Delhi High Court
Ram Singh & Anr. vs Sohinder Singh Bedi on 25 July, 2016
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ R.F.A. No.138/2005
% Date of Decision : 25th July, 2016
RAM SINGH & ANR. ..... Appellants
Through: Mr. S.N. Kumar, Senior
Advocate with K.B. Soni,
Advocates.
versus
SOHINDER SINGH BEDI ..... Respondent
Through: Ms. Kawaljit Kochar,
Ms.Vasundhra Singh and
Mr. Shreyas Mehrotra,
Advocates.
CORAM :-
HON'BLE MR. JUSTICE J.R. MIDHA
ORDER
1. The appellants have challenged the decree for possession of
property bearing No.93 measuring 210 sq. yds., Prakash Mohalla,
Sant Nagar Extension, Village Garhi, Jharia Maria, New Delhi. For
the sake of convenience, the appellants and the respondent are
referred to as per their ranks before the Trial Court as 'the
defendants' and 'the plaintiff' respectively.
2. Plaintiff's case
2.1. The plaintiff is the owner of plot No.93 measuring 210 sq.
yds., Prakash Mohalla, Sant Nagar Extension, Village Garhi,
Jharia Maria, New Delhi, hereinafter referred to as "the suit
property", having purchased the same from Bhagat Singh
vide registered sale deed dated 23rd February, 1960. The
plaintiff received the possession of the suit property from the
previous owner at the time of the sale deed.
2.2. On 3rd July, 1974, the plaintiff visited the suit property and
found Bhagat Singh and some other persons raising a wall on
the suit property whereupon the plaintiff stopped them from
raising the wall with the help of the police.
2.3. On 24th September, 1974, the plaintiff got the suit property
demarcated by Girdawar Kanungo along with Patwari under
the order of Tehsildar, Mehrauli.
2.4. In November 1974, the plaintiff again visited the suit
property and found the defendants in illegal occupation.
2.5. On 22nd December, 1982, the plaintiff instituted the suit for
possession against the defendants.
3. Defendant's case
3.1. The defendants are owners in possession of property
bearing No.226-B/6, Prakash Mohalla, Sant Nagar
Extension, Village Garhi, Jharia Maria, New Delhi having
purchased the same along with construction thereon from
Bhagat Singh vide agreement dated 18th July, 1974. At the
time of purchase in 1974, property No.226-B/6 was built up
and Bhagat Singh was residing there and paying House
Tax.
3.2. Plot No.93 being claimed by the plaintiff is adjacent to the
defendants' property No.226-B/6, Prakash Mohalla, Sant
Nagar Extension, Village Garhi, Jharia Maria, New Delhi.
3.3. Plot No.93 being claimed by the plaintiff is in occupation of
the Gurudwara which was built 25 years back.
4. Issues
The following issues were framed by the learned Trial
Court on 29th July, 2002:
"1. Whether the plaintiff is the owner of the plot No.93,
Prakash Mohalla, Sant Nagar, New Delhi.? OPP
2. Whether plot No.93 and municipal No. 226-B/6,
Prakash Mohalla, Sant Nagar, New Delhi are numbers
of distinct and separate properties? OPD
3. Whether the defendants are trespassers in Plot No.93,
Prakash Mohalla, Sant Nagar, New Delhi?OPP
4. Whether the plaintiff is entitled to possession of Plot
No.93, Prakash Mohalla, Sant Nagar, New Delhi?OPP
5. Relief."
5. Plaintiff's evidence
5.1. The plaintiff appeared in the witness box as PW-3 and
deposed that he purchased plot No.93, measuring 210 sq.
yds., Prakash Mohalla, Sant Nagar Extension, Village
Garhi, Jharia Maria, New Delhi vide registered sale deed
Ex.PW-2/1 from Bhagat Singh and received the possession
at the time of sale deed. PW-3 proved the site plan Ex.PW-
3/1. PW-3 deposed having visited the suit property in 1974
and saw the defendants trying to raise a wall whereupon he
informed the police who dissuaded the defendant's attempt.
PW-3 proved the copy of the complaint as Ex.PW-3/2.
PW-3 further deposed that he got the suit plot demarcated
from patwari and kanoongo in 1974. The certified copy of
the demarcation report was marked as Mark A. PW-3
deposed that the defendants illegally encroached upon the
suit property. In cross-examination, PW-3 denied that the
Gurudwara had been constructed on the suit plot.
