* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) No.20/2009
% Date of Decision: 18.05.2009
P.K. Gupta and Another .... Plaintiffs
Through Mr.A.K. Bajpai, Advocate.
Versus
Sh. Mam Chand and others .... Defendants
Through Mr.Ravi Gupta and Mr.Ankit Jain,
Advocates.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? YES
3. Whether the judgment should be reported in YES
the Digest?
ANIL KUMAR, J.
* IAs No.120/2009, 1118/2009 and 1427/2009
1. These are the applications by the plaintiff under Order XXXIX Rules 1 and 2 (IA No.120/2009) seeking restraint against the defendants or any of their agents, employees from dispossessing the plaintiffs forcibly from the suit property, land measuring 28 biswas in Khasra No.711 min. situated at Village Burari, Delhi-110084 and under Order XXXIX Rule 2A (IA 1427/2009) for violating the interim order dated 9th January, 2009 and dispossessing the plaintiff and therefore attaching the properties of the defendants and for imprisonment of CS(OS) No.20/2009 Page 1 of 21 defendants and the application under Order XXXIX Rule 4 (IA No.1118/2009) by the defendants seeking vacation of interim order dated 9th January, 2009 on the ground that the plaintiff was never in possession of the suit property nor he has been dispossessed and therefore vacating the interim order and dismissing the applications of the plaintiffs.
2. The plaintiff has filed the above noted suit for permanent injunction contending inter alia that the plaintiff No.1 is a senior citizen and he with plaintiff No.2 had purchased the land measuring 28 biswas (1400 square yards) bearing Khasra No.711 min. situated at village Burari in the year 1981 by two separate registered sale deeds. It is contended that the possession of the land was given to the plaintiff in 1981 and the plaintiff had constructed a wall with one small room for storage of building materials like bricks, badarpur, rodi, etc. Plaintiffs pleaded that the property was mutated in the name of plaintiff by order dated 9th December, 1981. It is asserted that the defendants are unnecessarily harassing the plaintiffs with a view to dispossess them and attempts were made on 30th July, 2008; 26th August, 2008 and 30th October, 2008. It is also contended that it has come to notice of the plaintiffs that defendants are joint khatedar in the agricultural land measuring 46 bighas, however, defendants have already sold their lands and plaintiffs had not purchased the land from the defendants who are CS(OS) No.20/2009 Page 2 of 21 the cousin brothers of the persons from whom the plaintiffs have purchased the land.
3. Regarding the mutation of the property in the name of plaintiffs by order dated 9th December, 1981, it is further asserted that the said order was challenged in the first appeal before the Additional Collector, Shri R.K. Varma, who set aside the mutation and remanded the matter back for fresh consideration. The order dated 16th April, 1992 was challenged before the Financial Commissioner and before the High Court, however, the order dated 16th April, 1992 has not been set aside and plaintiffs have applied for fresh mutation of land in their names which is pending before the competent court.
4. The plaintiffs‟ grievance is that on 30th July, 2008, two/three persons of Village Burari illegally entered in the suit land and started giving filthy abuses and beating up the employees of the plaintiffs and the matter was reported to the police. On 25th August, 2008, the defendants along with two/three persons trespassed over the suit land and man-handled, abused and beat the employees of the plaintiffs and asked them to vacate the premises. Again on 28th December, 2008, the defendants along with two/three unknown persons again entered into the suit property and had beaten the employees, Kuldeep and Amit and also made an abortive attempt to dispossess the plaintiffs. The matter CS(OS) No.20/2009 Page 3 of 21 is alleged to have been reported to the police, however, they are alleged to be mixed up with the defendants and no action was taken. In the circumstances plaintiff filed above noted suit for injunction along with an application for interim injunction.
5. Along with the suit, the plaintiff filed sale deeds dated 12th November, 1981 executed by Shri Mahinder Singh for himself and as an attorney of Smt.Dayawanti, Moorti, Rajbala and Smt. Santosh, Smt.Nandi and Shri Kishan in favour of plaintiff no.1 & another sale deed of same date in favor of plaintiff no.2. The sale deeds dated 12th November, 1981 in para 2 also stipulated that the possession was handed over on the spot to the plaintiff No.1 and plaintiff no.2. A copy of order dated 9th December, 1981 of the ACO, Village Burari, ordering the mutation on the basis of registered sale deeds in favor of plaintiffs was also filed. The parties before passing of the order dated 9th December, 1981 were allegedly served by beat of drums and no one had appeared on behalf of vendors before the ACO. The plaintiffs also filed the copy of complaints allegedly sent under registered post dated 31st October, 2008 and 26th August, 2008 and 30th July, 2008.
