Delhi District Court
Shri Shivji Rai vs . Shri Nand Lal Rai on 11 September, 2019
Shri Shivji Rai Vs. Shri Nand Lal Rai
IN THE COURT OF SH. DR. PANKAJ SHARMA
ACJCCJARC(EAST), KARKARDOOMA COURTS, DELHI
CS No. 8913/16
IN THE MATTER OF:
1. Shri Shivji Rai
S/o Shri B.C. Rai
R/o Village & Post Office Chilahari
P.S. Dumraon, Distt - Buxur, Bihar
Through
1(a) Smt. Jagmoti Singh
Widow of Late Shri Shivji Rai
R/o House No. 510, Ground Floor,
Sector4, Vaishali, Ghaziabad, U.P.
1(b) Shri Arun Singh
Son of Late Shri Shivji Rai
R/o House No. 510, Ground Floor,
Sector4, Vaishali, Ghaziabad, U.P.
1(c) Ms. Sangeeta Singh
Daughter of Late Shri Shivji Rai
Wife of Shri Pramod Kumar Singh
R/o. 1277A, Maruti Vihar,
Chakkarpur, Gurgaon, Haryana
1(d) Ms. Poonam Singh
Daughter of Late Shri Shivji Rai
Wife of Shir Anant Kumar Singh
R/o B32, Teva Officers Colony,
Bijnore Road, Gajraula, Dist. Amroha, U.P.
CS No. 8913/16 Page No. 1/27
Shri Shivji Rai Vs. Shri Nand Lal Rai
1(e) Ms. Babita Singh
Daughter of Late Shri Shivji Rai
Wife of Shri Ajeet Singh
R/o G10, Yogeshwar Apartment,
Bejalpur, Ahmedabad, Gujrat ...Plaintiffs
VERSUS
Shri Nand Lal Rai
S/o Shri Gauri Rai
R/o Plot No. 26, Gali No. 45
Amar Vihar, Rect. No. 38
Killa No. 18, Village Karawal Nagar
Delhi 110094 ...Defendant
DATE OF INSTITUTION : 11.07.2008
DATE OF RESERVING THE ORDER : 29.08.2019
DATE OF DECISION : 11.09.2019
JUDGMENT
1. Initially the suit was filed by plaintiff seeking relief of Possession and Damages, however, immediately after the appearance of defendant, an application under Order 6 Rule 17 CPC was moved on behalf of defendant and same was allowed vide order dated 21.11.2008 and through the amended suit, plaintiff claimed the relief of Possession, Damages and Permanent Injunction. Thereafter, defendant filed amended Written Statement and plaintiff filed Replication. Alongwith the Written Statement, defendant filed a Counter Claim and its reply CS No. 8913/16 Page No. 2/27 Shri Shivji Rai Vs. Shri Nand Lal Rai was filed by the plaintiff and Replication was filed by the defendant. The counter claim has been tagged with the main suit and same has been tried together with the main suit. Common issues were framed in the suit as well as in the counter claim.
2. The brief facts set out in the plaint are that the plaintiff was an exarmy personnel and had defendant as partner in a coal business. The plaintiff had great faith in the defendant. The plaintiff purchased 100 sq. yds. of land being Plot No. 26 falling under Rect. No. 38, Killa No. 18 situated at Village Karawal Nagar in the abadi area of Amar Vihar, Shahdara, Delhi - 110094 from Mrs. Savita Bansal W/o S K Bansal. Smt. Savita Bansal was the lawful owner with possession of the suit property by virtue of Agreement to Sell dated 05.02.1997 and GPA executed in her favour by erstwhile owner Sh. Satpal S/o Ved Ram R/o Village Karawal Nagar, Delhi. Sh. Satpal sold 200 sq. yds. of land falling under Plot No. 26 falling under Rect. No. 38, Killa No. 18 situated at Village Karawal Nagar in the abadi area of Amar Vihar, Shahdara, Delhi - 110094 and suit property was half portion of the land purchased by Smt. Savita Bansal from Satpal.
3. Smt. Savita Bansal executed an Agreement to Sell, Power of Attorney, Affidavit, Will all dated 06.05.1997 in favour of the plaintiff at the time of selling of suit property to him on being paid the full sale consideration which was acknowledged by way of receipt. The vacant possession of suit property was delivered to the plaintiff by Smt. Savita Bansal and by virtue of these documents, the plaintiff became the absolute owner of the suit property. Thereafter, plaintiff raised construction on the suit CS No. 8913/16 Page No. 3/27 Shri Shivji Rai Vs. Shri Nand Lal Rai property by raising boundary walls and rooms.
