Delhi District Court
Sh. Ganpat Rai (Deceased Through Lrs) vs Smt. Alka Sharma on 18 October, 2018
IN THE COURT OF SH. SANJEEV KUMARI, ADDITIONAL DISTRICT JUDGE12, TIS
HAZARI COURTS, DELHI
Suit No. 612397/16
1. Sh. Ganpat Rai (Deceased through LRs)
A. Smt. Iswar Kaur
W/o Late Sh. Ganpat Rai,
R/o 9/29, Ramesh Nagar,
New Delhi110015.
B. Sh. Harjinder Kuma Khattar,
S/o Late Sh. Ganpat Rai,
R/o N44, G.F. Kirti Nagar, New Delhi.
C. Sh. Virender Kumar,
S/o Late Sh. Ganpat Rai,
R/o 9/29, Ramesh Nagar, New Delhi110015,
(who is already the plaintiff No. 2).
2. Sh. Virender Kumar,
S/o Late Sh. Ganpat Rai,
R/o 9/29, Ramesh Nagar, New Delhi110015 . .... Plaintiffs
Versus
Smt. Alka Sharma,
W/o Sh. Surender Kumar Sharma,
Presently residing at Plot No. 4748,
Village Razapur Khurd, Mazra Hastal Colony,
Known as Sainik Vihar, PhaseIII,
Mohan Garden, New Delhi.
Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 1 of 26
Also At:
R/o 19/39, Josian Ki Kutia,
Chawni Bazar, Jhun Jhunu,
Rajasthan. .... Defendant
Date of institution : 31.05.2008
Date of reserving order : 06.10.2018
Date of decision : 18.10.2018
SUITS FOR RECOVERY OF POSSESSION, DAMAGES, PERMANENT AND
MANDATORY INJUNCTION
JUDGMENT
Vide this judgment, I shall decide the suit for recovery of possession, damages, permanent and mandatory injunction filed by the plaintiffs.
2. The brief facts as stated by the plaintiffs are that plaintiffs had purchased two plots bearing No. 4748, from Sh. Jagdish Lal measuring 403 sq. yards out of khasra No. 4/17/1 situated in the area of Village Razapur Khurd, Mazra Hastal, Colony known as Sainik Vihar, PhaseIII, Mohan Garden, New Delhi from Sh. Jagdish Lal in the sum of Rs. 1,60,000/ and had executed agreement to sell, GPA, affidavit, Will etc. in the office of Sub Registrar of Delhi, WestII, District Janakpuri on 15.05.2000. The vendor also handed over the possession of the same along with entire chains of the documents pertaining to Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 2 of 26 the said plots. On 27.03.2008 when the plaintiffs visited at the plots they found a person had occupied a room in the corner of plot No. 48. On inquiry, he disclosed his name as Bahadur and labourer by profession and when plaintiff informed him that he is lawful owner of the said plots, the said Bahadur had vacated the room structure on 03.04.2008 without creating any problem and thereafter plaintiffs put their locks on both the doors on 04.04.2008. The plaintiff No. 1 along with his wife plaintiff No. 2, two labourers and one Sh. Girdhari Lal reached at the plots site and found that two baledars were digging the foundation inside combining along with line of the room illegally raised by the defendant extending it right upto the boundary wall of the plot No. 47 facing 25 feet road with the ulterior motive to grab additional area of approximately 80 sq. yards. On informing that plaintiff is the owner, they stopped work and left the site together with their implements leaving room door and entry open. On asking from one said person by plaintiff, he told before leaving that they disclosed that they had been engaged by the defendant. On 04.04.2008, when she claimed herself owner of the said portions of said plots No. 47 and 48 (shown in the site plan as yellow and reda AnnexureA), she also started to threatened the plaintiffs and others to cut them into the pieces and further threatened to throw same in the ganda nala nearby and and further threatened that she would burn herself alive in the side of the said plots by pouring kerosene oil on herself and blame plaintiffs for the same. Plaintiff made complaint to the police on 12.04.2008 but police did not register the FIR. The IO/ Rajbir Singh demanded the copies of title documents along with chain of Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 3 of 26 documents from both the parties. The plaintiffs immediately handed over the same to him whereas defendant failed to show a single document with regard to his title. He also went to the spot in question and conducted inquiry and observed the removal of latches with locks from both the said doors. It is further stated that on 12.04.2008 to 16.04.2008, the doors of the said portions of property remained open without any latches and locks till 17.04.2008 when the plaintiffs again visited the suit property, they found the defendant with the connivance and collusion of the police and a installed hand pump refixed latches on the said doors and applied locks thereupon as well as stacked loose bricks in the dug up foundation for giving it the shape of wall.