6. On the basis of the allegations made in the plaint and the application, by an interim order dated 9th January, 2009, the defendants were restrained from disposing the plaintiff except without CS(OS) No.20/2009 Page 4 of 21 due process of law from the land measuring 28 biswas in khasra No.711 min. situated at Village Burari, Delhi-110084.
7. The summons and notices of the suit and application were allegedly refused by defendants on 16th January, 2009 and refusal is allegedly witnessed by Shri Amit, alleged to be a resident of Sakarpur, Burari, Gupta Farm House and an employee of the plaintiffs. An affidavit of service dated 17th January, 2009 was also filed by the plaintiffs deposing that the Process Server had gone to address of the defendants with employee of plaintiff No.1 and defendant No.1 had refused to accept the order and summons issued by the Court. The affidavit of Mr. Amit, alleged employee of plaintiff No.1, was, however, not filed.
8. The defendants thereafter filed IA No.1118/2009 under Order XXXIX Rule 4 seeking vacation of interim order dated 9th January, 2009 on the plea that the plaintiffs were never in possession of the suit premises and they have concealed the material facts and they are not entitled for any equitable relief in their favour. The defendants contended that the alleged sale deeds in favour of plaintiffs are void and illegal. It is contended by them that the defendants along with family members of Fakira were jointly holding the land in Village Burari. The consolidation proceedings had started in the village and upon CS(OS) No.20/2009 Page 5 of 21 finalization thereof the family was granted separate khatas for the agricultural as well as for residence within the said village. The genealogical table showing the joint holders of lands including the vendors of the plaintiffs is as under:
Rati Ram (Dead) Des Raj Fakira (Dead) Nandi (Wife) (Dead) Mam Chand Vijay Singh Zile Singh (D-1) (D-2) (D-3) Mahender Kishan Lilawat (son) (son) (son) Dayawti Moorti Rajbala Santosh (Daughter) (Daughter) (Daughter) (Daughter)
9. It is asserted that initially the defendants were allotted khasra No.711 min. admeasuring 400 square yards but later on this was made a joint holding of the family. Another plot of land bearing No.419 which was earlier allotted in the name of Fakira was also made the joint holding of the entire family.
CS(OS) No.20/2009 Page 6 of 21
10. The defendants asserted that plot No.419 was later on sold by all the family members in favour of other persons and a portion of land in plot No.419 was also purchased by the wife of defendant No.1 who is in possession thereof, however, the land in plot No.419 is not the subject matter of the present suit.
11. Regarding the land admeasuring 2800 square yards, it is contended that since this was a joint holding of defendants with Fakira, the same could not be sold by the legal heirs of Fakira to the plaintiffs. Regarding possession, it is contended that physical possession of the land was handed over to the defendants during the consolidation proceedings and had always remained with them and it was not with Fakira and his legal heirs. According to defendants, Fakira was never in physical possession and therefore there was no occasion to hand over the physical possession of the land to the plaintiffs. The defendants‟ plea is that the land has always been in their possession and they had constructed a boundary wall and a room which is under their lock and the land in Khasra No.711 min. is used by them for parking their tractors and other machineries required for the purpose of cultivation of their agricultural land which is in the same village. It is also contended that the electricity connection is installed in the name of defendant No.1, Shri Mam Chand, and the charges for the consumption of electricity are also paid by the defendant No.1 only. The defendant No.1 CS(OS) No.20/2009 Page 7 of 21 also contended that he is doing part-time business of building material which is also stored in the suit land.
12. Regarding mutation of the land by order dated 9th December, 1981, it was contended that aggrieved by the said order an appeal was filed which was decided by Shri R.K. Verma, Additional Collector, Delhi, by his order dated 16th April, 1992 and the mutation in favour of plaintiffs was quashed. The order quashing the mutation in favour of plaintiff by order dated 16th April, 1992 was challenged in appeal and thereafter in the writ petitions, however, they were dismissed. The defendants also relied on extended abadi certificate dated 30th September, 1992 issued in favour of defendants which was obtained by them with the purpose of getting an electricity connection.