4. The plaintiff had to travel frequently to his native place and believing his partner i.e. defendant asked him to have a watch over the suit property. The suit property was lying locked till July 2000 and same was used by plaintiff for stay whenever he comes from his native village. Thereafter relatives of the plaintiff informed him that defendant had started residing in the suit property after breaking open the locks and same was noticed by plaintiff upon his visit to the suit property in the month of August 2000. The plaintiff then tried to reason it out with defendant who assured him that he would vacate forthwith. However, same was not done by the defendant. On 30.08.2000, again plaintiff asked defendant to vacate the suit property but same was refused by him and thereafter plaintiff lodged a complaint against him with Police Station Gokul Puri and also wrote a letter to Hon'ble Defence Minister, Union of India. Thereafter, plaintiff filed a criminal complaint against the defendant under Section 406/506 IPC.
5. The defendant herein had filed a suit bearing No. 75/2003 dated 12.10.2000 against plaintiff seeking relief of Permanent Injunction claiming his ownership by virtue of adverse possession and in the said proceedings, plaintiff made a statement before court that he would not dispossess the defendant without due process of law without admitting the averments made in the plaint and said suit was disposed off on 19.05.2004.
6. Thereafter, some time was consumed on account of CS No. 8913/16 Page No. 4/27 Shri Shivji Rai Vs. Shri Nand Lal Rai negotiations to settle the matter amicably and on 15.01.2008 plaintiff got issued a legal notice against defendant to vacate the suit property, however, same was ignored by the defendant.
7. Plaintiff has averred that defendant has no right, title or interest in the suit property and he is in illegal possession of the same. Plaintiff has claimed recovery of possession and damages from the year 2000(since unauthorized entry of defendant in the suit property) @ Rs. 8,000/ per month which was the prevailing market rent till the filing of the suit, pendente lite and future. In addition to this,plaintiff has claimed the relief of Permanent Injunction against the defendant from alienating, selling, transferring, or parting with possession or creating third party interest in the suit property.
8. In Written Statement, defendant has denied the averments made in the plaint. It was submitted on behalf of defendant that in the earlier suit filed by defendant bearing No. 75/03, the plaintiff herein did not dispute his possession which renders the plaint liable to be dismissed.
9. It was submitted that plaintiff cannot go against the decree passed in the suit No. 75/03 filed by the defendant. Further, it is submitted that in the previous suit, plaintiff herein made an averment that he purchased 200 sq. yds. from Savita Bansal while he had filed documents pertaining to 100 sq. yds. and documents filed by him do not disclose as to how Savita Bansal became owner or the details of erstwhile owner. Although the objection was taken by the defendant that plaintiff has not filed any site plan with the plaint to specifically show the suit property CS No. 8913/16 Page No. 5/27 Shri Shivji Rai Vs. Shri Nand Lal Rai however vide order dated 24.05.2017 the court permitted the plaintiff to file site plan and same was taken on record. Defendant had denied that Savita Bansal was the owner of the suit property before the plaintiff and termed the documents filed by plaintiff as forged.
10. In Replication, the plaintiff denied the averments of the Written Statement and reiterated its claim as per the plaint. In the counterclaim, the counter claimant/defendant submitted that he is permanent resident/occupant and enjoying property No. 26, Gali No. 45, Amar Vihar, Rect No. 38, Killa No. 18 of Village Karawal Nagar, Shahdara, Delhi - 94 measuring 200 sq. yds. Since last more than 26 years. It is also submitted that since the piece of land was lying vacant, open, unused, neglected and unclaimed, hence, the counterclaimant/defendant occupied and held possession of the piece of land measuring 200 sq. yds, thereafter, constructed the boundary walls and rooms open to the knowledge of one and all. He also submitted that he run the business of coal in partnership with plaintiff since 1995 and plaintiff taking advantage of illiteracy of counter claimant embezzled the funds of partnership firm. He submitted that on 28.09.2000, the plaintiff with SI Meena of PS Gokul Puri extended threats to him and again on 11.10.2000, plaintiff alongwith local police and politician came to dispossess the counter claimant from the suit property. The counter claimant sought the relief of Declaration qua documents GPA, Agreement to Sell, Affidavit, Will, Receipt all dated 06.05.97 to be declared as null and void. He also sought relief of Permanent Injunction from using the CS No. 8913/16 Page No. 6/27 Shri Shivji Rai Vs. Shri Nand Lal Rai aforesaid documents for any purpose. In reply, the plaintiff/counter defendant denied all the allegations. In Replication, counter claimant asserted his claim and denied the allegations made in the reply of the counter claim by the plaintiff.