5.2. PW-2 produced the official record containing the registered
sale deed dated 11th May, 1959 executed by Bhagat Singh
in favour of the plaintiff in respect of the suit property and
proved the sale deed as Ex.PW-2/1.
5.3. PW-4, President of Shree Gurudwara Singh Sabha, Prakash
Mohalla, Garhi, deposed that Gurudwara Singh Sabha
Committeee purchased plot No.91, measuring 306 sq. yds.,
Prakash Mohalla, Garhi, Jharia Maria, New Delhi for a
Gurudwara from Harbans Kaur vide sale deed Ex.PW-4/1.
PW-4 deposed that the Gurudwara was constructed on 200
sq. yds on land and the balance land of 106 sq. yds. was in
possession of defendant No.1. PW-4 further deposed that
the Gurudwara is bounded by plot No.89 and plot No.92.
5.4. PW-5, LDC from Record Room (Revenue) summoned to
produce the demarcation record relating to the suit property
deposed that the record has been destroyed with the
approval of the Deputy Commissioner on 20th May, 1982.
PW-5 produced the register in which the demarcation report
dated 10th October, 1974 was entered at Serial No.3481.
5.5. Ex.PW-2/1 - Registered sale deed dated 11th May, 1959
Ex.PW-2/1 is the sale deed dated 11th May, 1959 in respect
of plot No.93, measuring 210 sq. yds., Garhi, Jharia Maria,
New Delhi sold by Bhagat Singh to the plaintiff. The
particulars of the plot are mentioned in the sale deed.
5.6. Ex.PW-3/1 - Site Plan
Ex.PW-3/1 is the site plan in which plot No.93 is bounded by
a covered nala on the North of plot No.93, plot No.92 on the
South and gali on the East as well as West side. The site
plan is reproduced hereunder: -
5.7. Ex.PW-3/2 -Complaint dated 30th October, 1974 made by
plaintiff to the police
Ex.PW-3/2 is the complaint dated 30th October, 1974
whereby the plaintiff reported to SHO, P.S. Lajpat Nagar
that on 3rd July, 1974, the plaintiff visited the suit property
and found Bhagat Singh along with some other persons
raising a wall whereupon the matter was reported to the
police and Bhagat Singh was dissuaded to raise the wall. On
24th September, 1974, the suit property was demarcated by
the Girdawar Kanungo along with Patwari. In October,
1974, the plaintiff again went to the site found defendant
No.1 along with some other persons on the site who told the
plaintiff that they have been put into possession by Bhagat
Singh. The plaintiff sought registration of a case of criminal
trespass against the defendants and other persons.
5.8. Ex.PW-4/1 - Registered sale deed dated 28th January, 1970
Ex.PW-4/1 is the sale deed dated 28th January, 1970,
whereby Harbans Kaur sold plot No.91, measuring 306 sq.
yds., Prakash Mohalla Garhi, Jharia Maria, New Delhi to
Gurudwara Shri Singh Sabha. The particulars of the plot
No.91 mentioned in the sale deed are as under:
East : Plot No.89
West : Plot No.92
North : Road and Passage
South : Passage
5.9. Mark 'A' - Demarcation report dated 24th September, 1974
of Field Kanungo, Mehrauli
The relevant portion of English translation of the
demarcation report of the Kanungo is reproduced as under:
"Today, in accordance with the order of Tehsildar,
Mehrauli, I reached the site along with Sh. Randhir Singh
Patwari with record and measurement implements. The
above mentioned persons were present at the site. The site
was inspected. Those present correctly described the North
West corner of Kh. No.181/150 and South West Corner of
Kh. No. 191/183. These were measured and found correct.
On these corners pucca walls exist from threes very pucca
corner, measurements were made and both the Khasra
No.181/150, 182/150 were fixed on the spot and signs were
placed on each of these corners. Sardar Sohinder Singh Bedi
applicant pointed out the plot which was bounded by
Gurdwara in the East, Nala in the West and passage in the
North and South. He stated that this is the plot which is in
dispute between him and Sardar Bhagat Singh s/o Sher
Singh. He stated that the number of this plot is 93 which he
has purchased from abovementioned Bhagat Singh. He also
showed its registered deed. As per registered deed, the
applicant has purchased plot No.93, Kh. No.181-182/150,
area 210 sq. yds. situated at Village Jharia - Mariya, from
Shri Bhagat Singh. The applicant submitted a layout plan of
this locality. As per this plan, which is named as Sant Nagar
Extn. measurements were made and layout plan was found
correct. According to it, plot No.93 is the very place in
dispute which was pointed out by the applicant earlier and
which has been earlier mentioned. Now its number is 226-
B/6. This piece of land falls in khasra No.182/150 from all
this, it is found that plot No.93 is the land in dispute. The
registered deeds of the adjoining plots were seen. As per
registered deeds this plot contains plot No.92 in the East,
then 91 and 90, 89 which are in the same row, which clearly
shown that the layout is correct, so, from making
measurements as per registered deeds and layout plan it is
found that the site in dispute of which present number is 226-
B/6, is plot No.93 Khasra No.180/150 situated at Village
Jhariya Mariya, of which the registered deed is in the name
of the applicant. The area of this plot by making
measurements or the site, is found 315 sq. yds. and the area
of its adjoining plot No.92 is found 105 sq. yds. which shows
that in this dispute place, 210 sq. yds. is that of plot No.93
and 105 sq. yds. is of 92 which is Gurdwara."
