Delhi District Court
Manohar Lal Sharma vs Shri Ravi Sharma on 22 March, 2022
IN THE COURT OF HEM RAJ
ADJ-08 : Central District : Room No. 152 : THC : Delhi.
RCA No. 132/2019
Unique ID No.: DLCT01-013811-2019
In the matter of:
Manohar Lal Sharma,
S/o Late Deep Chand Sharma,
R/o 1st Floor, H. No. WZ-43,
Nimri Village, Shartri Nagar,
Delhi-110052. ..............Appellant
Versus
1. Shri Ravi Sharma,
S/o Sh. Manohar Lal Sharma,
R/o 2nd Floor, H. No. WZ-43,
Nimri Village, Shartri Nagar,
Delhi-110052.
2. Smt. Kavita Sharma,
W/o Ravi Sharma,
R/o 2nd Floor, H. No. WZ-43,
Nimri Village, Shartri Nagar,
Delhi-110052. ..............Respondents
Date of institution : 10.10.2019.
Date of pronouncement : 22.03.2022.
of Judgment
RCA No. 132/2019 Page No. 19 of 19
For Appellant : Sh. D.S. Khatri, Advocate.
For Respondents : Sh. Ajay Gupta, Advocate.
JUDGMENT
1. An unsuccessful plaintiff has laid a challenge to the judgment and decree dated 05.09.2019 ('impugned judgment') of Ld. Civil Judge-09, Central, Delhi ('Trial Court') dismissing his suit for eviction by way of mandatory injunction, damages/mesne profits and permanent injunction.
2. The appellant and the respondent would be called as plaintiff and the defendants, as per their original ranks before the trial Court.
3. The plaintiff claiming himself to be owner of the property bearing No. WZ-43, Nimri Village, Shastri Nagar, Delhi-110052 filed the suit against the defendants. The defendants were in possession of ground floor and the second floor ('suit property') of the said property. He averred that one Shri Mangal Singh and he purchased land measuring 100 square yards from the Government vide receipt bearing No. 37 dated 06.08.1961 issued jointly. They divided the land into two equal portions. The plaintiff constructed his house which was numbered as WZ-43, Nimri Village, Shastri Nagar, Delhi-110052. The defendant no. 1 alongwith defendant no. 2 and their two minor sons RCA No. 132/2019 Page No. 19 of 19 were in occupation of ground floor and second floor of the suit property as licensee of the plaintiff. The defendant no. 1 filed a civil suit for permanent injunction against the plaintiff and his younger son. The plaintiff then terminated the license of the defendants vide legal notice dated 03.01.2012 and asked them to handover the possession of the suit property. The defendants replied it but did not handed possession of the suit property to the plaintiff. Hence, the plaintiff filed the suit against the defendants.
4. The defendants stated that Gaon Sabha/Gram Panchayat, was the owner of the suit property, which is not made a party. The jurisdiction of the Court was also challenged relying on section 185 of Delhi Land Reforms Act. They further claimed that suit property was given to the entire family members of the plaintiff by the Gaon Sabha/Gram Panchayat under 20 point program for the landless families of village and, thus, the plaintiff was not the exclusive owner of the suit property. They further challenged the genuineness of receipt bearing no. 37. They further stated that defendant no. 1 had also contributed in the construction of the suit property.
5. The trial Court dismissed the suit of the plaintiff holding that the plaintiff could not prove that he is the sole and exclusive owner of the suit property and the defendants have proved that the plaintiff is not the sole and exclusive owner of the suit property. Since, the plaintiff was not able to prove the ownership, hence, the reliefs of RCA No. 132/2019 Page No. 19 of 19 possession by way of mandatory injunction, permanent injunction and the mesne profits/ damages were not granted to the plaintiff.
