigation and exposure to public gaze of private family disputes. Due to family arrangements disputes are avoided in the family besides safeguarding honor of the family. A family settlement or a family arrangement if found to be bona fide, voluntary, without coercion, influence, misrepresentation and stands acted upon, it deserves to be uphold and accepted by the courts, even if it involves release or relinquishment or surrender of disposition, assignment, or transfer. {See CGT V D. Nagrirathinam, (2004) 266 ITR 342 (Madras)}.The family arrangements are governed by principles which are not applicable to the dealings between strangers. The courts in India adopted a very liberal and broad view with regards to the validity of the family settlement and have always tried to uphold it and maintain it. The interest of the family is prime consideration for courts while adjudicating the rights of parties under a family arrangement. The courts as a general rule do not inquire into the adequacy of the consideration except where the inadequacy of the consideration leads to gross injustice to one party. In S. Shanmugam Pillai V K. Shanmugam Pillai, 1973 SCR (1) 570 it was observed that if in the interest of the family properties or family peace the close relations had settled their disputes amicably, this Court will be reluctant to disturb the same. The courts CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 15/27 generally lean in favour of family arrangements. Such family settlements may result in transfer of properties or recognition of the rights of some members of the family in various properties in dispute or may create limited rights in respect of such properties in favour of various members of the family. The basis on which such family settlements are considered to be valid and binding is the mutual by putting an end to the claims and counter claims between family members. The family settlement is not founded on existing rights or liabilities but on existing claims and disputes between the parties which are amicably resolved. The Supreme Court Ramcharandas V Girjanandinidevi, AIR 1966 SC 323 observed that a family settlement is not a transfer. It was observed as under:-
Such family settlement between the members of the family bonafide to put an end to the dispute amongst themselves is not a transfer. It is also not a creation of an interest. In a family settlement, each party takes a share in the property by virtue of independent title which is admitted to that extent by the other parties. Every party who takes benefit under it need not necessarily be shown to have under the law claim to share in property. All that is necessary to show is that the parties are related to each other in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say, affection.
The Supreme Court also observed that courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding the property amongst members of the family. In Tek Bahadur V Debi Singh, AIR 1966 SC 292 the Supreme Court indicated that terms of such family arrangements may be recorded in writing as memorandum of what had been agreed upon. It was observed as under:-
The memorandum need not be prepared for the purpose of being used as a document on which future title of parties is to be founded. It is generally prepared as a record of what had been agreed upon in order that there are no hazy notions about it in future. It is only when the family arrangement is reduced to writing with the purpose of using that writing as proof of what they had arranged and where the arrangement is brought about by the document as such, that the document requires registration, because it is then that it would amount to document of title declaring for future what rights and in what properties the parties possess. But a document which is no more than a memorandum of what had been agreed to between the parties does not require compulsory registration under Section 17, Registration Act.
CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 16/27
20. The family arrangement has evidentiary value even if it is not registered. It is binding on persons who are parties to it and who have taken any advantage under such family arrangement.
A family arrangement being binding on the parties to the arrangement clearly operates as an estoppel to preclude any of the parties who have taken advantage under the agreement from revoking or challenging as observed in Kale V Dy. Director of Consolidation, AIR 1976 SC
807. It was further observed that even a family arrangement, which was registrable but not registered can be used for a collateral purpose namely for the purpose of showing the nature and character of possession of the parties in pursuance of the family settlement. In Subraya M.N. V Vittala M.N.(2016) 8 SCC 705, the Supreme Court held as under:
There is no provision of law requiring family settlements to be reduced to writing and registered, though when reduced to writing the question of registration may arise. Binding family arrangements dealing with immov- able property worth more than rupees hundred can be made orally and when so made, no question of registration arises. If, however, it is reduced to the form of writing with the purpose that the terms should be evidenced by it, it required registration and without registration it is inadmissible; but the said family arrangement can be used as corroborative piece of evi- dence for showing or explaining the conduct of the parties.
