Bimla vs Anil Kumar Arora
2014 Latest Caselaw 3729 Del

8

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CM(M) 361/2012 & CM Nos. 5495/2012 (stay), 6819/2012 (stay)

%                                                            14th August, 2014

BIMLA                                                ......Petitioner
                          Through:       Mr. L.B. Rai, Advocate


                          VERSUS

ANIL KUMAR ARORA                                    ...... Respondent

                          Through:       Mr. Rajendra Dutt, Advocate

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1. This petition is filed under Article 227 of the Constitution of India,

however, really the same had to be filed under Section 115 of the Code of

Civil Procedure, 1908 (CPC). Since in law heading of the petition cannot

make a difference, I am hence treating this petition filed under Article 227 of

the Constitution of India as one under Section 115 CPC.

2. This petition impugns the judgment of the trial court dated 21.12.2011

by which the suit filed by the petitioner/plaintiff for recovery of possession

under Section 6 of the Specific Relief Act, 1963 has been dismissed. Along

with the suit the petitioner/plaintiff had also claimed the reliefs of

injunctions and damages along with the relief of possession, which reliefs

have been rejected on the ground that such reliefs cannot be joined with the

relief claimed for possession under Section 6 of the Specific Relief Act.

3. The facts of the case are that petitioner/plaintiff filed the subject suit

for recovery of possession under Section 6 of the Specific Relief Act with

respect to an area of 1 bigha and 1 biswas of land (1058 square yards)

situated in Khasra no. 1, Village Saboli, Nand Nagari, Delhi. The

petitioner/plaintiff pleaded that she purchased the suit property by means of

usual documentation being an agreement to sell, general power of attorney

etc; all dated 22.9.1980. The possession of the suit property was also

handed over to the petitioner/plaintiff at the time of execution of the said

documents. The suit property was purchased from Smt. Ramwati, the widow

of Sh. Inder. Three brothers, Sh. Inder, Sh. Risal and Sh. Puran jointly

owned 3 bighas and 3 biswas of the land. On the death of Sh. Inder, a

family settlement took place between his widow Smt. Ramwati

(predecessor-in-interest of the petitioner/plaintiff) and the other two brothers

of Sh. Inder, namely, Sh. Risal and Sh. Puran whereby the property was

equally divided within the three co-owners. Smt. Ramwati under the family

settlement became the owner of 1 bigha and 1 biswa out of the 3 bighas and

3 biswas of the land situated in Khasra no. 1, Village Saboli, Nand Nagari,

Delhi.

4. The case of the petitioner/plaintiff was that the respondent/defendant

wrongfully and illegally took over the possession of the suit property on

1.6.2003. Possession was taken during the pendency of the earlier legal

proceedings being a suit for injunction filed by the respondent

herein/defendant. In that suit the respondent/defendant claimed to have

purchased the suit property from one Sh. Ram Karan, and the

respondent/defendant in that suit was successful in securing an interim order

dated 30.10.2002 restraining the present petitioner/plaintiff from taking over

the possession of the suit property, although, in reality the petitioner/plaintiff

was in actual possession of the suit property and had constructed a

superstructure of two rooms, kitchen, latrine, bathroom over the suit

property. The injunction which was granted in favour of the

respondent/defendant in his suit for injunction was vacated on an appeal

being filed by the petitioner/plaintiff herein vide order dated 27.02.2003.

The present respondent/defendant had filed a revision petition against the

said order dated 27.02.2003 in the High Court of Delhi being civil revision

no. 627/2003 and in which the High Court directed the parties to maintain

status quo. Subsequently it transpires, and which position is not disputed

before me by the respondent/defendant, that, the suit for injunction filed by

the respondent/defendant was not pursued and was therefore disposed of

with the liberty to the respondent/defendant to raise all the pleas as raised in

the revision petition in the suit filed by the respondent therein. The

petitioner/plaintiff hence pleaded that she was illegally dispossessed by the

respondent/defendant on 1.6.2003, and that the respondent/defendant has

thereafter raised certain unauthorized construction over a portion in the suit

property as shown in red colour in the site plan. Accordingly, the reliefs of

possession, injunction and damages were claimed in the subject suit.

5. The respondent/defendant contested the suit and pleaded that

petitioner/plaintiff was neither the owner and nor in possession of the suit

property inasmuch as the suit property is owned and possessed by the

respondent/defendant from 23.6.1999 by virtue of the documentation of this

date being the agreement to sell, power of attorney etc. The

respondent/defendant stated that he had purchased the suit property from one

Sh. Ram Karan.

6. Trial court framed the following issues:

"1. Whether the suit is bad for misjoinder and non joinder of parties?