On 03.02.2008, also plaintiffs made complaint to police but police did not take any action. Plaintiffs further alleged that the defendant has committed criminal trespass into the said plot in connivance with the local police. Thus, the plaintiffs have claimed the decree for recovery of possession, permanent and mandatory injunction.
3. Summons of the suit sent to the defendant and defendant contested the suit by filing her written statement in which she had taken the preliminary objections submitting that plaintiff has no locus standi to file the present suit and has no cause of action to file the said suit. Further, she has taken the preliminary objection that market value of the suit property is more than one crore rupees, therefore, the suit in question deserves to be exclusively entertained by Hon'ble High Court of Delhi and thus this court has no territorial jurisdiction. She has also stated that she is the owner and in possession Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 4 of 26 of the suit property which she purchased from Sh. Ravi Kumar, vide sale documents consisting of GPA, Will, Agreement to Sell, Affidavit etc. all dated 21.08.2000 which were duly attested by Notary Public appointed by Central Government of India. She has stated that suit is being bad for misjoinder and nonjoinder of necessary parties to the suit as Sh. Jagdish Lal is necessary party to explain how he had got mentioned plot no. 47 and 48 and over written on the East and West bounded surroundings of the alleged property in his name, in the alleged GPA and Will dated 16.04.1999 from Sh. Ravi Kumar.
On merit the defendant has denied the contents of the plaint as wrong and incorrect. She stated that documents filed by the plaintiffs are forged, fabricated and frivolous documents and the same have been made to grab the property of the defendant. It is further stated that on 21.08.2000, the defendant purchased the portion of plot bearing no. 48, area measuring 106.6 sq. yards out of khasra no. 4/17/2, 24/1 min. 24/1 and 25/1 situated in the revenue state of Village Razapur Khurd, Delhi State from Sh. Ravi Kumar vide GPA (2 sets), Will, agreement to sell, affidavit in support and receipt of rupees 45,000/. The defendant received the chain of documents pertaining to the said property and duly taken over the possession of the property in question who got constructed boundary wall, one room, got fitted one hand pump and then appointed a licensee/ tenant namely Dinesh Barua @ Bahadur in her said property. The said tenant resided in the same along with his wife, three children. The defendant with the help of the said Bahadur also got planted certain trees in the said property on or about 01.04.2008. She received Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 5 of 26 calls from her neighbours that the plaintiffs in connivance of their accomplice are creating threats to kill and to throw out the said Bahadur and his family, from the property of defendant due to which on 03.04.2008, she reached at her above said property and talked to Bahadur who told that the plaintiffs along with their accomplice had threatened him to kill and threw him out of the said property with his family, therefore, due to security reasons he cannot carry on living in the property anymore.
She further stated that no such incident as stated on 04.04.2008, in the plaint, has happened, but on that day she was she was approached by the plaintiff no. 2 along with his few muscular accomplices met the defendant and said that his name is Virender Khattar and he told that he is the property dealer and plaintiff no. 2 asked the plaintiff to sell the him, her said property for Rs. 25 lacs upon which, the defendant told him that she cannot sell the said property as her family is willing to settle in Delhi after her retirement. On which, plaintiff no. 2 became furious and then threatened dire consequences, if his offer is not accepted. Thereafter, neighbours and few passersby gathered on the spot on hearing the noise of the plaintiff no. 2 and his accomplice left the spot in no time. The neighbour of the defendant suggested the defendant to property built up her property for residential purposes etc. hence she got constructed work in her property on 06.04.2008 left for Rajasthan to arrange more money for further construction.
She also stated that on 12.04.2008, the defendant again threatened for dire consequences by plaintiff no. 2 and she made complaint to SHO, PS Uttam Nagar, Delhi Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 6 of 26 and investigation of which was handed over to one Rajbir Singh who made necessary inquiry from the documents, neighbours and found that the defendant is the genuine owner of the property in question and plaintiffs are trying to grab the same, thus, the defendant prays for dismissal of the suit.
4. Replication filed by the plaintiff in which reply to the preliminary objections, it is stated that the plaintiffs are not aware about portion of plot no. 48 measuring 106.6 sq. yards at Sainik Vihar, Uttam Nagar, Delhi. It is further stated that there are material variations/ changes in all the chain/ channel documents attached with the written statement. It is stated that dale deed dt. 27.07.1988 from Sh. Raman Kumar states ½ share of land measuring 7 bighas 6 biswas comprising khasra no. 4/17/2 (013), 24/1 min (54), 24/2 (08) and 25/1 (11) is situated at Village Razapur Khurd, Delhi State. Other averments of the written statement have been denied and those of the plaint have been reaffirmed.