In Sita Ram Bhama V Ramvatar Bhama, SLP(C) NO 11067 OF 2017 decided on 23 March, 2018 the Plaintiff and the defendant were real brothers and their father decided to divide his self-acquired movable and immovable properties between plaintiff and defendant. The father could not execute any settlement deed during his life time. The plaintiff and the defendant recorded a memorandum of settlement. The plaintiff filed a civil suit for partition. The defendant filed an application under Order VII Rule 11 of the Civil Procedure Code. The trial court allowed the application and dismissed the suit for want of cause of action. Thereafter the plaintiff filed another civil suit on basis of document evidencing family settlement which was claimed by the plaintiff as memorandum of settlement. The defendant filed an application under Order XIII Rule 3 CPC and Article 45 and Section 35 of the Indian Stamp Act and Sections 17 and 49 of the Indian Registration Act claiming that said document dated 09.09.1994 being not a registered document and being not properly stamped is not admissible in evidence. The trial court allowed the application of the defendant holding that the document dated 09.09.1994 is a family settlement deed and a relinquishment document which is not admissible as evidence being CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 17/27 inadequately stamped and not being registered. The plaintiff filed a writ petition which was dismissed by the High Court. The High Court took the view that so called family settlement takes away the share of the sisters and mother, therefore, the same was compulsorily registrable. The plaintiff being aggrieved filed appeal before the Supreme Court. The Supreme Court considered whether document filed by the plaintiff could have been accepted by the trial court in evidence or trial court has rightly held the said document inadmissible. It was observed that there is relinquishment of the rights by other heirs in the properties, hence, document was compulsorily registrable under Section 17 of the Registration Act. The Supreme Court referred Kale and others V Deputy Director of Consolidation and others (Supra) wherein it was observed as under:-
The family settlement must be a bona fide one so as to resolve family dis- putes and rival claims by a fair and equitable division or allotment of properties between the various members of the family;
The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence;
The family arrangement may be even oral in which case no registration is necessary;
It is well settled that registration would be necessary only if the terms of the family arrangement are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the court for making nec- essary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, there- fore, not compulsorily registrable;
The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the prop- erty which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 18/27 be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same;
Even if bona fide disputes, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and eq- uitable the family arrangement is final and binding on the parties to the settlement.
The Supreme Court held that the document relied on by the plaintiff was com- pulsorily registrable. The document also being not stamped could not have been accepted in evi- dence and order of trial court allowing the application under Order XII Rule 3 CPC and the rea- sons given by the trial court in allowing the application of the defendant holding the document as inadmissible cannot be faulted. The Supreme Court further considered whether document relied on by the plaintiff could have been used for any collateral purpose. It was observed that in a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severance of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. The Supreme Court in Thulasidhara V Narayanappa, 2019 SCC OnLine SC 645 held that a family arrangement, in the form of a document that mentioned the list of properties which were partitioned, though not registered, would operate as a complete estoppel against the parties to such a family settlement. It was further held that even without reg- istration a written document of family settlement/family arrangement can be used as corrobora- tive evidence as explaining the arrangement made thereunder and conduct of the parties.
21. Family partition/settlement Ex.PW3/A perused. The perusal of Family partition/settlement Ex.PW3/A reflects that Arjun Singh on 04.10.1990 divided/partitioned his properties among his sons including Budh Singh. Family partition/settlement Ex.PW3/A is signed by Arjun Singh at point B and also signed by sons of Arjun Singh. In Family partition/settlement Ex.PW3/A properties/Khasra no are not mentioned. However PW3 Gaje Singh who produced original of Family partition/settlement Ex.PW3/A from his custody deposed and explained that said partition pertains to land falling in khasra no 156 and 167 and also identified khasra no 156 and 167 in Family partition/settlement Ex.PW3/A. There is no reason to disbelieve Family partition/settlement Ex.PW3/A and testimony of PW3 Gaje Singh. PW3 Gaje Singh is related to the plaintiff and the defendant no1. The defendant no1 did not plead or alleged any ill will or CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 19/27 malice against PW3. It is proved that Arjun Singh vide Family partition/settlement Ex.PW3/A partitioned his properties in khasra no 156 and 167 among his sons including Budh Singh.
