Delhi High Court
Mahesh Chandra Agarwal vs Rameshwar And Ors. on 24 August, 2009
Author: S.Ravindra Bhat
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON: 10.08.2009
PRONOUNCED ON: 24.08.2009
+ CS (OS) 825/2005
MAHESH CHANDRA AGARWAL ..... Plaintiff
Through: Mr. A.K. Singla, Sr. Advocate
with Mr. Karan Jain, Advocate.
versus
RAMESHWAR AND ORS. ..... Defendants
Through: None.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
1.
Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes
Hon'ble Mr. Justice S.Ravindra Bhat:
%
1. The plaintiff in this Suit seeks declaration that he is a joint owner and in
settled possession of a plot measuring 1184.4 sq. yds.; he also seeks
cancellation of documents dated 18.03.1970, favoring the second defendant
and a General Power of Attorney dated 24.03.1988 stating that they do not
pertain to his property. An injunction consequential to the declaration, to
restrain the defendants from interfering with the plaintiff's possession is also
sought.
2. The plaintiff contends that the suit property measures 1184.4 sq. yards
CS (OS) 825/2005 Page 1
and is a part of a plot admeasuring 1814.4 sq. yds, situated in Khasra
No.263/134 and 264/134, Village Zamrudpur, New Delhi. The plaintiff relies
upon a coloured map annexed to the suit. It is alleged that some portions of the
said plot are encroachments to the extent of 630 sq. yards, which are shown in
black colour. It is submitted that the suit property is not a regular sized one,
and is enclosed by several plots of varying sizes. According to the plaintiff, the
site is enclosed by boundary wall with a few grown trees with hutments. The
plaintiff claims to be the joint owner with his other family members and who
are all in settled possession of the land. The plaintiff traces ownership of the
plot, by stating that originally the plot measured 7 bighas, reflected in khewat
jamabandhi No.49-48 and khatoni No.117 of village Zamrudpur. The plaintiff
says that his ancestors were in occupation and cultivation of the land. The last
mutation reflects the name of legal heirs of Smt. Laxmi Devi. It is submitted
that the plaintiff is her eldest son and his two married sisters have authorized
him to file the Suit.
3. The plaintiff alleges that in the evening of 23.5.2005, some persons, who
later on transpired to be fourth and sixth defendants threatened the guard at
the location (of the suit property) seeking entry into the plot claiming
themselves to be the owners of the property. The plaintiff states that when his
son reached the site none of the persons or the said individuals could be
traced. It is alleged that the said defendants again went to the plot and stated
that they were its owners, relying upon the sale deed dated 18.3.1970 and sale
agreement, power of attorney, Will etc. dated 24.3.1988. It is submitted that
CS (OS) 825/2005 Page 2
copies of such documents were furnished to the plaintiff.
4. The plaintiff alleges that neither he nor anyone connected with the land
or in occupation of it or having any manner of interest in it had executed the
said documents relied on by the defendants; according to him, the Suit
property is not described as 133/3 of Khasra No. 21 and does not measure 600
sq. yds., as described in the documents furnished by the defendants. The
plaintiff alleges that the so-called documents dated 18.3.1970 do not reveal the
dimension of the plot. It is submitted that the defendants' action amount to
threat of interference with the plaintiff's ownership and possession of the land;
consequently, the plaintiff seeks declaration and consequential relief of
injunction, as also cancellation of the said documents.
5. The summons in the Suit were issued on 10.06.2005, returnable on
23.8.2005. The Court also directed the parties to maintain status-quo in
respect of possession of the suit property. The defendants could not be served
through the normal process; accordingly, the Court permitted substituted
service through publication in the newspaper "Punjab Kesari" on 8.3.2006 as
well as in English Newspaper "The Tribune" on 20.3.2006. The returnable date
indicated in the publication was 3.4.2006. The defendants did not choose to
appear in the proceedings and were accordingly set down ex parte by the Court
on 7.7.2006. The plaintiff thereafter proceeded to lead evidence in support of
the claim, in the suit.
6. The plaintiff's son Shri Lalit Aggarwal (also a legal representative, since
the original plaintiff expired by then) deposed by way of an affidavit dated
CS (OS) 825/2005 Page 3
1.3.2007. He tendered the affidavit in evidence before the Court on 8.5.2008;
the affidavit was marked as Ex. PW-1/A. The plaintiff also relied upon
documents, exhibited as Ex. PW-1/2 site plan filed along with the Suit; Ex.
PW-1/3 photographs; Ex. PW-1/4 Form No.11, showing Khasra Girdawari
extracts, and Ex. PW-1/5, report of Patwari recording demarcation of the suit
property. It is contended that all these documents reveal that the plaintiff is
joint owner and in settled position of the suit property. The plaintiff alleges that
the defendants do not have any right, title or interest and cannot claim
possession or any manner of rights in respect of the suit property, by virtue of
the sale deed dated 18.3.1970 and agreement for sell, power of attorney, Will
etc. dated 24.3.1988. Photocopies of those documents have been produced as
Annexure C to E. The witness states that the plaintiff's property is not
No.133/3, mentioned in the documents relied upon by the defendants.