OPD

2. Whether the suit is barred under Section 6 of the Specific Relief Act? OPD

3. Whether the suit is properly valued for the purpose of Court fees & for adjudication? OPD

4. Whether the suit is liable to be stayed under Section 10 of CPC?

OPD

5. Whether the plaintiff is entitled for a decree of possession? OPP

6. Whether the plaintiff is entitled for a decree of recovery of Rs.10,000/- alongwith mense profit @ Rs.5000/- per month, if so, from which date and for what period? OPP

7. Whether the plaintiff is entitled for a decree of mandatory injunction? OPP

8. Whether the plaintiff is entitled for a decree of permanent injunction? OPP

9. Whether the plaintiff is entitled for any interest for the damages, if so upto what amount and for what period? OPP

10. Relief."

7. So far as the issues pertaining to the reliefs of injunctions and

damages are concerned, the trial court has rightly held the same against the

petitioner/plaintiff because such reliefs and causes of action cannot be joined

with summary proceedings suit under Section 6 of the Specific Reliefs Act.

I agree with the findings of the trial court on these relevant issues and

accordingly there can be no grievance of the petitioner/plaintiff with respect

to declining of reliefs of injunctions and damages.

8. Actually, the real and main issue between the parties is and which has

been urged before this Court viz with respect to the claim of possession.

9. In order to prove the aspect of possession, petitioner/plaintiff stepped

into the witness box and proved the documents by which the suit property

was purchased by her on 22.9.1980. These documents are the general power

of attorney Ex. PW-1/1, agreement to sell Ex. PW-1/2 and the payment of

money receipt Ex. PW-1/3. Petitioner/plaintiff also deposed that she was

handed over possession of the suit property in 1980 itself when these

documents were executed and since then she remained in continuous

possession till she was illegally dispossessed by the respondent/defendant on

1.6.2003. Petitioner/plaintiff also in the trial court filed the order passed by

the SDM under the Section 145 Cr.P.C. proceedings against Sh. Risal Singh

and his sons. The Section 145 Cr.P.C. proceedings were decided in favour

of the petitioner/plaintiff holding that she was in possession of the suit

property and restraining Sh. Risal Singh and his sons from interference in

the said property. This order of Sh. R.P. Meena, SDM, Seema Puri, Delhi is

dated 23.4.1999 and it is exhibited as Ex. PW-1/4. The revision filed against

the order dated 23.4.1999 of the SDM by the respondents under the said

Section 145 Cr. P.C. proceedings was dismissed by the Court of Sh. Chandra

Gupta, Additional Sessions Judge, Karkardooma by the order dated 2.9.2003

and which has been proved and exhibited as Ex. PW-1/9. Petitioner/plaintiff

had also filed and proved on record her ration card which showed her

residence at village Saboli. This ration card is proved and exhibited as Ex.

PW-1/5.

10. As against the aforesaid evidence led on behalf of the

petitioner/plaintiff, the respondent/defendant led evidence only with respect

to the documents of the alleged purchase of the suit property being the

agreement to sell, power of attorney etc; all dated 23.6.1996; and which have

been proved and exhibited as Ex. DW-1/1 to DW-1/3. These are documents

which were executed by one Sh. Ram Karan in favour of the

respondent/defendant. Though on record of the trial court there are

documents which are filed and executed on 6.11.1996, by which Sh. Ram

Karan alleged to have purchased rights in the suit property from Sh.

Malkhan Singh son of Sh. Inder Singh, but, these documents are not proved

and exhibited. These documents thus have not been relied upon by the

respondent/defendant before the trial court and there is no reference to these

documents in the impugned judgment of the trial court.

11. As per the impugned judgment, the trial court has rejected the ration

card filed by the petitioner/plaintiff on the ground that the same only

contains the address of village Saboli without any reference to the suit

property. The orders passed by the SDM, as also the Court of the Additional

Sessions Judge, have been rejected by the trial court on the ground that there

is no adequate discussion in the SDM's order as to the aspect of possession

with the petitioner/plaintiff and the fact that the respondent/defendant was

not a party to those proceedings.

12. In my opinion, the judgment of the trial court is clearly illegal and the

trial court has acted most illegally and perversely in exercise of its

jurisdiction and arrived at wholly illegal findings and conclusions. The

judgment is hence liable to be set aside for the reasons given hereinafter.

13. In my opinion, though the ration card may not contain any specific

address of a property, the trial court was unjustified in rejecting the same

because it is well known that in the rural areas of Delhi for a very long time

there were no municipal numbers of properties. This aspect is to be taken

along with the fact that at least the petitioner/plaintiff had a ration card

showing her residence in village Saboli where the suit property is located,

and therefore, this evidence being the ration card could not be rejected

because the respondent/defendant per contra and admittedly did not file any

ration card showing his residence in the suit property in village Saboli.