The counsel for the defendants attacked documents Ex.PW3/C executed by Arjun Singh in favour of his sons including Budh Singh regarding transfer of land/property measuring 1 bigha and 4 biswa in Khasra no 156 by arguing that no transfer can be effected in pursuance of documents Ex. PW3/C. The counsel for the defendants cited Suraj Lamp & Industries (P) Ltd. V State of Haryana & others, AIR2000SC3077, Suraj Lamp & Industries (P) Ltd. V State of Haryana & others, 2011 X AD(SC)365 and Bhawani Parsad V Asha Mundelia, 2015(2)CLJ270Del. It was observed by the Supreme Court in Suraj Lamp that a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him. It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. However Arjun Singh had already partitioned his properties among his son vide Ex.PW3/A and documents Ex.PW3/C were executed only to supplement Ex.PW3/A. There no force in arguments advanced by the counsel for the defendants that no transfer of property can be effected in pursuance of Ex.PW3/C.
22. Family Settlement Ex.PW3/D also perused which was executed between the plaintiff, the defendant no 1 and other sons of Arjun Singh. The perusal of Family Settlement Ex.PW3/D reflects that properties which came into share of Budh Singh in pursuance of Family Settlement Ex.PW3/A were divided among his legal heirs. Family Settlement Ex.PW3/D is signed by PW3 Gaje Singh at point A. PW3 Gaje Singh deposed that Budh Singh expired in 1990 leaving behind four sons and three daughters. The partition of land of Budh Singh was effected on 01.12.2002 vide Ex.PW3/D which was signed by PW3 at point A. PW3 Gaje Singh further deposed that each son of Budh Singh received 60 sq. yards in Khasra no 156. PW3 Gaje Singh was not cross examined regarding Family Settlement Ex.PW3/D. The right of cross-examination is one of the most powerful instrumentalities in the conduct of litigation. The cross examination is not merely a technical rule of evidence but it is a rule of essential justice as it serves to prevent surprise at trial and miscarriage of justice. It was observed in A.E.G. Carapiet V A. Y. Derderian, AIR1961Cal.359 that whenever the opponent has declined to avail himself of the opportunity to CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 20/27 put his essential and material case in the cross examination, it must follow that he believed that the testimony given, could not be disputed at all. The Supreme Court in M.B Ramesh V K.M Veeraje, 2013 (2) RCR Civil 932 also reiterated similar legal view. There is no reason to disbelieve testimony of PW3 Gaje Singh that vide Family Settlement Ex.PW3/D properties of Budh Singh were partitioned and the plaintiff received 60 sq. yards i.e. suit property out of property in issue measuring 180 sq. yards in khasra no 156.
23. The counsel for the plaintiff argued that the defendant no 1 in cross examination admitted Ex.PW1/B. Mutual Settlement Ex.PW1/B and General Power of Attorney and other documents Ex.PW1/C are also perused. Mutual Settlement Ex. PW1/B was executed between the defendant no 1 and Kamlesh widow of Jarnail Singh whereby they mutually settled their shares in properties of Budh Singh. In General Power of Attorney and other documents Ex.PW1/C Balraj another brother of the plaintiff and the defendant no 1 was also a party. Mutual Settlement Ex.PW1/B is signed by PW3 Gaje Singh at point A. The perusal of Mutual Settlement Ex.PW1/B reflects that the plaintiff is having 60 sq. yards in Khasra no 156. The defendants in cross examination of the plaintiff tried to prove that Mutual Settlement Ex.PW1/B was never executed and the defendant no1 did not enter into compromise vide Mutual Settlement Ex.PW1/B and Mutual Settlement Ex.PW1/B was not signed by the defendant no 1 and the signature of the defendant no 1 is forged one. However the defendant no 1 in cross examination admitted that in the year 2002, a written family settlement was arrived at in respect of the properties in Khasra no156 and 167 between him, Balraj, Bharat Singh and Kamlesh, wife of late Jarnail Singh which bears his signature at point A and settlement dated 13.05.2013 Ex.PW1/C also bears his photograph and signatures.