6. The plaintiff assails the impugned judgment on the grounds that trial Court has failed to consider that the defendant did not discharge the onus to prove issue no. 1 as they had failed to prove any document thereof. The plaintiff further contended that the trial Court failed to consider that the plaintiff acquired statutory right as per Section 8 of Delhi Land and Reform Act and Rule 5 of Delhi Land and Reform Rules. He further argued that trial Court ignored the fact that the plaintiff acquired proprietary right of the suit property in the year 1962 and defendant no. 1 was born on 10.05.1979. He further canvassed that Ld. trial Court did not take into consideration the admission by defendant no. 1 in para-1 of his suit titled as Ravi Sharma v. Mahohar Lal Sharma, wherein he admitted that the suit property was allotted to landless persons in the year 1962 by Gaon Sabha. He further argued that trial Court has failed to consider the fact that defendants were the licensee of the plaintiff in respect of suit property and their license was duly terminated by the plaintiff. In support of his arguments the plaintiff has relied upon the following judgments in the cases of; Gaon Sabha Budhela v. Dharam Singh, (1984) 86 PLR 127, Laxman Sigh and others v. Urmila Devi and others. 2014 Lawsuit (Del) 1346, Bansraj Lalta Prasad v. Stanley Parker Jones 200 AIR (SC) 3569, S.K. Sharma v. Mahesh Kumar Verma 2002 AIR (SC) 3294, Chandu Lal v. Municipal Corporation RCA No. 132/2019 Page No. 19 of 19 of Delhi, 1978 AIR (Del) 174, and Sant Lal Jain v. Avtar Singh, 1985 (2) SCC 332.
7. Defendants have not filed any reply to the appeal and straightaway argued on the same. Ld. Counsel for defendants has argued that plaintiff has failed to prove the ownership of the suit property in his favour. They submit that no record pertaining to L.R. Form dated 08.06.1961 was available with the plaintiff else he would have stated about the same in document Ex.PW-6/1 which is the affidavit of the plaintiff dated 15.03.1967. He drew the attention of the court on Para-1 (c) and 3 of the affidavit. He also invited attention of the court to the order dated 22.12.1967 submitting that in the order it has been mentioned specifically that the construction was pretty old, therefore, no action was taken. He argued that in the year 1967 the construction was old as per the order which means that the plaintiff had not constructed the plot over there. He further submitted that PW- 4 deposed that Gaon Sabha is the owner of the suit property which controverts the claim of the plaintiff that he is the owner of the suit property. He further argued that plaintiff has not made Gaon Sabha as a party in the suit which was a necessary party, therefore, the suit of the plaintiff was not maintainable for non-joinder of the necessary parties. He further argued that onus to prove issue no. 1 upon him was wrongly placed by the trial Court as it was for the plaintiff to prove that he was the owner of the suit property. He further submitted that the trial Court has no jurisdiction in view of Section 185 of Delhi RCA No. 132/2019 Page No. 19 of 19 Land and Reforms Act. He further argued that since the title of the plaintiff was under cloud, therefore, his suit without seeking declaration was not maintainable. He relied upon the authorities in the cases of; Vishwa Vijai Bharti v. Fakhrul Hasan & Ors. (1976) 3 SCC 642, Wali Mohammad (Deceased) by LRs v. Ram Surat & Ors. 1989 AIR 2296 SC, Jagpal Singh & Ors. v. State of Punjab (2011) 11 SCC 396, Nagar Palika, Jind v. Jagat Singh, Advocate (1995) 3 SCC 426, Corporation of City of Bangalore v. Zulekha Bi & Ors. (2008) 11 SCC 306, Union of India and others v. Vasavi Co- op. Housing Society (2014) 2 SCC 269, Biraji @ Brijraji & Anr. v. Surya Pratap and Ors. AIR 2020 SC 5483, G. Jagir Singh v. Ranbir Singh (1979) 1 SCC 560, Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594 and Subhadara v. Surender Singh, 229 (2016) DLT 188.
8. I have heard the arguments advanced by Ld. Counsel for the parties and perused the record carefully. I have also gone through the judicial pronouncements relied upon by the parties.