5. During the pendency of the case, plaintiff No. 1 expired and his legal heirs were brought on record vide order dated 2.4.2011.
6. On the basis of the pleadings of the parties, Ld. Predecessor has framed following issues vide order dated 20.1.2015:
1. Whether the plaint is liable to be rejected under Order 7 Rule 11 of CPC? OPD.
Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 7 of 26
2. Whether the plaintiff has ownership right of the suit premises?
OPP.
3. Whether the defendant dispossess the plaintiff from the suit premises on 27.3.2008? OPP.
4. Whether the defendant is in legal possession of the suit premises bearing Khasra No. 4/17/2, 24/1 Min. and 25/1 Min.
situated in the revenue estate of Village Razapur Khurd, Delhi State, Delhi Colony known as Sainik Vihar, PhaseIII, Mohan Garden, New Delhi? OPD.
5. Whether the suit is not properly valued for the purpose of court fees? OPD.
6. Whether the plaintiff is entitled for decree of possession of the suit property? OPP.
7. Whether Khasra No. 4/17/1 is situated in Village Razapur Khurd, Mazra Hastal Colony known as Sainik Vihar, PhaseIII, Mohan Garden? OPP.
8. Whether the plaintiff is entitled for decree of mandatory injunction? OPP.
9. Relief.
7. In order to prove his case, the plaintiffs have plaintiff No. 2 as PW1 who Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 8 of 26 tendered his evidence by way of affidavit as Ex. PW1/A.
8. On the other hand defendant did not lead any evidence.
9. Arguments were heard from Sh. H.G.R. Kumar, Ld. Counsel for the plaintiffs and Sh. Manish Sharma, Ld. Counsel for the defendant.
10. I have considered the arguments and have gone through the case file. My issuewise findings are as follows : 11. ISSUE NO. 1 Whether the plaint is liable to be rejected under Order 7 Rule 11 of CPC? OPD.
The onus to prove this issue is placed upon the defendant. The defendant, in the written statement, has taken the preliminary objection that plaintiff has no locus standi to file the present suit as plaintiff has no cause of action to file the present suit therefore same is to dismissed under Order 7 Rule 11 CPC.
12. In order to proved its case that plaintiffs are entitle to relief claimed have examined plaintiff no.2 as PW1 who led his evidence through affidavit Ex. PW1/A. The plaintiffs through the testimony of PW1 has proved that they have the present suit being owner of the suit property as they have purchased the same from Jagdish Lal vide GPA, agreement to sell, Will, affidavit dated 15.05.2000 etc, which he proved as Ex. PW1/2 (colly) and he further deposed that defendant has trespassed on the said property. Hence plaintiff is able to proved that he has locus standi to file the present case and has cause of Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 9 of 26 action to file the present case as defendant has taken possession of the said property.
13. On the other hand defendant has failed to led any evidence that defendant has no cause of action to file the present suit. Hence, I held that the defendant has failed to prove that therefore, no cause of action is made out against the defendant to file the present suit hence I held that present suit cannot be dismiss under Order 7 Rule 11 CPC. Issue Nos. 1 is decided in favour of the plaintiff and against the defendant.
14. ISSUE NO. 2.
Whether the plaintiff has ownership right of the suit premises? OPP. The onus to prove this issue is upon the plaintiff. The plaintiffs, in order to prove their case has examined plaintiff No. 2 as PW1. He has almost repeated the same contents in his affidavit EXPW1/A as stated by plaintiffs in the plaint. He has relied upon the following documents :