24. Family settlements Ex.PW3/A, Ex. PW3/D and Mutual Settlement Ex.PW1/B are bona fide, voluntary and entered into without coercion, influence, misrepresentation and stands acted upon, There is no evidence which can reflect that Family Settlements Ex.PW3/A, Ex. PW3/D and Mutual Settlement are result or outcome of fraud, misrepresentation or undue influence. These family settlements are deserve to be uphold and accepted even these settlements involve release or relinquishment or surrender of disposition, assignment, or transfer. The Family Settlements Ex. PW3/A, Ex. PW3/D and Mutual Settlement Ex.PW1/B were entered is to settle existing or future disputes regarding the properties amongst lineal descendants of Arjun Singh can be safely relied on. Family settlements Ex.PW3/A, Ex.PW3/D and Mutual Settlement Ex.PW1/B are CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 21/27 binding on the plaintiff and the defendant no1being lineal descendants of Arjun Singh as they have taken any advantage under such family arrangements. A family arrangement being binding on the parties to the arrangement clearly operates as an estoppel to preclude any of the parties who have taken advantage under the agreement from revoking or challenging
25. The counsel for the plaintiff argued that the plaintiff was in possession of suit property till July, 2013. The defendant no 1 in cross examination also admitted that the defendants have constructed 120 sq. yards and the remaining portion measuring about 60 sq. yards was lying vacant. PW3 Gaje Singh also supported and corroborated stand of the plaintiff and deposed that the defendant no 1, Balraj and Kamlesh widow of Jarnail Singh also settled vide Mutual Settlement Ex.PW1/B and in cross examination deposed Ex. PW1/B was signed by him as a witness and denied the suggestions that Ex.PW1/B is only related to khasra no167 but stated that it is related to khasra no167 and 156 or that portion A-A in Ex.PW1/B was incorporated subsequently but admitted that Ex. PW1/B was executed between the defendant no.1 and Kamlesh and the plaintiff had no concern with Ex. PW1/B. It is proved that Mutual Settlement Ex.PW1/B was executed between the defendant no 1 and Kamlesh which clearly reflect and proved that the plaintiff was having 60 sq. yards in khasra 156.
26. The plaintiff filed a suit for declaration and permanent injunction titled as Bharat Singh V Karnail Singh bearing no CS 162/13 on 03.06.2013 against the defendants wherein application under Order XXXIX Rules 1& 2 was filed by the plaintiff was dismissed vide order Ex.DW1/13 and Appeal was also dismissed vide judgment Ex.DW1/14. The plaintiff withdrew said suit as the plaintiff was not found in possession of suit property measuring 60 sq. yards as shown in red colour in site plan Ex.PW1/1.
27. The defendant no 1 in cross examination also admitted that he raised construction in 120 sq. yards out of property in issue measuring 180 sq. yards in Khasra no 156. The counsel for the defendants argued that the defendants are in long possession of property in issue measuring 180 sq. yards in Khasra no 156 and there is no evidence to prove possession of the plaintiff in suit property measuring 60 sq. yards as shown in red colour in site plan Ex.PW1/1. The counsel for defendants relied on Chief Conservators of Forests, Govt. of AP V Collector & others, AIR2003SC1805, Madhusudan Lal V Sailendra Kishore, AIR(37)Patna359 and R.K.Madhuryyajit Singh V Tekhellambam Abung Singh, AIR2001Gauhati181. In Chief Conservators of Forests, Govt. of AP the Supreme Court considered section 110 of Evidence CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 22/27 Act, 1872 and observed that Section 110 embodies the principle that possession of a property furnishes prima facie proof of ownership of the possessor and casts burden of proof on the party who denies his ownership. The presumption, which is rebuttable, is attracted when the possession is prima facie lawful and when the contesting party has no title. It is true that the plaintiff did not lead to prove his possession over suit property and when he was allegedly dispossessed by the defendants. But it is proved that the plaintiff received property measuring 60 sq. yards as shown in red colour in site plan Ex.PW1/1 out of Family Settlement Ex.PW3/D which is now under possession of the defendants. The possessions of the defendants over suit property measuring 60 sq. yards as shown in red colour in site plan Ex.PW1/1 is not lawful. The plaintiff is entitled to claim possession of suit property measuring 60 sq. yards as shown in red colour in site plan Ex.PW1/1. Issue no 2 is decided in favour of the plaintiff and against the defendants.