11. During the proceedings plaintiff expired and upon application under Order 22 Rule 3 CPC, his LRs were impleaded as plaintiffs vide order dated 22.09.2014.
12. From the pleadings of the parties, following issues were framed vide order dated 07.01.2010:
(i) Whether the present suit is without any cause of action?OPD
(ii) Whether the defendant is entitled to a decree of declaration as prayed in the counter claim?OPD
(iii) Whether the defendant is entitled to a decree of permanent injunction as prayed in the counter claim? OPD
(iv) Whether the counter claim filed by the defendant is barred by limitation as alleged?OPP
(v) Whether the defendant has not valued the counter claim properly for the purpose of court fees & jurisdiction?OPP
(vi) Whether the plaintiff is entitled to a decree of possession of suit property as claimed?OPP
(vii) Whether the plaintiff is entitled to a decree of recovery of Rs. 2,88,000/ as claimed?OPP
(viii) Whether the plaintiff is entitled to interest on a sum CS No. 8913/16 Page No. 7/27 Shri Shivji Rai Vs. Shri Nand Lal Rai of Rs. 2,88,000/, if yes, at what rate and for what period?OPP
(ix) Whether the plaintiff is entitled to a decree of permanent injunction as prayed for?OPP
(x) Relief.
13. In PE, Plaintiff examined himself as PW1, HC Sanjeev Kumar as examined as PW2, Ranveer Singh Kangoo was examined as PW2 however the testimony is read as PW2A as HC Sanjeev Kumar was examined as PW2 earlier. Savita Bansal is examined as PW3, Shri Kishan Bansal was examined as PW4 and Suersh Kumar Saini was examined as PW5.
14. PW1 exhibited documents which are Ex. PW1/1 executed on 05.02.1997 which are Agreement to Sell executed by Satpal in favour of Sunita Bansal in respect to plot of measuring 200 sq. yds. out of Rect. No. 38, Killa No. 18, bearing Plot No. 26 situated at Karawal Nagar. Ex. PW1/2 was executed also on 05.02.1997 which is GPA issued by Satpal in favour of Savita Bansal. Documents Ex. PW1/3 to Ex. PW1/7 are set of documents executed by Savita Bansal in favour of plaintiff i.e. Shivji Rai. These documents are Agreement to Sell, Power of Attorney, Affidavit, Will and Receipt. Ex. PW1/8 is a certified copy of plaint of Suit No. 75/03 which was filed by defendant. Ex. PW1/9 is certified copy of Written Statement filed by plaintiff in the capacity of defendant in Suit No. 75/03. Ex. PW1/10 is the order passed in Suit No. 75/03 and Ex. PW1/11 is the legal notice dated 15.01.2008. PW3 in her evidence proved execution of documents Ex. PW1/3 to Ex. PW1/7. PW5 proved site plan Ex. PW5/A. CS No. 8913/16 Page No. 8/27 Shri Shivji Rai Vs. Shri Nand Lal Rai
15. In DE, defendant examined himself as DW1 and Govind Dass was examined as DW2. After evidence was concluded, an application was filed by plaintiff seeking appointment of a Local Commissioner for verifying the nature of construction done on the suit property and its present Municipal Number for its identification. The said application was allowed and the Local Commissioner filed his report providing the nature of the construction and the number of the plot of suit property as
30.
