Smt. Pramilla Devi vs Sh. Brahm Singh
2015 Latest Caselaw 1301 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of Judgment: 12.02.2015

                  CS(OS) 1306/2009
SMT. PRAMILLA DEVI                          ......Plaintiff
             Through: Ms.Anjna Gosain and Mr. Pradeep
                      Desodya, Advs.

                       Versus


SH. BRAHM SINGH                                           .......Defendant
              Through:             Mr. A.K. Sen, Adv.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (oral)

1     Present suit has been filed by the plaintiff Pramilla Devi through

her attorney Manoj Kumar seeking permanent injunction against the

defendant Brahm Singh restraining him/his representatives/his agents in

interfering in the construction of the boundary at the periphery of the

suit property and from in any manner interfering in the peaceful use and

occupation of the suit property.

2     The case as set up by the plaintiff is that she is a widow aged 80

years. She is a permanent resident of Village and Post Nadiawan,

CS (OS) No.1306/2009                                    Page 1 of 12
 District Lakhisarai, Bihar and occasionally visits Delhi. This property

measuring 1200 square yards was bought by her in the year 1999

through a registered sale deed dated 26.07.1999 from Beer Singh, Rame,

Birbal and Jagmal Singh, all sons of Munshi of village Madanpur

Khadar, Tehsil Mehrauli, Delhi. She has been in continuous and

uninterrupted possession of the land since that date. The land has also

been mutated in the revenue records. This land comprised of 1200

square yards in Khasra No. 731, village Madanpur Khadar. The land has

also been mutated in the name of the plaintiff. Khatoni of the said land

has been filed. The defendant is a resident of village Madanpur Khadar.

He is a rogue element of the village and has been involved in various

frivolous litigations. Manoj Kumar had been engaged as a caretaker of

the plaintiff. The suit property was bound by a boundary wall which in

due course, due to dilapidated condition, had fallen down. The plaintiff

visited the suit property in April, 2009 where she noticed bricks having

fallen from the boundary; she asked her caretaker Manoj Kumar to

repair the boundary wall. When Manoj Kumar went to the said land for

the purpose of re-raising the boundary wall, the defendant and his

associates prevented him from doing so. He stated that he had purchased
CS (OS) No.1306/2009                                Page 2 of 12
 this land and it belongs to him. Oral complaint was made to the police.

The plaintiff has learnt that the defendant had filed a case before the

District Judge seeking specific performance of the contract relating to

the suit property. On 22.07.2002, this relief had been declined. RFA

538/2002 was filed by the defendant. It is yet pending. The defendant

has no right in the suit property and in fact no such averment has also

been made in RFA 538/2002; he does not have title to the suit property

and he was also never in possession of the said property. He is trying to

grab the land of the plaintiff.

3     The plaintiff had instructed her attorney Manoj Kumar to take

preventive steps. Present suit has also been filed as no action has been

taken on her police complaint.

4     The defendant filed his written statement. It was stated that the

suit is not maintainable. The plaintiff has never been in possession of the

said land and as such, the question of interference in the possession of

the plaintiff does not arise. On merits, it was stated that although the sale

deed dated 26.07.1999 reflects that the property stands mutated in the

name of the plaintiff yet it is denied that the plaintiff was in possession

of the suit property. It is stated that the defendant belongs to a
CS (OS) No.1306/2009                                   Page 3 of 12
 respectable family. He is not involved in frivolous litigations as has been

stated by the plaintiff. He has been in continuous possession, and is

owner of the suit land since 1999. It is denied that Manoj Kumar was the

caretaker of the plaintiff and he had gone to the site to repair the

boundary wall of the plaintiff. The defendant had entered into an

agreement with the bhumidar Gulshan Kumar Gulati who had purchased

this land from Ravinder Singh and others sons of Nathu Singh. Ravinder

Singh and others were the bhumidars of 3 bighas 7 biswas in khasra No.

731 in village Madanpur Khadar. The plaintiff has in fact never been in

possession of the suit property. Suit is liable to be dismissed.

5     Replication was filed reiterating the averments made in the plaint

and denying the averments made in the written statement.

6     From the pleadings of the parties, the following issues were

framed on 17.09.2010:-

1.