ISSUE NO 3 Whether the plaintiff is entitled for decree of mandatory injunction as prayed in the suit? OPP
28. Section 39 of the Specific Relief Act, 1963 deals with mandatory injunction. Section 39 reads as under:-
39. Mandatory injunctions.--When, to prevent the breach of an obliga-
tion, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an in- junction to prevent the breach complained of, and also to compel perfor- mance of the requisite acts.
The purpose of mandatory injunction is to restore a wrongful state of things to their former rightful order. What acts are necessary to prevent a breach of the obligation and the requisite acts must be such as the court is capable of enforcing are two elements which have to be considered to determine the grant of mandatory injunction. Mandatory injunction is an order requiring the defendant to do some positive act for the purpose of putting an end to a wrongful state of things created by him or otherwise in fulfillment of his legal obligation.
29. The plaintiff pleaded that the plaintiff filed a suit for declaration and permanent injunction titled as Bharat Singh V Karnail Singh bearing no CS 162/13 on 03.06.2013 and the CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 23/27 defendants in the month of August, 2013 have encroached on the suit property and raised a tin shed on half portion of the suit property and also broke wall opening towards the suit property. The plaintiff prayed for passing a decree of mandatory injunction directing the defendants to remove tin shed and temporary structure and close the door open in the mid of the suit property. The plaintiff in affidavit Ex.PW1/A also deposed these facts. The defendants alleged that the defendant no 2 is owner of property in issue measuring 180 sq. yards in Khasra no 156 having purchased from Tara Singh. The defendant no 1 in cross examination deposed that he raised construction in portion measuring120 sq. yards out of property in issue measuring 180 sq. yards while remaining portion measuring 60 sq. yards is lying vacant. The photograph Ex.DW1/5 relied on by the defendants reflects existing of superstructure over suit property. The defendants are liable to remove superstructure if any existing on suit property measuring 60 sq. yards in Khasra no 156 as shown in red colour in site plan Ex.PW1/1. Issue no 3 is decided in favour of the plaintiff and against the defendants.
ISSUE NO 4 Whether the plaintiff is entitled for decree of permanent injunction as prayed in the suit? OPP
30. Section 37(2) of the Specific Relief Act, 1963 lays down that a permanent injunction can only be granted by a decree at the hearing and upon the merits of the case. In simple words, for obtaining a permanent injunction, a regular suit is to be filed in which the right claimed is examined upon merits and finally, the injunction is granted by means of judgment. A permanent injunction therefore finally decides the rights of a person whereas a temporary injunction does not do so. A permanent injunction completely forbids the defendant to assert a right which would be contrary to the rights of the plaintiff specifies certain circumstances under which permanent injunction may be granted. Section 38 reads as under:-
38. Perpetual injunction when granted.--
(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 24/27 (2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II. (3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:--
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
31. The counsel for the defendants that the plaintiff is not entitled for permanent injunction as the plaintiff has not appeared with clean hands and relied on Rahul V Allied Reality Private Ltd., 2013(2)CLJ690Del and Chandrasekaran & another V The Administrative Officer & others, 2013(1)CLJ111SC. The Supreme Court in Arunima Baruah V Union of India & others, Appeal (civil) 2205 of 2007 decided on 27th April, 2007 considered how far and to what extent suppression of fact by way of non- disclosure would affect a person's right of access to justice. It was observed as under:-
(t)o enable the court to refuse to exercise its discretionary jurisdiction suppression must be of material fact. What would be a material fact, suppression whereof would disentitle the appellant to obtain a discretionary relief, would depend upon the facts and circumstances of each case. Material fact would mean material for the purpose of determination of the lis, the logical corollary whereof would be that whether the same was material for grant or denial of the relief. If the fact suppressed is not material for determination of the lis between the parties, the court may not refuse to exercise its discretionary jurisdiction. It is also trite that a person invoking the discretionary jurisdiction of the court cannot be allowed to approach it with a pair of dirty hands. But even if the said dirt is removed and the hands become clean, whether the relief would still be denied is the question.