16. Fina arguments heard. Record perused.
17. The issue wise findings as under: Issue no.1 Whether the present suit is without any cause of action ? OPD The onus to prove this issue was conferred on the defendant. The plaintiff in the plaint has averred that cause of action for filing the suit arose in July 2000 when the plaintiff noticed that defendant illegally and unauthorizedly entered into the possession of the suit property and thereafter cause of action arose on different occasions when defendant refused to act upon the request of the plaintiff to vacate the suit property. The defendant was obligated to establish that no cause of action arose in favour of the plaintiff for filing the present suit. It has come in evidence that plaintiff and defendant were in Coal Business and they both were running the said business. As per the averment in the plaint, plaintiff being exserviceman and a native of Bihar used to visit his native place. As per the evidence, plaintiff when left for his native place left his property under the watch of defendant CS No. 8913/16 Page No. 9/27 Shri Shivji Rai Vs. Shri Nand Lal Rai being his partner, and defendants entry in the property unauthorizedly and illegally gave rise to a valid cause of action to plaintiff to file the instant suit. It is a matter of fact that defendant asserted his ownership on the basis of possession of suit property and on the other hand plaintiff on the basis of title documents, therefore, a valid cause of action subsisted in favour of the plaintiff for suing the defendant on the basis of title documents. The plea of the defendant that no cause of action ever arose in favour of the plaintiff appears to be groundless. Accordingly, this issue is decided in favour of the plaintiff and against the defendant. Issues no. (ii) and (iii)
(ii) Whether the defendant is entitled to a decree of declaration as prayed in the counter claim?OPD and
(iii) Whether the defendant is entitled to a decree of permanent injunction as prayed in the counter claim?OPD Both these issues are interconnected and they are being dealt together. The onus to prove these issues was conferred on the defendant. The counterclaimant/defendant has raised objections qua the documents executed by Satpal in favour of Savita Bansal and documents executed by Savita Bansal in favour of plaintiff. The counterclaimant/defendant has sought declaration to declare Ex. PW1/3 to Ex. PW1/7 as null and void. Also, counter claimant/defendant has sought a Permanent Injunction against the plaintiff for using these documents for any purpose. The counterclaimant/defendant has himself admitted to be an occupant of the suit property with the remaining portion both measuring 200 sq. yds. in total for the last 26 years from the CS No. 8913/16 Page No. 10/27 Shri Shivji Rai Vs. Shri Nand Lal Rai date of filing of counter claim. In simple terms, the counter claimant had merely the possession of the suit property. The right of the counterclaimant is premised on the possession and not on account of the documentary evidence relating to the title of the suit property. The counterclaimant/defendant is not executant of documents Ex. PW1/3 to Ex. PW1/7, therefore, the counter claimant/defendant has no authority to challenge the veracity, legality of the document executed between Satpal and Savita Bansal and Savita Bansal and the plaintiff as his claim is based not on account of those documents but on the basis of the possession only. The counterclaimant/defendant has not based his claim on the basis of title, so, the relief of declaration cannot be granted to him. Further, the objection of the counter claimant/defendant that Ex.PW1/3 to PW1/7 are not valid as they are not signed by the plaintiff is unsustainable as they were executed for valid consideration and it is not necessary for the plaintiff to have them signed. It is pertinent to note that an Agreement to Sell comes into existence when the vendor agrees to sell and the purchaser agrees to purchase for an agreed consideration. The said agreement can be oral or a written document which may not be signed. Similarly, the objection of the counterclaimant/defendant relating to Ex. PW1/1 and PW1/2 is also unsustainable.
The objection of the defendant qua the title documents is untenable in the eyes of law as defendant has no locus standi to dispute the ownership of the plaintiff and the previous owner than plaintiff in a suit for possession filed by the CS No. 8913/16 Page No. 11/27 Shri Shivji Rai Vs. Shri Nand Lal Rai plaintiff herein against the defendant on the premise that defendant is a trespasser by showing that plaintiff has not only better entitlement to possession than defendant. The objection of the counter claimant is not capable of denuding the documents Ex. PW1/3 to Ex. PW1/7 of their legal sanctity and validity. The plaintiff has shown title documents in his favour in the form of Agreement to Sell, GPA, Affidavit, Will and Receipt qua the suit property executed in his favour by previous owner Savita Bansal(PW1). The plaintiff paid consideration for purchasing the suit property. In 'Ramesh Chand Vs. Suresh Chand' 188(2012) DLT 538, it was held by Hon'ble High Court of Delhi, "That the Power of Attorney given for consideration coupled with intent is irrevocable under Section 202 of Indian Contract Act and subsists even after the death of the executant. It was further held that purchaser may not be a classical owner as would be an owner under the registered sale deed but surely he would have better rights/entitlement of possession than the person who is in actual physical possession."
From the facts, it is evident that counter claimant/defendant has based his claim only on the basis of possession. Neither the defendant pleaded to be the owner of the suit property by way of title documents nor has he been able to raise a cloud over the title of the plaintiff as his objections were found groundless, so, he is not entitled to the relief of Declaration.
So far as the prayer of Permanent Injunction is concerned, the Hon'ble Supreme Court in Anathula Sudhakar CS No. 8913/16 Page No. 12/27 Shri Shivji Rai Vs. Shri Nand Lal Rai vs. P. Buchi Reddy (Deceased) by LRs & Ors. Decided on 25th March, 2008 (Appeal) Civil 6191 of 2001, held that :
"11. .....the general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and /or possession with injunction as a consequential relief, are well settled. We may referred to them briefly.
11.1. Where a plaintiff is in lawful of peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simplicitor will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
11.2. Where the titled of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, can not seek the relief of injunction simplicitor, without claiming the relief of possession.