13. The defendants also relied on a suit filed by son of Shri Fakira, Shri Lilawat where defendants were also impleaded as a party which was decided by judgment and decree dated 16th March, 1985 by Sub Judge, First Class, holding that the mutation effecting in favour of female members of the family of Shri Fakira was illegal and void and they were restrained form making sale or creating third party rights in the property. The lands having been purchased by plaintiffs from female members of the family of Fakira, their sale deeds are contrary to the judgment and decree dated 16th March, 1985.
CS(OS) No.20/2009 Page 8 of 21
14. To substantiate their possession, defendants also relied on the copies of revenue record. The girdawari for the year 2006-2007 has been produced certifying the possession of Lilawat and the defendants and khatauni prepared in 1993-1994 reflecting the title of Shri Lilawat and the defendants. Shri Lilawat is alleged to have died and his share has devolved upon his sons, namely, Rajinder, Yogesh and Mukesh.
15. The defendants have challenged the sale deeds relied by the plaintiff contended that the sale could not be executed by the other co- owners in favour of plaintiffs. The plea of the defendants is that the plaintiffs are trying to dispossess the defendants under the garb of interim order dated 9th January, 2009 which has been obtained by the plaintiffs by concealing the material facts and mis-stating the facts. The defendants also gave the details of various criminal cases pending against plaintiff No.1, Shri Pawan Kumar Gupta, which are as under:
a. FIR No.637/83 dt. 17.09.83 under Section 325 IPC P.S. Kingsway Camp, Delhi.
b. FIR No.70/85 dt.26.02.85 under Section
147/148/149/506 IPC P.S. Civil Lines, Delhi.
c. FIR No.162/88 dt.16.09.88 under Section
274/429/323 IPC P.S. Timarpur, Delhi.
d. FIR No.19/2000 dt.05.02.2000 under Section
420/468/471/120-B IPC P.S. Roop Nagar, Delhi.
e. FIR No.446/06 under Section 420/120-B IPC P.S.
Timarpur, Delhi.
CS(OS) No.20/2009 Page 9 of 21
f. R.C. No.5/2006/CBI/IOU-V/New Delhi - pending
investigation.
g. FIR No.261/07 dt. 04.05.07 under Section 307/158
IPC P.S. Timarpur, Delhi.
h. FIR No.544/07 dt.11.10.07 under Section
420/406/384/506 IPC P.S. Timarpur, Delhi."
16. In the circumstances, it was contended that prima facie the plaintiffs are not in possession of the property in dispute and had never been in possession of the same and in the circumstances, the plaintiffs are not entitled for any interim injunction and the order passed by this Court be vacated in the interest of justice, equity and fair play.
17. The plaintiffs thereafter filed another application under Order XXXIX Rule 2A being (IA No.1427/2009) contending that after refusing to accept the copy of the interim order dated 9th January, 2009 and refusing the summons on 16th January, 2009, on 18th January, 2009 10/12 persons came to the land when the alleged caretaker of the plaintiffs was going to Hoover Farms. The said caretaker, therefore, rushed with Amit Nagar and other persons. The defendants, however, broke open the lock of the room and installed a board over the said property in the name of "Sidhee Vinayak Builders" and the board of the plaintiffs was thrown on road. The plaintiffs are alleged to have filed a complaint, however, the police did not take any action against the dispossession of the plaintiffs. In the circumstances, it is contended CS(OS) No.20/2009 Page 10 of 21 that the defendants had knowingly, willfully and intentionally disobeyed the orders and are liable for Contempt of Court.
18. On the basis of the sale deeds filed by the plaintiff dated 12th November, 1981 stipulating that the vendors who are the joint holders with the defendants had handed over the possession of the land in dispute to the plaintiffs an interim order dated 9th January, 2009 restraining the defendants from dispossessing the plaintiffs except without due process of law from the land measuring 28 biswas in Khasra No.711 Min. situated at Village Burari, Delhi was passed. The defendants have contended that the plaintiffs have misstated the fact that they were never in possession of the land and the plaintiffs have concealed the material information and did not disclose the correct facts.
