Delhi District Court
Sh Satpal vs Sh Satyawan on 9 February, 2017
IN THE COURT OF SH.AJAY PANDEYADDL. DISTRICT JUDGE02:
SOUTH WEST DISTRICT: DWARKA COURTS: NEW DELHI
RCA No. :54693/16
Sh Satpal,
s/o Sh Narayan Singh,
r/o V.P.O Ghummanhera,
New Delhi 110072 ..... Appellant
VERSUS
Sh Satyawan,
s/o Sh Narayan Singh,
r/o V.P.O Ghummanhera,
New Delhi 110073 ... Respondent
Date of institution of Appeal : 17.12.2014 Date of arguments of Appeal : 09.02.2017 Date of judgment : 09.02.2017 Appeal under Section 96 CPC read with Order XLI of CPC for setting aside the impugned judgment & decree RCA No.54693 Satpal Vs. Satyawan . Page No. : 1/9 dated 01.11.2014 passed by the Learned court of Sh Vipin Kumar Rai, Learned JSCC/ASCJ, Dwarka Courts New Delhi in Civil Suit no. 51/2010 09.02.2017 JUDGMENT
1. This is an appeal u/s 96 of CPC read with order XLI of CPC for setting aside the impugned judgment and decree dated 01.011.2014 passed by the court of Sh Vipin Kumar Rai, Learned JSCC/ASCJ, Dwarka Courts, New Delhi in Civil Suit no. 51/2010.
2. In the nutshell, the facts of the case are that the respondent/ plaintiff filed a suit for recovery of damages, permanent and mandatory injunction against the appellant/ defendant alleging ineralia that plaintiff and defendant are real brothers. Plaintiff, defendant and their father Late Sh Narain Singh were allotted plot no. A6, A4 and A5 respectively under 20 points program in khasra no. 282/2/21 in Village Ghuman Hera, New Delhi as shown in blue colour in site plan. There was a single boundary wall with single entrance raised in the aforesaid plots. Entrance gate was in plot no.
RCA No.54693 Satpal Vs. Satyawan . Page No. : 2/9 A5. Case of the plaintiff is that on 15.03.2009 defendant, his wife and sons snatched the property papers of plot no. A6 from wife of plaintiff and also tried to raise construction on plot no. 6, but could not succeed . Defendant is alleged to have started raising construction over his plot i.e A 4 and half portion of plot no. A5 without consent of plaintiff and father of parties. Defendant is also alleged to have obstructed right of way of plot no. A6 from the aforesaid gate.
3. It is stated that forcible construction raised over half portion of plot no. A5 is illegal and is an encroachment by defendant as plaintiff also has the right over it being the property of their father . On 15.03.2009 even the attempt of plaintiff to open a door in his own plot A6 from public street to have a separate way was obstructed by the defendant. On account of the aforesaid wrongful obstruction in reaching and enjoying plot no. A6, plaintiff claims to be suffering a loss of Rs 100/ per day from 15.03.2009 to 15.04.2010 amounting to Rs 39,000/. Damages of Rs 39,000/ is claimed with pendentilite interest and damages at the same rate. Permanent injunction is also being sought RCA No.54693 Satpal Vs. Satyawan . Page No. : 3/9 restraining defendants from obstructing the right of way of the plaintiff from main gate entrance at plot no. A5 and also from public street to plot no. A6 measuring 120 Sq yrds and restraining from interfering in peaceful enjoyment of plot no. A6 and for mandatory injunction directing defendant to return the allotment papers of plot no. A6.
4. In his written statement filed before the Learned Trial court, defendant ineralia stated that all three plots, allotted by the Government, had fallen into his share in a family settlement arrived at between the parties in the year 19941995, in lieu thereof, defendant relinquished his rights over the ancestral property.
5. It was further plea of the defendant that a memorandum of said family settlement was prepared in the year 2005 as a precautionary measure which was signed by the plaintiff and father of the parties and one independent witness namely, Devender.
6. From the pleadings of the parties following issues were framed by the Learned Trial court on 10.04.2012:
i) Whether plaintiff is entitled for decree of damages, as prayed ? ....OPP RCA No.54693 Satpal Vs. Satyawan . Page No. : 4/9
ii) Whether plaintiff is entitled for decree of permanent injunction, as prayed? ...OPP
iii) Whether plaintiff is entitled for decree of mandatory injunction as prayed for ? ...OPP
iv) Relief
7. Learned Trial court held that defendant had failed to prove the existence of any family settlement between the parties. Learned Trial court further held that properties no. A4, A5 and A6 were allotted to the parties in their individual capacity and the same continued to remain separate as they were never thrown in hotchpotch of joint ancestral property.