11.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant. The plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenged to plaintiff's title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a tresspasser without any claim or title or an interloper......"CS No. 8913/16 Page No. 13/27
Shri Shivji Rai Vs. Shri Nand Lal Rai
17. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property is as under:
"where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with consequential injunction. Where there is merely an interference with plaintiff lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor.
As a suit for injunction simplicitor is concerned, only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where dejure possession has to be established on the basis of the title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for condition, as without a finding thereon, it will not be possible to decide thereon, it will not be possible to decide the issue of possession.
But a finding on title can not be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific or implied) where the averment regarding the title are absent in a plaint and where there is no issue relating to the title, the Court will not investigate on examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issues, and the matter involves complicated question of fact and law relating to the title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
Where there are necessary pleadings regarding title, an appropriate issue relating to title or which parties lead evidence, of the matter involved in simple and straight forward, the Court may decide upon the issue regarding title, even a suit for injunction. But such cases are exception to the normal rule that question of title will not be decided in suit for injunction. But persons having clear title and possession suits for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration merely because some meddler CS No. 8913/16 Page No. 14/27 Shri Shivji Rai Vs. Shri Nand Lal Rai vexatiously or wrongfully makes a claim or tries to encroach upon his property. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case............"
The counterclaimant/defendant is in possession but without any title and as per his own averment, he stated that he occupied the suit property and held possession of the same as same was lying vacant, open, unused, neglected and unclaimed which fact stands contradicted from the evidence as plaintiff stated that he left the suit property under the watch of the counter claimant/defendant as they were both partners in coal business. The counter claimant/defendant admitted the said fact by stating that he was in coal business with the plaintiff and also stated that plaintiff embezzled some amount from the partnership firm by taking advantage of his illiteracy. It is noteworthy that the said statement of the counterclaimant/defendant reflect that he occupied the plot of plaintiff unauthorizedly just to settle accounts with the plaintiff without knowing that law does not permit such illegal usurption of property by anyone. It is pertinent to note that PW3 Savita Bansal deposed before the court that she sold 100 sq. yds. to plaintiff and another 100 sq. yds. to counter claimant/defendant. The counter claimant/defendant conveniently did not say a word to contradict the fact of sale of portion of plot measuring 100 sq. yds. to him by PW3. The counter claimant/defendant asserts his claim on the entire 200 sq. yds. which includes the portion of the plaintiff maintaining that he CS No. 8913/16 Page No. 15/27 Shri Shivji Rai Vs. Shri Nand Lal Rai occupied the same being a vacant plot.
In previous suit filed by counterclaimant/defendant, the plaintiff herein made a statement before court that defendant herein shall not be dispossessed without due process of law and on the basis of the statement of plaintiff herein, the said suit was compromised. The plaintiff herein has rightly taken resort to the legal remedy by filing the present suit for seeking eviction of the defendant from the suit property on the basis of sale documents executed in his favour. So far as the plea of the counter claimant/defendant that plaintiff has admitted the fact of his ownership in the previous suit is concerned, the same is exfacie baseless as counterclaimant/defendant has withdrawn his plea of adverse possession at the time of final arguments and once the said plea has been withdrawn, the previous suit filed by him on the said premise loses its effect. The said plea is also groundless and contrary to the record on account of fact that any person in possession can file a suit for Injunction Simplicitor and same may be withdrawn by him upon the statement of the defendant that he will not be dispossessed without due process of law and such statement cannot be construed as an admission on the part of the defendant qua the ownership of the plaintiff.
As per the plaintiff, he left his property under the watch of the counterclaimant/defendant while he was going to his native place gives an indication that the position of the counter claimant/defendant was akin to a caretaker or a watchman. In this regard, the Court would cite here a case titled as 'Maria Margarida Sequeira Fernandes Vs. Erasno Jack de Sequire CS No. 8913/16 Page No. 16/27 Shri Shivji Rai Vs. Shri Nand Lal Rai (2012) 5 SCC 370', wherein the Hon'ble Supreme Court held as under:
"(a) No one acquires title to the property if he or she was allowed to stay in the premises gratutiously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
(b) Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or the servant has to give possession forthwith on demand.
(c) The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, caretaker or a servant.
(d) The protection of the court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.
(e) The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.
It was further held that possession would be an important fact when no documents or records are available. However, in cases where documents are available, the title must be examined first and given due weightage."
In view of the judgment(supra), this court comes to the conclusion that counterclaimant/defendant is not entitled to injunction against the rightful owner of the suit property. Further, plaintiff has approached the court by way of due process of law and defendant having no right, title or interest in the property, is not entitled for a decree of permanent injunction against a rightful owner.