1. Site plan as Ex. PW1/1.
2. Original sale documents in favour of plaintiff as Ex. PW1/2 (Colly.).
3. Photographs as Ex. PW1/3 (Colly.).
4. Copy of complaint to SHO as Ex. PW1/4.
5. Copy of complaint dated 3.5.2008 to the SHO as Ex. PW1/5.
6. Previous chain documents as Ex. PW1/6 (Colly.).
7. Copy of Khasra Khatauni pertaining to 4/17/1 as Ex. PW1/7.
8. Copy of sizra of Khasra No. 4/17/1 as Ex. PW1/8.
Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 10 of 26
9. Copy o complaint to the SHO dated 2.6.2008 as Ex. PW1/9.
10. Copy of complaint to the SHO dated 8.6.2008 as Ex. PW1/10.
11. Copy of sizra showing all villages as Ex. PW1/11.
12. Layout plan of the colony Sainik Vihar as Ex. PW1/12.
15. It is contended by the counsel for the plaintiff that from the testimony of PW1, it is proved that the plaintiffs have purchased the suit property from Sh. Jagdish Lal and has proved complete chain of documents (as mentioned above). Therefore, plaintiff has been able to prove that he is the owner of the suit property. He submits that since the property in question was situated in unauthorized colony, therefore, there was no registered sale deed is being in the said area being prohibited by Delhi Government. Therefore, these documents be treated as proof of ownership. In support of his contention, he has relied upon the Judgment of Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana in SLP No. 13917/2009 passed on 11.10.2011 in which the Hon'ble Supreme Court of India has held that the documents by way of GPA, agreement to sell, Will, affidavit, receipts which were executed prior to 2010 can be considered as proof of ownership.
16. On the other hand, Ld. Counsel for the defendant has argued that since plaintiff has failed to prove the registered GPA and complete chain of ownership documents, plaintiff has failed to prove his case.
17. I have considered the submissions and have gone through the case file.
18. As stated above PW1 through his testimony has deposed that plaintiff are Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 11 of 26 the owner of suit property. In his cross examination he again reiterated that he and his father purchased the plot no. 47 and 48 from Jagdish Lal and when same was purchased there was no construction and he has raised boundary wall after purchasing the same. He do not have any chain of documents of ownership or any kind of other mutation / title documents with regard to the property in question except the documents filed by him on record. He voluntarily stated that he has house tax receipts. He stated that there is no sale deed available of the suit property. He further voluntarily stated that sale deed was not being registered at that time and there is an agreement to sell. He further deposed that the property in question was purchased by his father in his name from Sh. Jagdish Lal who in turn purchased the same from Sh. Ravi Kumar and Sh. Ravi Kumar purchased the same from Sh. Parveen Kaushik who purchased the same from Sh. Behl. Chain of documents Ex. PW1/2 has already been placed on record. He submitted that Ex. PW1/6 is not registered (Ex. PW1/6 is receipt of Rs. 50,000/ issued by Sh. Ravi Kumar in favour of Sh. Jagdish Lal).From the documents i.e. Ex. PW1/2, it is evident that the registered Will, registered GPA executed by Sh. Jagdish Lal in favour of plaintiffs are registered on 15.5.2000 and notarized agreement to sell and receipt. These documents clearly prove that Sh. Jagdish Lal had executed these documents after taking sale consideration of Rs. 1,60,000/ from the plaintiffs. Further, there is a registered GPA and Will of Sh. Ravi Kumar in favour of Sh. Jagdish Lal (also Ex. PW1/2) which also prove that Sh. Ravi Kumar has authorized Sh. Jagdish Lal. Admittedly, as stated in written statement, the defendant is Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 12 of 26 also claiming to purchase the property from Sh. Jagdish Lal hence, it is understood fact that the property was purchased by Sh. Ravi Kumar hence, it is admittedly proved that common owner of the property was Sh. Ravi Kumar. Since defendant has not led any evidence nor proved or produced any document that Sh. Ravi Kumar has executed any GPA or agreement to sell in her favour regarding the suit property therefore, in these circumstances there is no ground to disbelieve the documents of sale proved by the plaintiffs.
19. From the cross examination of PW1 it is evident that nothing much has came out to disbelieve his testimony. Hence, PW1, through his evidence has proved that he and his father had purchased the two plots bearing Nos. 4748 out of Khasra No. 4/17/1 situated at Village Razapur Khurd, Mazra Hastsal, New Delhi which are known as Sainik Vihar, Phase III, Mohan Garden, Delhi. from Sh. Jagdish Lal. Further his testimony is duly corroborated by the documents. Ex. PW1/2 (Colly.) which are documents of sale transaction and agreement to sell, GPA, affidavit, Will and receipt all dated 15.5.2000 executed by Sh. Jagdish Lal in favour of the plaintiffs & PW1/6 which are the GPA, deed of agreement, affidavit and receipt all dated 2.5.1995 executed by Sh. Jee Raj, Sh. Ved Prakash and Sh. Mahender Singh in favour of Sh. Avtar Singh Behal / Ajay Behal; GPA, agreement to sell, affidavit and receipt all dated 14.1.1997 executed by Sh. Ajay Behal in favour of Sh. Parveen Kaushik; GPA and Will dated 15.7.1998 executed by Sh. Parveen Kaushik in favour of Sh. Ravi; GPA and Will dated 16.4.1999 executed by Sh. Ravi in Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 13 of 26 favour of Sh. Jagdish Lal Ex. PW1/6 . it is proved that plot No. 47 and 48 measuring 403 Sq. Yds. out of Khasra No. 4/17/1 situated at Village Razapur Khurd, Mazra Hastsal, New Delhi which are known as Sainik Vihar, Phase III, Mohan Garden, Delhi. The transfer of property through GPA, agreement to sell and will has been recognized as valid mode of transfer of immovable property in Delhi particularly in those cases where these documents are prior to the Judgment of Suraj Lamp & Industries (P) Ltd. Vs. State of Haryana & Ors. dated 11.10. 2011 passed by the Honble Supreme Court in SLP (C) 13917/2009.