(Emphasis supplied)
6. Defendant's evidence
6.1. Defendant No.1 appeared in the witness box as DW-2 and
deposed that he purchased property No.226-B/6, Prakash
Mohalla, Garhi, New Delhi along with his mother-in-law,
Kiran Devi - defendant No.2 on 18th July, 1974 from
Bhagat Singh on the basis of sale agreement dated 18 th July,
1974 which was exhibited as Ex.DW-2/1. He further
deposed that the property was built up at the time of the
purchase and was registered with Municipal Corporation of
Delhi in the name of Bhagat Singh who was paying the
House Tax. He further deposed that the subject property
was mutated in the name of the defendants and they had
been paying the House Tax. He further deposed that there
is a Gurudwara on the East and covered Nala on the West
of his property.
DW-2, in his cross-examination, deposed that he did not get
the sale deed executed from Bhagat Singh because there
was no provision for execution/registration of the sale deed
of the area in question in 1974. He further deposed that a
receipt and a will were also executed by Bhagat Singh in
favour of the defendants though Ex.DW-2/1 contains
reference to agreement, GPA, receipt, will and sale deed.
He admitted that Ex.DW-2/1 does not contain any
measurement or details of accommodation of house
No.226-B/6.
6.2. DW-1, clerk from Sub-Registrar's office, proved the
certified copy of the general power of attorney dated 6 th
May, 1966 executed by Gurcharan Singh in favour of
Bhagat Singh in respect of property bearing Khasra
Nos.181-182/150, Prakash Mohalla, Village Garhi, Jharia
Maria which was exhibited as Ex.DW-1/1. DW-1 also
proved the sale deed dated 10th December, 1958 executed
by Nathu Gujjar. and three others in favour of Gurcharan
Singh in respect of the plot Nos.73 to 76 and 91 to 93,
Khasra No.181, 182/150, measuring 1330 sq. yds, Village
Garhi, Jharia Maria, New Delhi which was exhibited as
Ex.DW-1/2.
6.3. DW-3, LDC from House Tax Department, MCD, produced
the record relating to property No.226-B/6, Prakash
Mohalla, Garhi, East of Kailash, New Delhi and proved the
copy of the assessment order dated 27th July, 1970 in
respect of property No.226-B/6 for the year 1966-67 as
Ex.DW-3/1 and the copy of the inspection form as Ex.DW-
3/2.
DW-3, in his cross-examination, deposed that in Ex.DW-
3/1, six Kotheries have been shown but no measurement
have been mentioned therein and in Ex.DW-3/2, five
Kotheries have been shown as rented and one Kotherie was
vacant. The measurement of the rented Kothereies have
been shown as 12x10 ft. and the measurement of the vacant
Kotherie has been shown as 12x10 ft. in Ex.DW-3/2.
6.4. DW-4, neighbourer of the defendants, deposed that he had
been living in Prakash Mohalla since 1959 and knew
Bhagat Singh who was living in Nehru Nagar at that time.
In 1968-69, some people occupied the plaintiff's land at
night. When Bhagat Singh came to know of this, he took
DW-4 to the plaintiff at his Patel Nagar residence. Bhagat
Singh told the plaintiff that Gurudwara people have taken
wrongful possession of your land and he should not later on
raise dispute with him whereupon the plaintiff replied that it
does not matter as the property would be the house of Baba
(deity). Bhahadur Singh owned plot No.92 and the
Gurudwara people even demolished the wall of his plot
whereupon Bhahadur Singh came and stopped the
dispossession. After this, Bhagat Singh shifted his
residence to house No.226-B/6 which he later on sold to the
defendants. DW-4 deposed that sale took place in his
presence. He deposed that Bhahadur Singh's plot No.92
was of 300 sq. yds. He further deposed that house No.226-
B/6 was towards West of the Gurudwara whereas the
Bhahadur Singh's house towards the East.