7. The first of the two most important documents relied upon by the
plaintiff in this case is Ex. PW-1/4, extracts of Khasra Girdawari, dated
2.6.2005. It records that the owner of khasra No. 263/134 (area being 0.3
bigha) and khasra No.264/164 (area being 1.13 bigha) is Narayan Singh, s/o
Kallu; cultivator or occupant with rent is shown to be Puran, through Ramesh
Chandra, Mahesh Chandra, Pisran and Smt. Laxmi Devi, Baba Bhartendu and
Mustriya; in respect of Khasra No.264/134, it is Puran through Ramesh
Chandra, Mahesh Chandra, Pisran and Smt. Laxmi Devi, half part, Ajay
Narayan and Vinay.
8. The second vital document is Ex. PW-1/5 a demarcation report dated
CS (OS) 825/2005 Page 4
17.8.1996. The demarcation refers to case No. D-59/96 in the village
Zamrudpur and the original plaintiff Mahesh Chand, s/o Shri Bhartendu is
recorded as a complainant who had claimed measurement. Apparently, there
was a dispute between the plaintiff and one Vijay Gupta. Notice was also
issued to owners or occupiers of the adjacent property including the Secretary
of the Kailash Apartments Owners Association. According to the demarcation
exercise, about 1-12½ biswa of khasra No. 263/134/3 was possessed by the
plaintiff; the report also discloses that some 3 biswa was occupied, similarly, in
another nearby Khasra Number.
9. The plaintiff seeks a declaration that he is owner of the suit property,
which is in two parts. It is also stated that the suit land forms part of Kailash
Colony, New Delhi and bounded by Kailash Apartments Group Housing Society
in the West and North by Ajit Arcade, another Group Housing Colony. The
second relief claimed is cancellation of the documents, which the plaintiffs
state, as sale deed dated 18.3.1970 by the first defendant in favour of the
second defendant and other documents dated 24.3.1988 such as General
Power of Attorney, Agreement to Sell etc. Although the relief is claimed against
the latter documents, the plaintiff has not produced any authentic or certified
copy of the same. No attempt was made on his behalf all this while though the
Suit has been pending on the file of this Court for four years. What has been
produced are photocopies which the plaintiff vouches to be true copies.
10. Having regard to the nature of evidence, i.e., the lack of any authentic
documents, which claim to confer property interest in favour of the plaintiff,
CS (OS) 825/2005 Page 5
the Court is of the opinion that it would be too hazardous to examine their
genuineness or correctness and pronounce upon it. The copies placed on the
record clearly reveal that some of the documents are registered. In these
circumstances, the Court deems it imprudent to consider granting the second
relief of cancellation.
11. So far as the declaratory relief sought by the plaintiff is concerned, the
suit is premised upon two documents, i.e., the demarcation report (Ex.PW-1/5)
and the extract of Khasra Girdawari issued in June, 2005. The latter document
records that one "Mahesh Chandra s/o Shri Bhartendu is cultivator of the
land". The photographs annexed along with the Suit and even the Khasra
Girdawari clearly state that the site is an unauthorized colony. The plaintiff
claims to be in "settled possession" of the lands and further states that they are
ancestral. If that were the case, having regard to the dimension of the plot
i.e.1184.4 sq. yds., surely the plaintiff would have been able to produce
something more. It is well known that revenue records are not title documents
and that courts do not rely upon them while deciding issues of ownership.
Often revenue laws contain provisions that enjoin presumptive value of the
entry made in the record; however, such presumption is only that such entries
are made and the extracts in such entries having correctly shown in the
certified copy issued for the purpose. They are never seen as vouchsafing
veracity of the source reflecting the true position. It has thus been held in State
of Bihar v. Radha Krishna Singh 1983 (3) SCC 118 that in the absence of the
revenue records disclosing how and what manner of enquiry was conducted
CS (OS) 825/2005 Page 6
before the entry was made, the Court will not accord it evidentiary value. The
Court also concluded that such document is never to be treated as evidence of
title. This view, i.e., the revenue records are not documents of title has also
been affirmed in other decisions [refer Corporation of City of Bangalore v. M.
Papaiah 1989 (3) SCC 612; Guru Amarjit Singh v. Rattan Chand 1993 (4) SCC
349; Nagar Palika v. Jagat Singh 1995 (3) SCC 426)]. There is one more
dimension to the dispute. Apart from the two revenue documents, there is
singular lack of evidence of any title to the property on the part of the plaintiff.
Significantly, the plaintiff's consequential relief for cancellation is really in the
alternative, i.e., in the event the Court finds that the defendants have some
interest in the property. The main consequential relief is injunction against the
defendants. Even for this relief, the mere reliance upon the demarcation report
of the year 1996 and revenue entries, are, in the opinion of the Court are
insufficient to establish entitlement. Here, the Suit is primarily for declaration
with a consequential relief of injunction. The plaintiff's Suit is premised on
ownership of the land and possession. The plaintiff has not proved ownership.
The meagre evidence in support of the possession is, as observed, an old
demarcation report and the khasra girdawari for 2005, which shows that
unauthorized colonies exist. The most contemporaneous document does not
show the plaintiff to be occupant, but only as a registered cultivator.
12. The plaintiff has not shown any other evidence such as property tax
receipts or contemporary documents evidencing possession to establish the
claim for injunction, based on possession. For these reasons, the relief of
CS (OS) 825/2005 Page 7
injunction - even if it appears to be construed as an independent one, cannot
be granted.
13. The Suit has to, for the above reasons, fail; it is accordingly dismissed
without any order as to costs.
14. All the pending applications are also disposed of.
S. RAVINDRA BHAT
(JUDGE)
AUGUST 24, 2009
/vd/
CS (OS) 825/2005 Page 8