19. The plaintiffs have countered the allegations by alleging that plaintiffs were in possession till 18th January, 2009 when the defendants had dispossessed them despite an interim order dated 9th January, 2009 passed by this Court. In order to establish that the plaintiffs were in possession of the land prior to 18th January, 2009 besides the sale deeds in their favor executed by the joint holders of the land on 12th November, 1981, the documents which have been filed by the plaintiffs are as follows. The plaintiffs have filed the copies of the CS(OS) No.20/2009 Page 11 of 21 complaints dated 29th December, 2008, 31st October, 2008 and 26th August, 2008. The copies of the complaints sent to the police per se do not establish that the plaintiffs were in possession of the land which was allegedly purchased by them from the joint holders of the defendants in November, 1981. Surprisingly though the lands were allegedly purchased in 1981 and the sale deeds in favor of plaintiff also stipulates that the possession was transferred to them, however, the application for mutation by the plaintiff No.1 was filed on 29th December, 2008. The plaintiffs have also filed the bill/cash memos of Mahinder Singh, JCB dated 7th January, 2008, 27th December, 2008 and 25th December, 2008. The payment of these bills is alleged to have been made by cheques of the same date. If the plaintiffs were in possession since 1981, then production of four cash memos of December, 2008 & January, 2009 prima facie will not reflect that the plaintiffs were in possession of the same. These bills are also issued by joint holders in the name of plaintiff and in the facts and circumstances of the present case, it cannot be inferred on the basis of the same that the plaintiffs had been in possession of the land in dispute since November, 1981 when the land is alleged to have been purchased by them.
20. The other documents filed by the plaintiffs are the complaint dated 22nd January, 2009 filed against the concerned officials for CS(OS) No.20/2009 Page 12 of 21 showing the wrong persons in the revenue record to the SDM. This document also does not establish prima facie that the plaintiffs had been in possession of the lands since 1981. If the possession of the land pursuant to sale deeds dated 12th November, 1981 was given to the plaintiffs, they must have exercised their rights in respect of their possession. If plaintiffs had been in possession they would have cultivated the land and cultivation of the land by the plaintiffs would have been reflected in the revenue record. The plaintiffs have not produced any khasra Girdawari to show that after taking possession of the land under the sale deeds dated 12th November, 1981 they exercised any right in respect of their alleged cultivatory possession.
21. Though the order dated 9th December, 1981 mutating the property in the name of plaintiff is based on the sale deeds and it has been recorded on the basis of the sale deed that the possession was given to the plaintiff, however, the said order dated 9th December, 1981 was set aside by the order dated 16th April, 1992 by Sh.R.K.Verma, Additional Collector, Delhi. An appeal was filed by the plaintiffs against the order dated 16th April, 1992 of the Additional Collector, however, the plaintiffs have not shown any pleadings where it is contended by them that they had been in possession of the said land. The appeal filed by the plaintiff was also dismissed by the Financial Commissioner by order dated 7th July, 1992 and the writ petitions were filed against the CS(OS) No.20/2009 Page 13 of 21 dismissal of the appeals of the plaintiffs, however, nothing has been produced by the plaintiff to show that they had alleged in the pleadings that they have been exercising their right on the land being in its possession. Though the photocopies of the khataunis have been produced by the plaintiff, however, these khataunis also do not reflect that the land was sold to the plaintiffs and they are in possession of the same. The copies of the khataunis which have been produced by the plaintiffs rather disclose that the defendants are the joint holders with the vendors of the plaintiffs.
22. In contradistinction to the documents produced by the plaintiffs the defendants have produced the khasra gidawari of the year 1993, 1995, 1997, 1998, 1999, 2001 and 2002 to show that the lands were cultivated by the defendants. The defendants have also produced khasra girdawari for the year 2007-2008. All these khasra girdawaris reflect that the defendants had been in cultivator possession of the lands which were allegedly sold by the joint land holders to the plaintiffs in 1981 and allegedly the possession was also given to them. If the possession was given to the plaintiffs then their names are not reflected in the khasra girdawaris. It has not been explained by the plaintiffs as to why the khasra girdawaris are not in their name if the land was cultivated by them. The learned counsel for the plaintiffs CS(OS) No.20/2009 Page 14 of 21 rather contended that khasra girdawaris will reflect nothing in the facts and circumstances. According to him the cultivator possession of the land or who has cultivated the land will not be reflected by the khasra girdawaris.