9. Vide order dated 10.01.2013 the Ld. trial Court framed the following issues:-
(i) Whether the plaintiff is not a sole and exclusive owner of the suit property? OPD.RCA No. 132/2019 Page No. 19 of 19
(ii) Whether the plaintiff is entitled to the relief of mandatory injunction as prayed for? OPP
(iii) Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP
(iv) Whether the plaintiff is entitled to the damages/mesne profits, if any, at what rate and for what period? OPP
(v) Relief.
10. Issue no. 1 was framed to the effect whether the plaintiff is not a sole and exclusive owner of the suit property. The onus to prove the same was laid down on the defendant. Ld. Counsel for the defendant argues that the onus to prove the ownership of the suit property in the plaintiff should have been upon the plaintiff as it is the case of the plaintiff that he purchased the suit property from his own funds from the government vide receipt no 37. He further argued that it is well settled principle of law that the plaintiff has to succeed on the strength of his case and not on the weakness of the case set up by the defendant. He further argued that the burden always lies upon the plaintiff to prove and establish his case and the weakness of the case of the defendant, if any, should not be a ground to grant the relief to the plaintiff.
RCA No. 132/2019 Page No. 19 of 1911. On the other hand, Ld. Counsel for the plaintiff has argued that the onus was rightly put up on the defendant to prove the fact that the plaintiff was not the sole and exclusive owner of the suit property. He relied upon the stand of the defendant in the WS filed in this case wherein he stated that the plaintiff is not the exclusive owner of the suit property. He further argued that the defendant also stated that Gram Sabha, Nimri Village is the owner of the property. He further argued that in the suit filed by the defendant against the plaintiff in paragraph 1 of the said plaint, the defendant had admitted that the suit property is a Gram Sabha land and the same is allotted to the landless persons in the year 1962. He also relied upon paragraph 4 of the said plaint wherein the defendant herein averred that the suit property was allotted for residence to the defendant no. 1 and his family members being landless persons. He contented that the trial Court has after having perused the pleadings and the documents of the parties, rightly put the onus to prove the issue no. 1 on the defendant and the defendant had to prove that the plaintiff is not the sole and exclusive owner of the suit property.
12. In my opinion, the onus to prove the issue no. 1 whether the plaintiff is not a sole and exclusive owner of the suit property, was rightly put upon the defendant. The specific case of the plaintiff is that he is the owner of the suit property having purchased the same from the Government vide receipt bearing no. 37 dated 08.06.1991. The said land was jointly purchased by him alongwith one Mangal Singh.
RCA No. 132/2019 Page No. 19 of 19The defendant in his WS claimed that the plaintiff is not the sole and exclusive owner of the suit property. In the suit filed by the defendant against the plaintiff the defendant has admitted that the suit land was allotted to the plaintiff in the year 1962 and further that Gram Sabha allotted the land to the plaintiff and his family members being landless persons.
13. Hence, the burden to prove the fact that plaintiff is not the sole and exclusive owner of the suit property lied on the defendant. The defendant has, in a way, admitted that the plaintiff is at least, the co-owner of the suit property. Hence, it was the duty of the defendant to prove that plaintiff is not the sole and exclusive owner of the suit property. The argument advanced by Ld. Counsel for defendant that the onus to prove the issue no. 1 was wrongly placed upon the defendant, is without substance and hereby rejected.
14. Let us see, if the defendants have discharged the onus or not. In other words whether the defendants have proved that plaintiff is not the sole or exclusive owner of the suit property. The defendant no. 1 examined only him to prove his case. He did not prove any document on the record. He deposed that LR Form-37 did not show that the suit property was purchased by the plaintiff. In February, 2018 the defendant was examined on oath, wherein he deposed his age as 36 years and his year of birth goes back to the year 1982. Therefore, it RCA No. 132/2019 Page No. 19 of 19 is apparent that in the year 1962 he could not have had any concern with the suit property.