In the light of the law laid down by superior courts, it can be easily inferred that plaintiff has been able to establish from CS No. 8913/16 Page No. 17/27 Shri Shivji Rai Vs. Shri Nand Lal Rai the documentary evidence i.e. Ex. PW1/3 to Ex. PW1/7 that he has a right, title or interest in the suit property which scores better than the defendant who simply is resisting the claim of the plaintiff on account of illegal possession. Accordingly, plaintiff is also not entitled for a decree of permanent injunction against a rightful owner of the suit property. Both these issues are decided against the defendant.
Issue No. (iv) Whether the counter claim filed by the defendant is barred by limitation as alleged?OPP The onus to prove this issue was conferred on the plaintiff. The Counterclaimant/defendant has sought relief of Declaration and Permanent Injunction against plaintiff. Counter claimant/defendant pleaded in the counter claim which was filed on 18.03.2009 that he is in possession of suit property for the last 26 years. The Limitation for Declaration of Title and Possession is 12 years, as such it is apparent that the counter claim is filed beyond the period of limitation. This issue is decided in favour of plaintiff and against the defendant.
Issue No. (v) Whether the defendant has not valued the counterclaim properly for the purpose of court fees & jurisdiction?OPP The onus to prove this issue was conferred on the plaintiff. The plaintiff has failed to adduce any evidence to prove that counter claim has not been valued properly for the purpose of court fees and jurisdiction. In the absence of any evidence, the valuation done by counterclaimant/defendant will be taken as CS No. 8913/16 Page No. 18/27 Shri Shivji Rai Vs. Shri Nand Lal Rai correct. Accordingly, this issue is decided in favour of the defendant and against the plaintiff.
Issue No. (vi) Whether the plaintiff is entitled to a decree of possession of suit property as claimed?OPP The onus to prove this issue is conferred on the plaintiff. As per the evidence, Smt. Savita Bansal became owner of entire 200 sq. yds. of property by virtue of documents Ex. PW1/1 to Ex. PW1/2 executed in her favour by previous owner Sh. Satpal. Satpal was summoned and despite service and coercive measures, he did not appear before the court which give rise to a presumption that he has nothing to say against the execution of these documents. Further, the execution of these documents was proved by Smt. Savita Bansal. The objection qua these documents raised by Counterclaimant/defendant was found to be groundless.
The plaintiff has claimed ownership by virtue of documents Ex. PW1/3 to Ex. PW1/7 executed in his favour qua 100 sq. yds. of land being Plot No. 26 falling under Rect. No. 38, Killa No. 18 situated at Village Karawal Nagar in the abadi area of Amar Vihar, Shahdara, Delhi - 110094 by Smt. Savita Bansal. As per the testimony of Savita Bansal, she executed documents Ex. PW1/3 to Ex. PW1/7 for consideration in favour of the plaintiff. She also deposed that she purchased 200 sq. yds. from Satpal and sold 100 sq. yds. to plaintiff and another 100 sq. yds. to defendant. Although she could not tell in her crossexamination the finer details of the suit property, the same would not make any CS No. 8913/16 Page No. 19/27 Shri Shivji Rai Vs. Shri Nand Lal Rai difference as it is apparent from the evidence that she sold the suit property in a very short span of time after purchasing it from Satpal. It is also noteworthy that PW4 who is husband of PW3 admitted that PW3 executed documents Ex. PW1/3 to Ex. PW1/7 on 06.05.1997 and also corroborated the fact that out of 200 sq. yds., PW3 sold 100 sq. yds. to plaintiff and another 100 sq. yds. to defendant. PW4 identified the suit property through site plan Ex. PW5/A. The counterclaimant/defendant did not ask any question from PW3 regarding the portion of property which she is stated to be sold to him out of 200 sq. yds., which exposes the falsity of the claim of counterclaimant/defendant as he claimed that he occupied a vacant plot of 200 sq. yds.
So far as the plea of the defendant that no stamp vendor name, advocate's address and other details are mentioned on documents Ex. PW1/3 to Ex. PW1/7, same are insignificant in the backdrop of the testimony of PW1 and PW3 as both the executors have proved the execution of these documents to the satisfaction of the court. Further, the notarization gives a presumption in favour of their valid execution. In this regard, the judgment of Hon'ble Supreme Court titled as Suraj Lamps and Industries Private Limited Versus State of Haryana 183(2011) DLT 1 SC, the Hon'ble Apex Court has held that:
".........making declaration that GPA, Sales and S.A./GPA/Will transfers are not legally valid modes of transfer and is likely to create hardship to a large number of persons who have entered into such transaction and they should be given sufficient time to regularize the transactions by obtaining deeds of conveyance and CS No. 8913/16 Page No. 20/27 Shri Shivji Rai Vs. Shri Nand Lal Rai the decision is to be applied prospectively."