8. Hence, the Learned trial court held that plaintiff is entitled for the relief claimed in the suit because he was never divested from the rights over his alleged property no. A6, Village Ghuman Hera, New Delhi.
9. It is submitted by Learned counsel for appellant that Learned trial court had failed to appreciate the facts properly and that the judgment is based on surmise and conjecture and that statements of PW1 as well as DW1 were overlooked and that the genuineness of the memorandum of family RCA No.54693 Satpal Vs. Satyawan . Page No. : 5/9 settlement dated 13.10.2005 mark D1 was overlooked.
10. It is further submitted by counsel for appellant that the evidence was not properly appreciated and scrutinized and the impugned judgment is not sustainable in the eyes of law.
11.In addition to the grounds as taken in the appeal, Learned counsel for appellant has taken a new ground today in his oral arguments that suit is not maintainable in the form as filed before the Learned trial court. He submits that the property was in possession of defendant/ appellant since beginning. In the facts and circumstances the plaintiff was supposed to file a suit for possession and no decree for injunction and damages could have been granted by the Learned Trial court.
12. Arguments considered. Judgment of Learned trial court also perused carefully.
13. It is rightly submitted by Learned counsel for respondent/ plaintiff that Learned trial court has considered all the pleas raised by the defendant. He has rightly argued that the alleged oral family settlement was not proved by the defendant either by the direct or by circumstantial evidence.
14.Learned trial court has rightly observed that the RCA No.54693 Satpal Vs. Satyawan . Page No. : 6/9 memorandum of settlement dated 13.10.2005 was never proved by the defendant. The said document was Mark D1 before the Learned Trial court. In his cross examination defendant stated that he did not know in whose handwriting this document was written. He further stated that no one has signed that document in his presence. The original of the said document was never filed. Defendant further stated that he did not know that last line at point 'Z' in the said document was written subsequently to his signature on the document.
15.Alleged independent witness Mr Devender of the said document was never examined.
16.In view of the absence of production of original document or identification of handwriting on the document and in the absence of the defendant witnessing the signatories of the document/ putting their signatures affixing in the document , Learned trial court could not held anything except that the document was not at all proved by the defendant.
17. In addition to it, Learned trial court has also observed the conduct of defendant in pursuing a litigation about the ancestral properties, which belied the claim of the defendant RCA No.54693 Satpal Vs. Satyawan . Page No. : 7/9 that he surrendered or relinquished his rights over the ancestral property. Hence the defendant failed to proved any family settlement as alleged by him.
18.The property A6, Village Ghuman Hera, New Delhi, was allotted by the Government of India in favour of plaintiff. It is rightly held by the Learned trial court that same would remain separate property of plaintiff and the plaintiff would be entitled to all the rights over the same as per grant of property.
19.So far as new ground orally taken by Learned counsel for appellant is considered, the court is not satisfied with the same.
20.The parties are real brother. The property of plaintiff i.e plot no. A6 was allotted alongwith the properties no. A4 and A5. All plots are adjacent. There was common boundary wall. The entrance exists from the property No. A5 belonging to father of the parties.
21.In view of the facts and circumstances, defendant could have been said to be in exclusive possession of the property. Even otherwise considering the relationship between the parties, the possession of the defendant, if any, could have RCA No.54693 Satpal Vs. Satyawan . Page No. : 8/9 been on behalf of the plaintiff only. Otherwise also plot no. A6 is stated to be vacant. Possession of vacant land is considered to be with title holder i.e. plaintiff in this case.
22.Entire defence of appellant was based upon the oral family settlement. The defendant failed to prove the same. There is no infirmity or illegality in the judgment and decree dated 01.11.2014 passed by the Learned trial court.
23.The appeal being devoid of merits stand dismissed.
24.The trial court record be sent back forthwith to the Learned trial court along with the copy of this judgment.
25. Appeal file be consigned to record room.
Pronounced in the open (Ajay Pandey)
court on 09.02.2017 Addl. District Judge02/South West
Dwarka Courts Complex, New Delhi
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