15. The trial Court gave finding on the issue no. 1 that the plaintiff could not prove the ownership of the suit property and only placed the photocopy of LR Form-37, Mark X, which could not be considered as a title document. In my opinion, this finding is against the evidence on the record as it was for the defendant to prove that the plaintiff was not the sole and exclusive owner of the suit property. The trial Court further observed that PW-4 deposed in his cross examination that as per the revenue record, the suit property belongs to Gram Sabha and the Gram Sabha is the owner of the suit property. However, no document has been proved by this witness. This oral testimony of the witness cannot be relied upon in the absence of any document being proved on record. This witness was called by the plaintiff to prove the LR Form-37, who deposed that the record pertaining to LR Form-37 was not available with the department. Hence, the oral testimony of this witness would not help the defendant.
16. The trial Court further observed that in the record proved by PW-6 as Ex.PW-6/1, the plaintiff had stated that the plaintiff had been in possession of the land since the time of his grand-father and, thus, it is proved that plaintiff did not purchase the property in the year 1961. That reply was submitted by the plaintiff in the court of RCA No. 132/2019 Page No. 19 of 19 concerned SDM in response to the notice dated 15.03.1967 given by Under Secretary, Union of India. However, this averment in the reply cannot be held against the plaintiff as the defendants have not taken care to recall the plaintiff to cross examine him on the same and the plaintiff was not given an opportunity to explain the same. Merely in that document the plaintiff had stated that he has been in the suit property since the time of his grandfather is not fatal to him. There the plaintiff was concerned about protecting his possession and thus, the same cannot be held against the plaintiff.
17. Furthermore, the trial Court observed that since the plaintiff has not been able to prove the ownership, therefore, the defendant has proved that plaintiff is not a sole and exclusive owner of the suit property. However, in the entire judgment there is no discussion on the testimony of PW-6. The notice dated 15.03.1967 of Under Secretary, Union of India, to the plaintiff U/S. 86A of the Delhi Land Reforms (Amendment) Act, 1965 clearly shows that the plaintiff was in possession of the land in Khasra No. 174, which is 48 Square Yards of area. The plaintiff has also filed the reply thereof vide order dated 22.12.1967 of the concerned SDM, it was held that the spot inspection revealed the constructions over the land to be pretty old and was in line with the other constructions in the locality. The inspection note dated 29.11.1967 reveals that an inspection dated 15.03.1967 was conducted in the presence of the parties, the counsel for the defendant and the Panchayat Secretary, wherein it was found that the RCA No. 132/2019 Page No. 19 of 19 construction was pretty old. Thereafter, the notice was withdrawn. Ex.PW-6/2 which pertains to Sh. Mangal Singh, also revealed that similar notice dated 15.03.1967 was given to him as well. The notice was withdrawn vide order dated 22.12.1967 by the concerned SDM. Similar is the inspection note regarding the property of Mangal Singh.
Therefore, from the aforesaid evidence it is clear that the plaintiff and Mangal Singh were in possession of the land in the year 1967. The fact whether the plaintiff could not prove the ownership by way of documents is not relevant as the plaintiff has a better title, at least, in the suit property than the defendant, as the defendant no. 1 was not even born in the year 1967. Hence, the defendant could not have any better title than the plaintiff. The defendant also could not prove on the record that the suit property is the joint family property. No document has been proved by the defendant in the name of his grand-father. There is no document on the record which could show that the grand-father or the great grand-father of the defendant was ever in the possession or the ownership of the suit property. The earliest documents pertaining to the suit property are in the name of the plaintiff. In view of the aforesaid conclusion, I am of the considered opinion that the finding of the trial Court that the plaintiff is not the sole or exclusive owner of the suit property is contrary to the evidence available on record. Accordingly, this issue stand decided in favour of the plaintiff and against the defendants.