20. Further, from the ordersheet dated 25.11.2009, it is evident that Ld. Predecessor had appointed Tehsildar as Local Commissioner to demarcate the property of plaintiffs and defendant after obtaining proof of ownership of both the parties from them. Further, from the ordersheet dated 11.12.2009, it is evident that the Kanungo has stated that demarcation cannot be done except with the help of demarcation survey machine and therefore, Ld. Predecessor had directed the plaintiff to pay Rs. 10,000/ as cost of survey machine. Further, from the ordersheet dated 4.1.2010, it is reflected that the demarcation report was filed.
21. As per the demarcation report dated 29.12.2009 demarcation was carried out on 21.12.2009 through TSM method in presence of SDM staff and other Government staff. The plaintiff is in possession of the land measuring 164.54 Sq. Yds. at Khasra No. 4/17/1 and land measuring 134.71 Sq. Yds. in Khasra No. 4/17/2 total area measuring 309.25 Sq. Yds. whereas the plaintiff was having the papers of only Khasra No. 4/17/1. It Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 14 of 26 is further mentioned in the report that the defendant is in possession of land measuring 96.2 Sq. Yds. in Khasra No. 4/17/1 on which house is constructed whereas she has documents of 4/17/2 (24/1 min. 24/2 and 4/25). The defendant has not challenge the said demarcation report therefore same has remained unrebutted hence same remained unrebuuted therefore there is no ground to disbelieve the same.
22. On the other hand, defendant has failed to led any evidence that she is the owner of suit property. Even otherwise from her sale documents i.e. the GPA, will it is evident that she has purchased property bearing no. 4/17/2 (24/1 min. 24/2 and 4/25). But as mention in the demarcation report defendant has documents of 4/17/2 (24/1 min. 24/2 and 4/25) which is not the suit property hence, she has constructed the room on the wrong plot which is owned by the plaintiff. Hence she has failed to proved that she is the owner of suit property.
23. Therefore, taking into consideration all the aspects, I held that the plaintiffs are the owners of the suit property bearing No. 4748 from Sh. Jagdish Lal measuring 403 Sq. Yds. out of Khasra No. 4/17/1 situated in the area of Village Razapur Khurd, Mazra Hastal, Colony known as Sainik Vihar, PhaseIII, Mohan Garden, New Delhi. Issue No. 2 is decided accordingly in favour of the plaintiff.
24. ISSUE NO. 3.
Whether the defendant dispossess the plaintiff from the suit premises on 27.3.2008? OPP.
Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 15 of 26 The onus to prove this issue is placed upon the plaintiffs. Plaintiff No. 2 has deposed through affidavit Ex. PW1/A that on 27.3.2008 when plaintiffs visited at the plot, they found one person had occupied a room (marked as yellow in the site plan) covered with asbestos sheets in one corner of plot No. 48. On inquiry from his, he disclosed his name as Bahadur and labourer by profession. Then immediately they informed him that they are the legal and lawful owners of the said plot including the said room and also instructed him to vacate the same. Thereafter, he vacated the said room on 3.4.2008. On 4.4.2008, the deceased plaintiff No. 1 along with his wife and plaintiff No. 2 with some labourers and one Sh. Girdhari Lal reached the plot and found that two beldars were digging the foundation inside combining along with line of room illegally raised by the defendant extending it right upto the boundary wall of the plot No. 47 facing 25 ft road with the ulterior motive to grab additional area of 80 Sq. Yds. and to separate from the rest and on seeing the plaintiffs and persons, two beldars stopped working as they feld that plaintiffs are the rightful owners and let the site with their implements leaving room door and entry door open. On asking from one said person, he told before leaving that they had been engaged by the defendant. He further deposed that thereafter sometime on 4.4.2008 itself, the defendant arrived at the spot claiming himself as the owner of plot Nos. 47 and
48. The defendant also started to threaten the plaintiffs to cut them into pieces and further threatened to throw same in ganda nala nearby and further that she would burn herself alive in side the said plots by pouring kerosene oil on herself and further threatened that Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 16 of 26 she would put all the blame on the plaintiffs for the same. After hearing noise, neighbours gathered there and asked both the parties to show them their respective title documents and after conducting the examination of the same, they found the plaintiffs are the real and genuine owners of the plot due to which the defendant left the spot.
