P.K. Gupta And Another vs Sh. Mam Chand And Others
2009 Latest Caselaw 2098 Del

*              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

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

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

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

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

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.

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

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.

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.

               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

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

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

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

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

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.

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

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;

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

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.

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

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‟