Whether the plaintiff is entitled to grant of injunction in respect of the suit property admeasuring 1200 square yards of khasra No. 731 (30-

0) situated in village Madanpur Khadar, New Delhi being bhumidar of undivided share of the joint holding? OPP 2 Does the defendant establish that the plaintiff is not in physical possession of the suit land as alleged in the written statement? OPD

3. Relief.

7 The plaintiff in support of her case has examined two witnesses

i.e. her attorney Manoj Kumar as PW-1 and Mr.Giri Raj Singh as PW-2.

The defendant has also produced two witnesses.

8 Oral and documentary evidence has been perused. Arguments

have also been heard.

9     Issuewise findings read as under:-



10    Issues No. 1 & 2 will be decided by a common discussion. The

onus to discharge issue No. 1 was upon the plaintiff and the onus to

discharge issue No. 2 was upon the defendant.

11 The plaintiff has examined her attorney Manoj Kumar as PW-1.

He has reiterated the averments made in the plaint. He has deposed that

the plaintiff is a widow lady aged 80 years living permanently in Village

and Post Nadiawan, Distt. Lakhisarai, Bihar and occasionally visits

Delhi. She had purchased the suit property measuring 1200 square yards

in khasra No 731, village Madanpur Khadar in 1999 by a registered sale

deed dated 26.07.1990. The original khatoni of the khasra No. 731 along

with its English translation have been proved as Ex.PW-1/1; the ask

sizra has been proved as Ex.PW-1/2. Further averment is that she is in

physical possession of the suit land since then. Her attorney Manoj

Kumar was looking after her property. The boundary wall which was

constructed upon it, being in a dilapidated condition, had fallen down.

The site plan of the suit property has been proved as Ex.PW-1/3. She

requested Manoj Kumar to get the repairs of boundary wall done and

when he went there, he was met with opposition from Brahm Singh (the

defendant) who did not allow him to carry out the re-raising of the

boundary wall. He stated that he is the owner of the suit property. Oral

complaint was made to the police. It is further deposed that the plaintiff

came to know that Brahm Singh (the defendant) had filed a suit before

the District Judge which was a suit for specific performance, which

relief was declined to him on 22.07.2002. He had filed RFA

No.538/2002; record has been proved as Ex.PW-1/4. In this appeal, it

has not been stated by the defendant that he was in possession of the suit

land as is the vehement contention made in the written statement.

Submission being that the defendant has filed a false suit and the

plaintiff is all along in possession of the suit property. Police complaint

made to the said effect has been proved as Ex.PW-1/5.

12 This witness was subjected to a lengthy cross-examination. He

has stuck to his stand. He has reiterated that the plaintiff is the owner of

the suit property vide registered sale deed dated 26.07.1999 (Ex.PW-

1/1). This factum is not disputed. He denied the submission that the

plaintiff has never visited the suit property since the date of the purchase

and she is not in possession of the suit property. He denied the

suggestion that he is deposing falsely.

13 PW-2 had brought the summoned record from the SDM Office,

Kalkaji in respect of khasra No.731, village Madanpur Khadar. He

admitted that Ex.PW-1/1 is the khatoni and Ex.PW-2/1 is the ask sizra.

In his cross-examination, he admitted that khatoni Ex.PW-1/1 in respect

of khasra No. 731 is another khata and Ex.PW-1/1 measures 30 bighas.

It does not mention the other khata. The entire land in the khasra is a

joint holding. There is no partition in this khasra. There is no mark or

division in this entire holding. He could not say from the record as to

which bhumidar is in possession of which particular portion in this

khasra. He admitted that there is a difference between Ex.PW-1/1 and

Ex.PW-2/1. The sizra is of 41 bighas 4 biswas comprising of drain as

well.

14 This part of the cross-examination has been highlighted by the

learned counsel for the defendant to make a proposition that the sale

deed (Ex.PW-1/1) and ask sizra (Ex.PW-2/1) are distinct from one

another. This submission of the learned counsel for the defendant is not

quite correct. Ex.PW-1/1 refers to 30 bighas of land whereas Ex.PW-2/1

has a reference to 41 bighas and 4 biswas and this was obviously for the

reason that the drain has been included in Ex.PW-2/1 as well. On no

other count, is there any discrepancy in Ex.PW-1/1 and Ex.PW-2/1 and

no such discrepancy has been pointed out by the learned counsel for the

defendant.