25. He further deposed that plaintiff made a complaint to the police on 12.4.2008 against the defendant and made a request to the SHO, Uttam Nagar for registration of FIR however, police officials failed to register an FIR against the defendant. When the plaintiffs were lodging FIR against the defendant, the defendant had removed the latches along with locks. He further deposed that IO Rajbir Singh demanded copies of title documents along with chain documents from both the parties. The plaintiffs immediately handed over the same to him whereas the defendant had failed to show even a single document with regard to her title claim. Plaintiff / PW1 further deposed that from 12.4.2008 to 16.4.2008, the door of the said portion remained open without any latches and locks but on 17.4.2008, when the plaintiffs again visited the suit property, they found that defendant, with connivance and collusion of the IO, had installed a handpump and re fixed latches on the said doors and applied locks thereupon as well as stacked loose bricks in the dug up foundation for giving it the shape of wall with mala intention to separate the said portion from the main plot to grab the additional area of 80 Sq. Yds. He further deposed that on 3.5.2008, on visiting the plot, plaintiff observed that the defendants arranged bricks, badarpur / dust and cement and thereafter, on the same day, another Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 17 of 26 complaint was made by him against the defendant Ex. PW1/5 but police did not take any action.
26. In his cross examination, he stated that when they purchased the plot in question, the same was only vacant plot and no construction was raised there. There was a boundary wall t the extent of one feet only and the suit property consists of plot No. 47 and 48 for the area measuring 403 Sq. Yds. and defendant is in possession of some part of the property bearing No. 48. He voluntarily stated that there was no room covered by cemented shed. He admitted the suggestion that the present suit is with regard to the property of the portion of Smt. Alka Sharma. He further deposed that he had raised boundary wall to the extent of six feet on both the plots within a week of purchase of suit premises. No gate was affixed on the boundary wall and there was a single boundary wall over the two plots. He denied the suggestion that on 15.5.2008, he did not receive the possession of the said two plots. He stated that there was only one room over the abovesaid plots till date. He denied the suggestion that the defendant has purchased the portion of which she is in possession after getting constructed the same. He admitted that he never engaged any chowkidar or caretaker or tenant in the said plot. He never resided in the said plot. He had obtained electricity connection over the said property in the year 200809 but not the water connection. He denied the suggestion that there was electricity and water connection already installed in the portion of Smt. Alka Sharma but voluntarily stated that she has obtained the electricity and water connections after informing her Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 18 of 26 wrong address. He denied the suggestion that he was never in possession of portion occupied by the defendant measuring 106.6 Sq. Yds. out of plot No. 48.
27. It is contended by Ld. counsel for the plaintiff that from the testimony of PW1, it is proved that the plaintiff was the owner of the suit property since its purchase and has constructed boundary wall but since the said plot was lying vacant, the defendant appeared to have trespassed into it and constructed room and dispossessed the plaintiff.
28. On the other hand, Ld. Counsel for the defendant submits that since admittedly plaintiff has not constructed the room over the suit property, hence, the same was constructed by the defendant and since she has purchased 106.6 Sq. Yds. from Sh. Ravi Kumar, therefore, she has the lawful right to construct the said room which is in possession of the defendant. Hence, plaintiff has failed to prove that the defendant has dispossessed the plaintiff and the plaintiff has any right over the said portion. Hence, the plaintiff is not entitled for possession of the suit property.
29. Since admittedly, the plaintiff has deposed in his testimony that when he visited the suit property on 27.3.2008, he found one Bahadur at the spot in a room and admittedly said Bahadur was not employed by the plaintiff and further, his testimony also proved that said room was already constructed which means the same was not constructed on 27.3.2008 but must have been constructed prior to it. Hence, since the defendant has claimed in the written statement that same was constructed by her and she has left Bahadur as her tenant in the said property after purchasing the same on 21.8.2000 Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 19 of 26 therefore, in these circumstances, in my view, the plaintiff has not been dispossessed from the suit property on 27.3.2000 but on some earlier date as admittedly the said room was not constructed on 27.3.2008 itself. Hence, I held that the plaintiff has able to proved that he was dispossess from the suit property but he was dispossess much prior to 23.03.2008 though it came to his knowledge on 23.03.2008.