The documents Ex. PW1/3 to Ex. PW1/7 relate to the year 1997 prior to the aforesaid decision of the Hon'ble Apex Court.
The plea of the defendant that the documents Ex. PW1/3 to Ex. PW1/7 are forged and fabricated appears to be vague and baseless as defendant could not produce any evidence to rebut the claim of the plaintiff regarding due execution of these documents in his favour by Savita Bansal who purchased the property from Satpal. The defendant has filed MCD tax receipts and other utility bills to prove his ownership, however, it is trite law that MCD and other conveniences user charges do not confer any right, title or interest in the suit property. The reliance of the defendant on the documents pertaining to MCD user fees, electricity charges, is highly misplaced for the purpose of establishing his ownership. Through these documents, defendant has unsuccessfully attempted to debunk the ownership claim of the plaintiff.
From the evidence, it is coming out that PW1 was doing business of Coal from the year 19951998 with the defendant and business was looked after by defendant alongwith the maintenance of the record. Plaintiff raised construction i.e. boundary wall, two rooms in the suit property. PW1 told the location of the suit property in the East and West Direction. Plaintiff being a retired Sargent from the Indian Air Force was doing the coal business with the defendant and used to go to his CS No. 8913/16 Page No. 21/27 Shri Shivji Rai Vs. Shri Nand Lal Rai native place leaving his property under the watch of defendant. It appears to be quite plausible and reasonable on the part of the plaintiff to leave the property under the watch of his partner while leaving the city. The plaintiff being older than the defendant and under the trust for reasons of business and having the same native place had left the property under the watch of defendant. It is evident that upon noticing that defendant has illegally entered into the suit property, the plaintiff took all possible measures right from personal requests to police complaint for seeking vacation of suit property by defendant. Also plaintiff sought resolution through mutual discussion and failing which he was prompted to file the present suit. In the evidence, counterclaimant/defendant has deposed that plaintiff committed embezzlement in the accounts of the partnership, however, same do not give any right to the counterclaimant/defendant to grab his property which was lying in trust under him.
It is interesting that the defendant had filed an earlier suit against the plaintiff herein seeking relief of permanent injunction. He claimed ownership on the suit property by virtue of adverse possession. On a statement made by defendant(plaintiff herein) that plaintiff(defendant herein) shall not be dispossessed without due process of law, the said suit was disposed off. This development before the filing of present suit fortifies the claim of the plaintiff herein as through previous suit defendant wanted to protect his possession from the unlawful dispossession which shows the jural relationship between them pointing out the fact that plaintiff had the better right and entitlement of possession CS No. 8913/16 Page No. 22/27 Shri Shivji Rai Vs. Shri Nand Lal Rai than him.
The testimony of PW2A who was a Kanungo reflects that the revenue records were maintained till 1984 - 1985 and not thereafter and during the relevant time, the property in question stood registered in the name of Prithviraj. In the present matter the transaction relates to 1997, as in 1997 Satpal executed documents in favour of PW3. Since revenue records are till 1984 to 1985, they are insufficient to hold that property in question was never owned by Satpal as it may have been possible that after 198485, property after changing hands reached to Satpal who was the rightful owner till the execution of documents Ex. PW1/1 and Ex. PW1/2. The plea of the defendant that he holds the suit property to the knowledge of previous owner Prithvi Raj remains unsubstantiated with record as the revenue records could not provide the complete details after 1984 - 1985.
It is interesting that defendant who resisted the claim of the plaintiff on the premise of adverse possession which he pleaded in his Written Statement as well as counter claim, took a somersault by withdrawing the said plea at the time of final arguments which is reflective of his oblique motive to somehow create or manufacture a defence just to suit his cause dehors the merit. Now, at this juncture when defendant has withdrawn his plea of adverse possession, his reliance on the evidence of previous suit No. 75/03 is baseless as the basis of his previous suit was adverse possession. The record shows that defendant had denied the sworn facts in his crossexamination. Defendant had through out maintained that plaintiff was his partner in coal CS No. 8913/16 Page No. 23/27 Shri Shivji Rai Vs. Shri Nand Lal Rai business, however, in his crossexamination, he denied having business of coal in partnership with plaintiff. Also, he claimed ownership on the suit property by virtue of adverse possession from plaintiff. However, he denied the said fact in his cross examination and stated that he claimed ownership by way of adverse possession against Prithvi Raj and not against the plaintiff.