RCA No. 132/2019 Page No. 19 of 1918. The trial Court refused to grant the relief of possession by way of mandatory injunction to the plaintiff on the ground that since it has not been proved on record that the plaintiff is the sole and exclusive owner of the suit property, therefore, this relief of possession by way of mandatory injunction cannot also be granted to the plaintiff. I have already held that the plaintiff has proved on record that he is the sole and exclusive owner of the suit property. Let us see if the plaintiff is also entitled to the relief of mandatory injunction. The plaintiff has served a legal notice dated 03.01.2012 to the defendants as Ex.PW-1/3. Plaintiff has also proved the postal receipts as Ex.PW-1/4 and Ex.PW-1/5. Plaintiff has also proved the original courier receipts as Ex.PW-1/6 and Ex.PW-1/7. By the said legal notice the plaintiff terminated the license of the defendants and asked them to hand over the possession within 15 days from the receipt of the notice. The said notice has not been denied as the defendants have replied the said notice vide their reply Ex.PW-1/8. The defendant was not involved in the land in any manner whatsoever in the year 1967 when the first admitted document pertaining to the property in the name of the defendant was made before the Ld SDM, therefore, defendant has no right in the suit property. The defendant was staying at the suit property at the wish of the plaintiff. Defendant no. 1 is the son of the plaintiff, therefore, the plaintiff having terminated the license of the defendant, is entitled to the peaceful possession of the suit property. Hence, it is held that the plaintiff is also entitled to this relief of possession by way of mandatory injunction.
RCA No. 132/2019 Page No. 19 of 1919. The trial Court has also refused to grant the relief of permanent injunction to the plaintiff on the ground that since the plaintiff had no sole or exclusive right in the suit property, therefore, this relief of permanent injunction also cannot be granted to the plaintiff. Since I have already held that the plaintiff is the sole and exclusive owner of the suit property, therefore, the plaintiff is also entitled to the relief of permanent injunction against the defendants. Accordingly, the defendants, their agents, assigns etc are restrained from creating any third party interest in the suit property. Hence, this issue no. 3 also stands decided in favour of the plaintiff and against the defendant.
20. The trial Court has also held that the plaintiff is not entitled to the relief of mesne profits as he was not the sole or exclusive owner of the suit property. In view of my finding that the plaintiff is the sole and exclusive owner of the suit property and further that plaintiff has terminated the license of the defendants, therefore, the defendants after the expiry of the 15 days from the receipt of the legal notice has been in authorized occupation of the suit property. Plaintiff in the legal notice had claimed the mesne profits at the rate of Rs.1,000/- per day till the time of the vacant possession of the suit property, however, he has not proved the same on record. In his cross-examination the plaintiff had deposed that he had let out the rooms on the third floor of the house at the rate of Rs.2,000/- per month. This positive averment in the deposition of the plaintiff has not RCA No. 132/2019 Page No. 19 of 19 been challenged by the defendants at all. In the absence of any cross examination that positive averment has to be deemed to be admitted. The defendants are in possession of the two floors of the suit property. Accordingly, I held that the plaintiff is entitled to mesne profits at the rate of Rs.4,000/- per month from 20.01.2012 till the vacant and peaceful physical possession of the suit property is handed over to the plaintiff. In Indian Oil Corporation vs Saroj Baweja, 2005(12) SCC 298, it was held that a person is also entitiled for interest on the mesne profits. Accordingly, the plaintiff is also held to the interest at the rate of 6% per annum on the amount due; however, this relief shall be subject to the payment of the court fees, if any, by the plaintiff.
21. Now let me consider the other contentions of the Ld. Counsel for the defendant. Ld. Counsel for the defendant has argued that suit of the plaintiff was not maintainable as the Gaon Sabha, Nimri should have been made a party as the land over which the suit property was constructed belongs to Gaon Sabha, Nimri. I have considered this argument and found that the argument is not sustainable in law. The defendant has not pressed any issue to such effect in the trial Court. Moreover, the plaintiff has filed the suit seeking eviction of the defendant from the suit property on the basis of license granted by the plaintiff. The relief sought by the plaintiff in the suit show that the presence of Gaon Sabha, Nimri was not necessary for the effective adjudication of the controversy involved in the suit.
RCA No. 132/2019 Page No. 19 of 19Hence, the Gaon Sabha, Nimri Colony was not a necessary party. Accordingly, the argument of the defendant is rejected.