23. The plea of the learned counsel for the plaintiffs that khasra girdawari since 1992-1993 produced by the defendants will not reflect their cultivatory possession, is contrary to the Land Revenue Rules. Rule 63 of Delhi Land Revenue Rules, 1962 categorically stipulates that the name of the tenure holder or sub tenure holders shall be shown in Column 4 & 5 which will be made on the basis of the revenue record. Rule 63 of the Delhi Land Revenue Rules, 1962 has been extracted as under:-
"63. Name of the tenure holder and or sub tenure holder. Columns 4 and 5 - 1) Entries in columns 4 and 5 shall be made from the Khatauni of the current year. Patwaries are prohibited from making any changes except on the basis of an order from a competent authority and recorded already in the current years Khatauni. Such a change shall be recorded in red ink in the relevant column and the relevant order quoted in columns 7, 8, 9 and 10 of the quadrennum Khatauni shall be reproduced in the remarks column of the khasra.
Explanation- The term tenure holder or sub-tenure holder does not include a purchaser for fruits or flowers, who is to be shown only in the column of remarks with brief details of his lease.CS(OS) No.20/2009 Page 15 of 21
2) if there is more than one tenure holder of sub- tenure holder included in a Khatauni-khata the names of all the tenure holders and sub-tenure holders shall be entered against the first plot of the khata but against the subsequent plots should be entered only the first name followed by a reference to the first plot of the khata.
3) if a person other than the one recorded in columns 4 or 5 is found to be in actual occupation of the plot at the time of the partal, his name shall be recorded in red ink in the remarks column as baqabza so and so.
Note- All entries in such cases are intended to show the fact of possession; these shall under no circumstances be held as recognition of any illegal transmission.
4) if a tenure holder or sub tenure holder recorded in column 4 or 5, cases to be in possession, for any reason and no one else is found to be in possession, the entry in the remarks column shall show the reason for the plot remaining uncultivated by entering therein, the fact of decease of the tenure holder or sub-tenure holder or surrender or abandonment or his becoming untraceable etc., as the case may be. Even in these cases the entry in column 18 of the Khasra shall show the class or sub-class of uncultivated land."
24. Rule 63 categorically stipulates that all entries in such cases are intended to show the fact of possession, however, this will not be held as recognition of any illegal transmission. In the circumstances, the khasra girdawari for 1992 filed by the defendants show unequivocally that the land has been cultivated by them during different years and they were in possession of the same. Though the name of Lilawat, another joint holder is also shown in the khasra girdawari, however, that does not negate the cultivatory possession of the defendants nor it CS(OS) No.20/2009 Page 16 of 21 shows that the plaintiffs had been cultivating the land after allegedly taking its possession in 1981.
25. The defendants have also filed the photographs of the land in dispute which show that the land is enclosed on three sides and a small room which can be locked, is also constructed thereon. The photographs produced by the defendants show the agricultural implements and the tractors and trollies parked there. These photographs are allegedly taken on 19th January, 2009. Since these photographs were taken on 19th January, 2009, they per se do not establish the possession of the defendants prior to 18th January, 2009, however, they do reflect that the room on the disputed land was not a newly constructed room. The plaintiffs have also tried to allege that the room was constructed by him, however, nothing has been produced by the plaintiffs to show as to when the room was got constructed by the plaintiffs nor anything has been produced by them to show the building material and other fixtures and fittings were purchased by the plaintiffs for the alleged construction of the room by the plaintiffs.