Defendant has drastically changed his statement reflecting his defence and claim. The testimony of defendant is riddled with glaring inconsistencies which exposes the truthfulness of his claim. Defendant conveniently remained silent about the ownership of another portion of 100 yds. which PW3 sold to him. The plea of the defendant having occupied a vacant piece of land measuring 200 sq. yds. without the knowledge of real owner appears to be baseless and farfetched. Rather it appears plausible and reasonable that defendant being owner of 100 sq. yds. entered into the portion of the plaintiff while he was away by misusing the trust of him.
All these facts taken in totality go to show that defendant tried to somehow create a defence in order to protect his illegal possession and deprive the plaintiff of the same. The defendant had unsuccessfully changed his stand as per his convenience in order to suit his cause. On the other hand, plaintiff has firmly established his case on the basis of documentary evidence. The civil case is decided on balance of probabilities. The documentary evidence presented by the plaintiff in the form of Ex. PW1/3 to Ex. PW1/7 is sufficient to CS No. 8913/16 Page No. 24/27 Shri Shivji Rai Vs. Shri Nand Lal Rai construe that plaintiff is the owner of the suit property. As per the report of Local Commissioner, the suit property has now been numbered as Plot No. 30 which previously was 26. Accordingly, the suit of the plaintiff is entitled to recovery of possession of the suit property shown in red colour in site plan Ex. PW5/A. Issue No. (Vii) and (Viii) (Vii) Whether the plaintiff is entitled to a decree of recovery of Rs. 2,88,000/ as claimed?OPP
(viii) Whether the plaintiff is entitled to interest on a sum of Rs. 2,88,000/, if yes, at what rate and for what period?OPP Both these issued are interlinked and same are decided together. The onus to prove these issue was conferred on the plaintiff. The plaintiff has not adduced any evidence to prove that he is entitled to recovery of Rs. 2,88,000/ from the defendant on account of mesne profits and damages alongwith interest. Only an averment has been made in the plaint and same could not be proved by way of evidence. Although the facts indicate that counterclaimant/defendant had been in illegal possession of suit property for long, however, for the purpose of awarding mesne profit/damages, plaintiff was obligated to adduce evidence but same was not adduced by plaintiff. Accordingly, these issues are decided in favour of defendant and against the plaintiff.
Issue No. (ix)
(ix) Whether the plaintiff is entitled to a decree of permanent injunction as prayed for?OPP CS No. 8913/16 Page No. 25/27 Shri Shivji Rai Vs. Shri Nand Lal Rai Since plaintiff is the owner of the suit property i.e. 100 sq. yds. of land being Plot No. 26 falling under Rect. No. 38, Killa No. 18 situated at Village Karawal Nagar in the abadi area of Amar Vihar, Shahdara, Delhi - 110094 shown in red colour in site plan Ex. PW5/A having new number Plot No. 30, the defendant/counterclaimant his agents, assignees, servants, attorney are permanently restrained from alienating, selling, transferring, disposing off, parting with possession and/or creating any third party interest in the suit property. Relief The suit of the plaintiff is decreed in following terms:
(I) Defendant is directed to deliver the possession of suit property i.e. 100 sq. yds. of land being Plot No. 26 falling under Rect. No. 38, Killa No. 18 situated at Village Karawal Nagar in the abadi area of Amar Vihar, Shahdara, Delhi - 110094 shown in red colour in site plan Ex. PW5/A having new number Plot No. 30 to plaintiff forthwith.
(ii) The defendant/counterclaimant his agents, assignees, servants, attorney are permanently restrained from alienating, selling, transferring, disposing off, parting with possession and/or creating any third party interest in the suit property i.e. 100 sq. yds. of land being Plot No. 26 falling under Rect. No. 38, Killa No. 18 situated at Village Karawal Nagar in the abadi area of Amar Vihar, Shahdara, Delhi - 110094 shown in red colour in site plan Ex. PW5/A having new number Plot No. 30.
(iii) Plaintiff is awarded the costs of the suit.
(iv) Counterclaim of the defendant/counterclaimant is dismissed.
CS No. 8913/16 Page No. 26/27Shri Shivji Rai Vs. Shri Nand Lal Rai Decree sheet be prepared accordingly.
File be consigned to Record Room.
Announced in open Court. Digitally
signed by
Delhi Dated the 11.09.2019 PANKAJ
PANKAJ
SHARMA
This Judgment contains 27 pages SHARMA Date:
2019.09.12
12:25:30
and each page is signed by me. +0530
(Dr. PANKAJ SHARMA)
ACJcumCCJcumARC(E)
KKD Courts, Delhi
CS No. 8913/16 Page No. 27/27