15 DW-1 was the defendant himself. He has reiterated the averments

made in the written statement. His submission is that he is in actual

physical possession of 1 bigha of land in khasra No. 731, village

Madanpur Khadar and he had purchased this 1 bigha from Gulshan

Kumar Gulati who was the recorded bhumidar of 3 bighas and 7 biswas.

However, since Gulshan Kumar Gulati had not executed the sale deed in

his favour, he had filed a suit for specific performance i.e. suit

No.72/2000 titled Brahm Singh Vs. Gulshan Kumar Gaulati. This suit

had been disposed of on 22.07.2002. In this suit, it had been alleged by

the defendant that he had entered into an agreement to sell with Gulshak

Kumar Gulati dated 08.07.2000 wherein Gulshan Kumar Gulati had

agreed to sell him one bigha of land in khasra No. 731 for which Brahm

Singh had paid consideration of Rs.96,000/-. This suit was disposed of

on 22.07.2010. The relief of specific performance had been denied to

him. The money decree in the sum of Rs.76,000/- has been passed in his

favour. Against this judgment, an appeal had been filed in the High

Court i.e. RFA No.538/2002. This RFA was disposed of on 17.09.2013.

Copy of that judgment has been placed on record. The RFA had been

dismissed but the amount of Rs.76,000/- granted in favour of Brahm

Singh had been enhanced to Rs.96,000/-. The High Court had noted that

Brahm Singh had failed produce any revenue record of Gulshan Kumar

Gulati from the revenue department to show that Gulshan Kumar Gulati

was in fact the owner of the land which he had agreed to sell to Brahm

Singh. The High Court had endorsed the finding of the District Judge

that in the absence of a record of jamabandi or khatoni in favour of

Gulshan Kumar Gulati, it would be wholly unsafe to grant a decree of

specific performance as there was nothing on record to show that

Gulshan Kumar Gulati was the owner of the subject matter of land

which he had agreed to sell to Brahm Singh.

16 The suit record as also the record of the RFA has been proved. It

is a part of the Court record. A perusal of this record substantiates the

submission of the learned counsel for the plaintiff that in fact the

defendant has nowhere averred that he was in physical possession of the

suit property. This pleading is completely absent either in the suit or in

his RFA. It was obviously for the reason that the defendant was never in

possession of the suit land and that is why it did not find mention in his

pleadings. Thus the plea set up by the defendant that he is in possession

of the suit land has not been established. Besides the fact that in his

pleadings for specific performance, he had never averred that he was in

possession of the suit property, even before this Court, not a single piece

of evidence, either oral or documentary, has been brought on record to

substantiate the plea. There is nothing on record to show that he was or

is in possession of the suit land.

17 Record thus establishes that it is the plaintiff who is the recorded

owner of the suit land i.e. 1200 square yards in khasra No. 731 at village

Madanpur Khadar. This is evident from Ex.PW-1/1 which has also been

ratified by the SDM concerned examined as PW-2. The case set up by

the defendant that he was in possession of the suit land which he had

purchased from Gulshan Kumar Gulati, has been negatived. This relief

has been denied to him not only by the District Court but also by the

High Court. The matter has been set at rest. What is most relevant to

note is that the defendant, nowhere in his entire pleadings in his suit,

pleaded that he was in physical possession of the suit land which is the

vehement contention of the defendant before this Court. If this was the

position, this fact would have found mention in his pleadings. PW-2, the

official witness from the office of the SDM ratified the ownership of the

plaintiff in the suit land; the possession of the defendant in the suit land

could nowhere be inferred.

18 Thus it is established that the plaintiff being the owner of the suit

land and the defendant failing to show that he is in physical possession

of even 1 bigha of land in khasra No. 731 (as has been alleged), the

plaintiff is entitled to the relief claimed for.

19 Both these issues are accordingly decided in favour of the

plaintiff and against the defendant.

Relief

20 The plaintiff is entitled to a decree of permanent injunction

restraining the defendant Braham Singh/representatives/agents in

interfering in the construction of the boundary at the periphery of the

suit property and from in any manner interfering in the peaceful use and

occupation of the suit property. Costs of the suit are also awarded in

favour of the plaintiff. Decree sheet be drawn. File be consigned to the

record room.

21    Suit disposed of in the above terms.



                                             INDERMEET KAUR, J

FEBRUARY 12, 2015

A