6.5. Ex.DW-1/1 - General Power of Attorney dated 6th May,
Ex.DW-1/1 is the general power of attorney executed by
Gurcharan Singh in favour of Bhagat Singh in respect of
Khasra Nos.181-182/150, Prakash Mohalla, Village Garhi,
Jharia Maria.
6.6. Ex.DW-1/2 - Sale Deed dated 10th December, 1958
Ex.DW-1/1 is the sale deed executed by Nathu Gujjar and
three others in favour of Gurcharan Singh in respect of plot
nos.73 to 76 and 91 to 93, total measuring 1330 sq. yds.
Village Garhi, Jharia Maria. The particulars of the plots
sold are described in the sale deed as under:
"Plot Nos,73, 74, 75 and 76 bounded as under:-
on the East..............Lane 15 ft.
on the West............Plot No.77
on the North...........Lane 15 ft.
on the South...........Road 30 ft.
"Plot Nos.91, 92 and 93 bounded as under:-
on the East...............Plot No.90
on the West.............Lane 15 ft.
on the North...........Road 30 ft.
on the South ..........lane 15 ft."
6.7. Ex.DW-2/1 - Agreement to Sell dated 18th July, 1974
Ex.DW-2/1 is an agreement to sell by Bhagat Singh in
favour of the defendants in respect of house No.226-B/6,
Prakash Mohalla, Village Garhi, Jharia Maria for a
consideration of Rs.21,000/-. The agreement does not
mention the area of the property. However, the agreement
gives the specifications which are as under:
East : Plot No.93, construction of Singh Sabha
Gurudwara
West : Nala
North : Passage
South: Passage
6.8. Ex.DW-3/1 - Assessment order dated 27th July, 1970 of
MCD
Ex.DW-3/1 is the assessment order dated 27th July, 1970 in
respect of property No.226/B/6, Garhi, Jharia Maria. The
order records six Kotheries but no measurement has been
mentioned therein.
6.9. Ex.DW-3/2 - Inspection form of MCD
Ex.DW-3/2 is the inspection form of MCD according to
which, property No.226-B/6 was inspected on 20th August,
1970 and six rooms measuring 12 x 10 feet were noticed.
6.10. Ex.D-X
The defendants tendered the certified copies of the
documents filed by the plaintiff in CR No.491/1997 which
were marked as Mark DX.
7. Findings of the Trial Court
The learned Trial Court decreed the plaintiff's suit for
possession in respect of plot bearing No. 93, measuring 210 sq.
yds., Prakash Mohalla, Sant Nagar Extension, Village Garhi, Jharia
Maria, New Delhi as shown in red colour in the site plan Ex.PW-
3/2. The findings of the learned Trial Court are as under:-
7.1. Issue No.1
With respect to issue No.1, the learned Trial Court held the
plaintiff to be the owner of the plot No.93 Prakash Mohalla,
Sant Nagar Extension, Village Garhi, Jharia Maria, New
Delhi on the basis of the registered sale deed Ex.PW-2/1.
7.2. Issue No.2
With respect to issue No.2, the learned Trial Court held that
the onus of issue No.2 was on the defendants who failed to
prove that plot Nos.93 and 226-B/6 are two distinct and
separate properties. The reasons given by the learned Trial
Court are as under:-
7.2.1. The plaintiff's plot No.93 is next to a covered nala on the
West whereas defendants plot No.226-B/6 is also next to the
covered nala on the West and therefore, the two properties
are not distinct and separate but overlapping. The plaintiff's
plot No.93, measuring 210 sq. yds. is part of the defendants
holding.
7.2.2. The Trial Court rejected defendants' contention that
plaintiff's plot No.93 is an illegal and unauthorized
occupation of the Gurudwara on the ground that the sale
deed of the Gurudwara (Ex.PW-4/1) is in respect of plot
No.91.
7.2.3. The plaintiff's sale deed Ex.PW-2/1 does not reflect a plot of
300 sq. yds. or more on its West.