Also, the trial court was not justified in relying upon the memo of parties

filed in an earlier suit for permanent injunction by the petitioner/plaintiff

being suit no.40/04/00, titled as Smt. Bimla Devi Vs. Smt. Ramwati and

Ors. in the court of Sh. Joginder Prakash Nahar, Civil Judge, Karkardooma,

Shahdara, Delhi, which showed petitioner/plaintiff's residence at a different

place inasmuch as the aspect of possession is an aspect of independent

residence and merely because residence of the petitioner/plaintiff was

subsequently shifted to the suit plot, cannot mean that a memo of parties

filed in an earlier suit for injunction should be held against the

petitioner/plaintiff. In fact the memo of parties pertain to the suit for

permanent injunction filed by the petitioner/plaintiff against Smt. Ramwati,

her son Sh. Malkhan Singh and Ors. which has been decided by the

judgment dated 25.8.2004 which is proved and exhibited as Ex. PW-1/7 and

as per this judgment of a civil court which is in favour of the

petitioner/plaintiff and against Smt. Ramwati and others, Smt. Ramwati and

others were restrained from dispossessing the petitioner/plaintiff from the

suit property i.e the petitioner/plaintiff has been held to be in possession of

the suit property. The trial court therefore could not conveniently only look

at the memo of parties of the suit but avoid the bindingness of the judgment

Ex. PW-1/7 and also ignore the findings arrived at in the same and the relief

granted thereby to the petitioner/plaintiff of injuncting Smt. Ramwati; Sh.

Malkhan Singh and others from dispossessing the petitioner/plaintiff from

the suit property. Since the predecessor-in-interest of the

respondent/defendant is allegedly Sh. Malkhan Singh, this judgment

operates as res judicata against respondent/defendant both qua possession

and title.

14. It is also relevant to note that possession follows title. Once,

petitioner/plaintiff is shown to have purchased rights in the suit property

from Smt. Ramwati and taken possession of the suit property under the

documentation of 1980, the respondent/defendant should have been held to

have illegally dispossessed the petitioner/plaintiff from the suit property.

15. The trial court was not justified in rejecting the orders under the

Section 145 Cr.P.C. proceedings as these orders were relevant in terms of

Section 13 of the Evidence Act, 1872 and the judgments of the Supreme

Court in the cases of Sital Das Vs. Sant Ram and Ors, AIR 1954 SC 606

and Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Ors, AIR

1954 SC 379. In fact the orders under the Section 145 Cr.P.C. proceedings

will bind the respondent/defendant as the predecessor-in-interest of the

respondent/defendant was a party to those proceedings.

16. It is also required to be noted that whereas petitioner/plaintiff filed

various documents being the orders under the Section 145 Cr.P.C.

proceedings, civil suit for injunction against Smt. Ramwati and others as

also the ration card, the respondent/defendant filed no documents to

establish his possession of the suit property except the alleged title

documents of purchase dated 23.6.1999. These documents dated 23.6.1999

Ex. DW-1/1 to Exh. DW-1/3 cannot merely because of their execution be

proof of the fact that the respondent/defendant received possession under the

same. It is relevant to note that these documents of 1999 were executed in

favour of the respondent/defendant by one Sh. Ram Karan and who claimed

to have purchased the suit property from Sh. Malkhan Singh son of Sh. Inder

and Smt. Ramwati and which could not be because the petitioner/plaintiff

had already earlier purchased rights in the suit property from Smt. Ramwati

more than 19 years back in 1980 and had taken possession of the suit

property. It is clear that actually respondent/defendant has been defrauded by

Sh. Malkhan Singh S/o Smt. Ramwati and Sh. Inder Singh and against

whom not only proceedings were decided under Section 145 Cr.P.C. but

they were restrained as per the judgment dated 25.8.2004 Ex. PW-1/7 filed

by petitioner/plaintiff against Smt. Ramwati and others or the

defendant/respondent is in collusion with Smt. Ramwati & Sh. Malkhan

Singh. I have already stated above that the alleged documents which were

executed by Sh. Malkhan Singh in favour of Sh. Ram Karan have not been

proved and exhibited and I am referring to these documents executed by Sh.

Malkhan Singh dated 6.11.1996 only as a matter of abundant caution to

show that these documents of 1996 could not have created title and

transferred possession of the suit property to Smt. Ramwati in the year 1996

when by the documents Ex. PW-1 to PW-1/3 dated 22.9.1980, Smt.

Ramwati sold and transferred the rights in the suit property to the

petitioner/plaintiff and to whom the possession of the suit property was also

simultaneously given.

17. In view of the above, this petition is allowed. Respondent/defendant

is directed to hand over possession of the suit property of the area of 1 bigha

and 1 biswa out of Khasra no. 1, Village Saboli, Nand Nagari, Delhi in

possession of respondent/defendant to the petitioner/plaintiff and which suit

property is more appropriately described in red colour in the site plain Ex.

PW-1/6. Parties are left to bear their own costs.

AUGUST 14, 2014                                     VALMIKI J. MEHTA, J
godara