26. The defendants have also produced the bills in the name of defendant No.1 Sh.Mam Chand issued by North Delhi Power Limited. The bills are for the periods up till February, 2008, October, 2008; CS(OS) No.20/2009 Page 17 of 21 December, 2008; December, 2007 and August, 2007. If the plaintiffs were in possession of the land and the room was constructed on it by them, then how the defendants got the electricity meter installed in the said khasra Number in their name, has not been explained by the plaintiffs nor the plaintiffs can explain as to how the plaintiffs in these circumstances were dispossessed on 18th January, 2009. This cannot be believed that plaintiffs were allegedly in possession of the land in khasra No.711, land in dispute and the defendants got the electricity connection and they kept on paying the electricity bill and dispossessed the plaintiff only after the plaintiff obtained an ex-parte restraint order against them not to dispossess them. The plaintiffs also concealed the material fact that the disputed property has a electric connection in the name of the defendant no.1. Concealment of material fact by the plaintiffs is to be construed against them and they will not be entitled for any equitable relief in their favor.
27. The defendants have also produced a pass book of consolidation and an extended abadi certificate dated 30th September, 1992 which was obtained by them on their specific request for electricity connection. This extended abadi certificate dated 30th September, 1992 which was obtained by the defendants for the electricity connection which electricity connection was granted to them, belies the allegations CS(OS) No.20/2009 Page 18 of 21 of the plaintiffs that they had been in possession of the land in dispute till 18th January, 2009 when they were allegedly dispossessed.
28. The plaintiffs have also produced the receipts of Baba Cable network in favor of defendant No.1 which reflect that the defendant No.1 has a cable connection at the lands in dispute. The receipts are for the period 15th February, 2008 onwards. The receipt per se may not establish the possession of the defendants but taking these receipts along with the electricity bill and the extended abadi circular obtained by the defendants for obtaining the electricity connection, prima facie would show that the defendants were in possession of the land and not the plaintiffs. The plaintiffs concealed the material facts from this Court and also made mis-statements.
29. The defendants have also produced the copies of the statements of Sh.Sanjiv and Sh.Jai Prakash recorded by the police on the complaint filed by the plaintiffs for their alleged dispossession. However, these statements recorded by the police may not be material and cannot be relied on in the present facts and circumstances. CS(OS) No.20/2009 Page 19 of 21
30. The learned counsel for the plaintiffs have also tried to emphasis that the summons issued by this Court were refused by the defendants on 16th January, 2009 and thereafter the plaintiffs were dispossessed on 18th January, 2009. The counsel for the defendants has pointed out that the report of refusal is witnessed by their own man and the refusal is not witnessed by any independent witness. It is also contended by the defendants that on 16th January, 2009 none of the defendants were at the property in dispute as they had gone to attend certain ceremonies of the relatives and the report has been procured in order to create a false plea of refusal and alleged dispossession.
31. On the basis of the alleged report of refusal also it cannot be held that the plaintiffs were in possession of the property in dispute. The addresses of the defendants as given in the plaint at which the summons were issued are only as resident of `Village Burari, Delhi‟. An employee Sh.Amit is alleged to have gone with the process server who had tendered the summons and which was refused by the defendants. However, it has not been even stipulated in the report that the process server or even Sh.Amit Nagar, employee of the plaintiff even tried to ask any of the persons in the adjoining houses or person at the spot to witness the alleged refusal. This is not the case of the plaintiffs that the CS(OS) No.20/2009 Page 20 of 21 defendants are residing in a deserted place where no other person would have been available to witness the refusal by the defendants.
32. In the totality of the facts and circumstances, the inevitable prima facie inference is that the plaintiffs had not been in possession of the land in dispute in measuring 28 biswas (total land 1400 sq.yards) in Khasra No.711 Min. situated at village Burari, Delhi-110084 at the time of filing the present suit and they concealed the material information and mis-stated the facts. Consequently, it cannot be held that the plaintiffs were dispossessed on 18th January, 2009 as has been alleged by them. Consequently, the order dated 9th January, 2009 is vacated and IA No.120/2009 of the plaintiff under Order 39 Rules 1 & 2 of the Code of Civil Procedure is dismissed and IA No.1118/2009 of the defendants under Order XXXIX Rule 4 is allowed. Since the defendants have not dispossessed the plaintiffs, consequently, the application of the plaintiffs under Order 39 Rule 2A being IA No.1427/2009 is also dismissed. Considering the facts and circumstances the plaintiffs are also liable to pay costs of Rs.10,000/- to the defendants.
May 18, 2009 ANIL KUMAR, J.
„Dev‟
CS(OS) No.20/2009 Page 21 of 21