In Chandrasekaran the Supreme Court also observed that if a person is not appearing with clean hands then he is not entitled for injunction. It was observed as under:-
The appellants have not approached the court with clean hands, and are therefore, not entitled for any relief. Whenever a person approaches a Court of Equity, in the exercise of its extraordinary jurisdiction, it is expected that he will approach the said court not only with clean hands CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 25/27 but also with a clean mind, a clean heart and clean objectives. Thus, he who seeks equity must do equity.
The judicial process cannot become an instrument of oppression or abuse, or a means in the process of the court to subvert justice, for the reason that the court exercises its jurisdiction, only in furtherance of justice. The interests of justice and public interest coalesce, and therefore, they are very often one and the same. A petition or an affidavit containing a misleading and/or an inaccurate statement, only to achieve an ulterior purpose, amounts to an abuse of process of the court.
32. The plaintiff pleaded that he received suit property measuring 60 sq. yards in Khasra no 156 as shown in red colour in site plan Ex.PW1/1 out of partition of properties of his father Budh Singh. The plaintiff prayed for passing decree of permanent injunction to restrain the defendants from creating third party interest and raising construction on suit property measuring 60 sq. yards in Khasra No. 156 as shown in red colour in site plan Ex.PW1/1. It is proved that the plaintiff is entitled for possession of suit property measuring 60 sq. yards in Khasra no 156 as shown in red colour in site plan Ex.PW1/1. The defendants are not entitled to create third party interest and to raise constructions over the suit property measuring 60 sq. yards in Khasra no 156 as shown in red colour in site plan Ex.PW1/1.
ISSUE NO 5 Relief
33. The entire journey of the judicial process is to find the truth from the pleadings, documents and evidence of the parties. Truth is the basis of the justice. The entire journey of the judicial process is to find the truth from the pleadings, documents and evidence of the parties. Truth is the basis of the justice. The Supreme Court in A.S. Narayana Deekshitulu V State of A.P., (1996) 9 SCC 548 observed that from the ancient times, the constitutional system depends on the foundation of truth. In Zahira Habibullah Sheikh V State of Gujarat, (2006) 3 SCC 374 it was observed that right from the inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying existence of Courts of justice. The Supreme Court in Dalip Singh V State of UP, (2010)2SCC114 observed that truth constituted an integral part of the justice delivery system. In Maria Margarida Sequeria Fernandes V Erasmo Jack de Sequeria, (2012)5SCC370, it was observed that the truth should be guiding star in the entire judicial process. Truth alone has to be the foundation of justice. This CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 26/27 view was reiterated in A. Shanmugam V Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam.
34. The plaintiff is seeking relief of possession in respect of suit property measuring 60 sq. yards in khasra no 156, Village Chauhan Patti, Delhi as shown in red colour in site plan Ex.PW1/1 and also seeking relieves of mandatory and permanent injunctions. In view of findings on issue no 2 to 4, suit of the plaintiff is decreed. Accordingly a decree of possession is passed in favour of the plaintiff and against the defendants in respect of suit property measuring 60 sq. yards situated in Khasra No. 156, Village Chauhan Patti, Delhi as shown in red colour in site plan Ex.PW1/1. A decree of mandatory injunction is also passed in favour of the plaintiff and against the defendants whereby the defendants are directed to remove superstructure if any on suit property measuring 60 sq. yards situated in Khasra No. 156, Village Chauhan Patti, Delhi as shown in red colour in site plan Ex.PW1/1. A decree of permanent injunction is also passed in favour of the plaintiff and against the defendants whereby the defendants are restrained from creating third party interest and to raise construction on the suit property measuring 60 sq. yards situated in Khasra No. 156, Village Chauhan Patti, Delhi as shown in red colour in site plan Ex.PW1/1. The plaintiff and the defendants shall to bear their own costs. Decree Sheet be prepared accordingly. File be consigned to record roon.
ANNOUNCED IN THE COURT ON 06TH JUNE, 2020 (DR. SUDHIR KUMAR JAIN) DISTRICT AND SESSIONS JUDGE, NORTH-EAST KARKARDOOMA COURTS, DELHI CS 476517/15 BHARAT SINGH VS. KARNAIL SINGH 27/27