30. In view of the above I held that though plaintiff has been able to prove that he was dispossessed from the suit property but he failed to proved that he was disposed on 27.3.2008. Issue No. 3 is decided accordingly.
31. ISSUE NO. 4.
Whether the defendant is in legal possession of the suit premises bearing Khasra No. 4/17/2, 24/1 Min. and 25/1 Min. situated in the revenue estate of Village Razapur Khurd, Delhi State, Delhi Colony known as Sainik Vihar, PhaseIII, Mohan Garden, New Delhi? OPD.
32. The plaintiff in his cross examination has admitted the suggestion that construction of room in the suit property was raised by the defendant hence it is proved that defendant was in possession of the suit property. But case of the plaintiff is that he has been unauthorizedly dispossessed from the suit property
33. The onus is upon the defendant to proved that she was in lawful possession of the suit property. She can be legal possession being the owner of suit property or being Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 20 of 26 in adverse possession for more than 12 years.
34. As far as ownership of the suit property is concerned I have already given the finding in issue no.2 that as per ownership documents of defendant her land is khasra no. 4/17/2 (24/1 min. 24/2 and 4/25) whereas she has constructed the room wrongly in the suit property which is Khasra No. 4/17/1 owned by the plaintiffs hence, I held that defendant is not in possession of Khasra No. 4/17/2, 24/1 Min. and 25/1 Min.
35. Legally an owner of property can be deprived from possession of his property only when plea of adverse possession is taken as person who claim to be in adverse possession is able to prove that he is in possession for more than 12 years.
36. It is not the case of defendant that she is adverse possession of suit property as in the written statement she has not alleged that suit has been filed after 12 years of raising construction in the suit property by her therefore, defendant has failed to prove that she was in lawful possession of the suit property. Even otherwise no evidence has been led by defendant therefore, I held that the defendant has failed to prove that she is in lawful possession of the suit property or that She is in legal possession of the suit premises bearing Khasra No. 4/17/2, 24/1 Min. and 25/1 Min. situated in the revenue estate of Village Razapur Khurd, Delhi State, Delhi Colony known as Sainik Vihar, Phase III, Mohan Garden, New Delhi . Issue No. 4 is decided in favour of the plaintiff and against the defendant.
Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 21 of 26 37. ISSUE NO.5
Whether the suit is not properly valued for the purpose of court fees? OPD.
The onus to prove this issue is upon the plaintiffs. The plaintiff has assessed the value of the suit for the purpose of jurisdiction as Rs. 5 lacs for the relief of possession and Rs. 130/ for the relief of mandatory and permanent injunction.
38. The defendant, in the written statement, has taken the preliminary objection No. 5 that the suit has deliberately not valued for the purpose of cost whereas as per the recent boom and rise in the property rates in Delhi and NCR areas, the rates have gone so high and the property claimed by the plaintiff has market value of more than Rs. 1 Crore or above. In absence of due cost as per the market value of atleast one crore, the suit deserved to be dismissed. As stated above, the onus was upon the defendant to prove that the value of the property was more than Rs. 5 lacs but no evidence has been led by the defendant. Hence, I held that the defendant has failed to prove that the market value of the suit property is more than Rs. 5 lacs at the time when the suit was filed. Issue Nos. 5 is decided in favour of the plaintiff and against the defendant.
39. ISSUE NOS. 6 & 8.
Whether the plaintiff is entitled for decree of possession of the suit property? OPP, Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 22 of 26 Whether the plaintiff is entitled for decree of mandatory injunction? OPP.
40. In view of my findings in issue Nos. 2 and 4, I held that the plaintiff is entitled for decree of possession and mandatory injunction. Hence I decide both issues in favour of the plaintiff and against the defendant.
41. ISSUE NO. 7.
Whether Khasra No. 4/17/1 is situated in Village Razapur Khurd, Mazra Hastal Colony known as Sainik Vihar, PhaseIII, Mohan Garden? OPP.