22. Ld. Counsel for defendant further argued that the trial Court has no jurisdiction to decide the suit between the parties as the jurisdiction of the trial Court was barred in view of Section 185 of Delhi Land Reforms Act. This argument of the defendant is also not found maintainable as firstly no issue was got framed by the defendant in the trial Court nor any argument was raised to this effect before the trial Court and secondly, the defendant has not led any evidence on this aspect that the trial Court has no jurisdiction and its jurisdiction was barred under the provisions of Section 185 of Delhi Land Reforms Act. Hence, this submission is also rejected as being found without any merit.
23. Ld. Counsel for the defendant has further argued that in view of the judgment of Suraj Lamp and Industries (P) Ltd. v. State of Haryana, 183 (2011) DLT 1 (SC), it is clear that the plaintiff has failed to prove the ownership of the suit property. In my opinion the arguments of Ld. Counsel for the defendant placing reliance upon the judgment of Suraj Lamp (supra) is mis-placed and mis- conceived. The defendant had admitted the fact of the suit property being allotted to the plaintiff in the earlier suit filed by him against the plaintiff. I have already held that the plaintiff has proved on the record that he is the owner of the suit property and at least has a better title RCA No. 132/2019 Page No. 19 of 19 that the defendant and the defendant was only a licensee in the suit property. The defendant is not allowed to challenge the same in view of Section 116 of the Indian Evidence Act. Therefore, this argument is without any merit and accordingly, stands rejected.
24. Ld. Counsel for the defendant has further argued that the suit of the plaintiff was not maintainable in view of the judgment of Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594. He submitted that since the title of the plaintiff was under cloud, therefore, simplicitor suit for mandatory and permanent injunction without seeking the declaration and relief for possession is not maintainable. Again, I have to say that reliance of the Ld. Counsel on the judgment of Anathula Sudhakar (supra) is highly mis-conceived and mis-placed as the said judgment is not applicable in the present case. The defendant in his written statement had also conceded to the fact that the land upon which the suit property was constructed was allotted to the plaintiff by Gaon Sabha being landless person in the year 1962. Therefore, the title of the plaintiff viz-a-viz defendant was never in any cloud and suit of the plaintiff seeking possession by mandatory injunction on the ground that the defendant was his licensee whose license had been terminated is perfectly maintainable.
25. In view of the aforesaid discussions, the appeal of the plaintiff is allowed. Consequently, the suit of the plaintiff is decreed with the following reliefs:-
RCA No. 132/2019 Page No. 19 of 19(i) The plaintiff is entitled to a decree of mandatory injunction against the defendants and the defendants, their family members, representatives, attorneys, agents, legal heirs, assigns etc. are directed to remove their belongings, articles, machines etc. from the suit property bearing no. WZ-43, Nimri Village, Shastri Nagar, Delhi-110052 more specifically shown in red colour in the site plan annexed as Annexure-P with the plaint. The defendants are further directed to hand over the vacant peaceful possession of the suit property to the plaintiff.
(ii) The plaintiff is also entitled to a decree of mesne profits/damages for a sum of Rs.4,000/- per month along with interest @ 6% per annum from 20.01.2012 till its realization against the defendants, however, the said relief shall be subject to the payment of the additional court fees, if any.
(iii) The plaintiff is also entitled to a decree of permanent injunction against the defendants and the defendants are hereby restrained from selling, transferring, mortgaging, alienating the suit property as well as creating third party interest in the suit property.
26. The appeal of the appellant/plaintiff stands allowed. The suit of the plaintiff stands decreed accordingly. A certified copy of this judgment be placed in the record of the trial Court. Trial court record be sent back forthwith.
RCA No. 132/2019 Page No. 19 of 1927. The decree sheet be prepared accordingly.
28. Appeal file be consigned to Record Room after necessary Digitally compliance. HEM signed by HEM RAJ Date:
RAJ 2022.03.22
16:30:44
+0530
Pronounced in the open Court (HEM RAJ)
on 22nd March, 2022. Additional District Judge-08 Central District : Tis Hazari Courts Delhi.
RCA No. 132/2019 Page No. 19 of 19