The plaintiff, through his evidence by way of affidavit, Ex. PW1/A, has deposed that he and his father had purchased the two plots bearing Nos. 4748 from Sh. Jagdish Lal and has produced the said documents. Ex. PW1/2 (Colly.) are the GPA, deed of agreement, affidavit and receipt all dated 2.5.1995 executed by Sh. Jee Raj, Sh. Ved Prakash and Sh. Mahender Singh in favour of Sh. Avtar Singh Behal / Ajay Behal; GPA, agreement to sell, affidavit and receipt all dated 14.1.1997 executed by Sh. Ajay Behal in favour of Sh. Parveen Kaushik; GPA and Will dated 15.7.1998 executed by Sh. Parveen Kaushik in favour of Sh. Ravi; GPA and Will dated 16.4.1999 executed by Sh. Ravi in favour of Sh. Jagdish Lal; and agreement to sell, GPA, affidavit, Will and receipt all dated 15.5.2000 executed by Sh. Jagdish Lal in favour of the Sh. Virender, plaintiff. Ex. PW1/6 (Colly.) are affidavit, agreement to sell and receipt all dated 16.4.1999 executed by Sh.
Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 23 of 26 Ravi Kumar in favour of Sh. Jagdish Lal. On perusal of said documents, it is evident that in the said documents it is specifically mentioned that plot No. 47 and 48 of land measuring 403 Sq. Yds. out of Khasra No. 4/17/1 situated at Village Razapur Khurd, Mazra Hastsal, New Delhi which are known as Sainik Vihar, Phase III, Mohan Garden, Delhi. Even the defendant in the written statement has also claimed to purchase the suit property from Sh. Ravi Kumar who has also the seller of the suit property. Hence, both the plaintiffs and defendant have stated that their property is situated in Sainik Vihar. There is no ground to disbelieve the documents filed by the plaintiff that the property which he has purchase is property No. 47 and 48, Sainik Vihar PhaseIII, which was earlier Khasra No. 4/17/1.
42. Further, from the ordersheet dated 25.11.2009, it is evident that Ld. Predecessor had appointed Tehsildar as Local Commissioner to demarcate the property of plaintiffs and defendant after obtaining proof of ownership of both the parties from them. Further, from the ordersheet dated 11.12.2009, it is evident that the Kanungo has stated that demarcation cannot be done except with the help of demarcation survey machine and therefore, Ld. Predecessor had directed the plaintiff to pay Rs. 10,000/ as cost of survey machine. Further, from the ordersheet dated 4.1.2010, it is reflected that the demarcation report was filed.
43. On perusal of record, I found that there is a demarcation report dated 29.12.2009. As per the said report, demarcation was carried out on 21.12.2009 through TSM method in presence of SDM staff and other Government staff. The plaintiff is in Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 24 of 26 possession of the land measuring 164.54 Sq. Yds. at Khasra No. 4/17/1 and land measuring 134.71 Sq. Yds. in Khasra No. 4/17/2 total area measuring 309.25 Sq. Yds. whereas the plaintiff was having the papers of only Khasra No. 4/17/1. It is further mentioned in the report that the defendant is in possession of land measuring 96.2 Sq. Yds. in Khasra No. 4/17/1 on which house is constructed whereas she has documents of 4/17/2 (24/1 min. 24/2 and 4/25) hence, she has constructed the room on the wrong plot which is owned by the plaintiff. From the demarcation report, it is proved that the suit property is the plot No. 4/17/1 situated in Village Razapur Khurd, Majra Hastsal, Colony known as Sainik Vihar, PhaseIII, Mohan Garden, New Delhi. No objection to the demarcation report has been filed hence, there is no ground to disbelieve the demarcation report. Hence, issue No. 7 is decided in favour of the plaintiffs and against the defendant.
44. RELIEF.
In view of my findings in aforesaid issues, I pass a decree for possession in favour of the plaintiff and direct the defendant to hand over the possession of the suit property, i.e. integral part of main plots No. 47 and 48 measuring 403 Sq. Yds. out of Khasra No. 4/17/1 situated in the area of Village Razapur Khurd, Mazra Hastsal, Colony known as Sainik Vihar, PhaseIII, Mohan Garden, New Delhi as shown in the site plan, to the plaintiff and further pass a decree of permanent injunction restraining the defendant, her agents, representatives, attorneys, assignees, employees etc. from entering, reconstructing and raising pucca boundary wall in dug up foundation and from constructing Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 25 of 26 additional room, kitchen, bathroom, toilet and from transferring possession to anybody else or from creating third party interest in respect of the abovesaid suit property. Plaintiff is also held entitled to the costs of the suit. Decree sheet be prepared accordingly. File be consigned to record room after necessary compliance. Digitally signed by SANJEEV SANJEEV KUMAR KUMAR Date: 2018.10.18 15:56:03 +0000 Announced in the open court (Sanjeev KumarI) on 18.10.2018 Additional District Judge12, Central Tis Hazari Courts, Delhi 18.10.2018 Suit No. 612397/16 Ganpat Rai Vs. Alka Sharma Page No. 26 of 26