7.3. Issue No.3
With respect to issue No.3, the learned Trial Court held that
the plaintiff proved having purchased plot No.93 from
Bhagat Singh vide registered sale deed Ex.PW-2/1 in the
year 1951 and Bhagat Singh illegally and unauthorizedly put
the defendants in possession of plaintiff's plot taking
advantage of the fact that the plaintiff did not reside in the
vicinity. The plaintiff lodged a complaint, Ex.PW-3/2 and
also took steps to get his property demarcated. The
defendants claim to have come into possession on 18 th July,
1974 by Bhagat Singh on the basis of Ex.DW-2/1 but this
document is a meaningless piece of paper as plot No.93 and
226-B/6 are not distinct and separate properties. The Trial
Court therefore, held that the defendants have illegally
encroached upon plot No.93, Prakash Mohalla, Sant Nagar
Extension, Village Garhi, Jharia Maria, New Delhi.
7.4. Issue No.4
With respect to issue No.4, the learned Trial Court held that
the plaintiff being the owner is entitled to possession of plot
No.93, measuring 210 sq. yds which falls in Municipal
No.226-B/6 forming part of Khasra No.181-182/150, Sant
Nagar Extension, Village Garhi, Jharia Maria, New Delhi,
adjoining East of covered nala.
8. Report of the Local Commissioner
8.1. Vide order dated 3rd October, 2006, the Division Bench of
this Court appointed a Local Commissioner to ascertain the total
area underlying plots No.73 to 76 and 91 to 93 purchased by
Gurcharan Singh by sale deed (Ex.DW-1/2); persons in occupation
of plots No.91 to 93 and the total land area in their occupation,
location of property No.226/B-6 and whether it occupies any part
of plots No.91 to 93. The relevant portion of the order dated 3rd
October, 2006 is reproduced hereunder:
"This appeal arises out of a decree for possession
passed by the trial court in a suit filed by the
plaintiff/respondent. The plaintiff's claim that he has
purchased plot No.93 situated in Prakash Mohalla, Sant
Nagar Extension, Village Garhi, Jharia Maria, New Delhi
from one Sardar Bhagat Singh in terms of a sale deed
marked Ex.DW1/2 has been accepted by the trial court and
a decree for possession of the said plot of land passed in his
favour. The defendant/appellant's case as argued before us
by Mr. Kumar, senior counsel appearing for him is that the
defendant/appellant is in occupation of municipal property
No.226/B-6 which does not occupy or encroach upon any
part of plot Nos. 91, 92 or 93 purchased by late Shri.
Gurcharan Singh. It is submitted by Mr. Kumar that the
defendant/appellant is a transferee of a house which Bhagat
Singh had constructed by encroaching upon the
passage/land situated on the western side of plot No.93
claimed by the plaintiff.
Having heard learned counsel for the parties at considerable
length, we are of the opinion that the appointment of a Local
Commissioner for preparation of a site plan showing the
location of the land which Gurcharan Singh had purchased
from Nathu Gujar in terms of sale deed Ex.DW1/2 and
details about the persons who are occupying different
portions of land out of the said area is necessary for a
proper appreciation of the evidence which the parties have
adduced at the trial. We must say to the credit of learned
counsel for the parties that after addressing arguments for a
few days and after taking us through the evidence, they were
agreeable to the appointment of a Commissioner to elucidate
the position obtaining on the spot in light whereof the appeal
could be finally disposed of. Appointment of a commissioner
is necessitated additionally by the fact that there is no
evidence to show as to what was the total area underlying
plots No. 73 to 76 which are situated across the road
towards the north of the suit property and which were also
purchased in terms of sale deed Ex.DW1/2. Similarly, there
is no evidence on record to show as to what was the total
area which Gurcharan Singh had purchased in terms of the
sale deed mentioned above comprising plot Nos. 91, 92 and
93. There is also some confusion as to the exact location of
the houses built over these plots, the total extent of land
underlying the said structures including the Gurdwara which
is said to be situated in plot No.91 but which according to
Mr. Kumar, counsel appearing for the appellant, is actually
constructed on plot No.93.
In the totality of these circumstances and with the consent of
learned counsel for the parties, we appoint Sh. Rattan
Chand, Joint Registrar, High Court of Delhi, as a Local
Commissioner to visit the spot and to submit a report
amongst others on the following aspects :-
(1) What is the total land area purchased by Gurcharan
Singh in terms of sale deed Ex.DW1/2 underlying plots No.
73 to 76 referred to in the said sale deed.
(2) What is the total area underlying plots No. 91 to 93
purchased by Gurcharan Singh in terms of the sale deed
referred to above.
(3) Who are the persons in occupation of plots No. 91 to 93
referred to in the sale deed Ex.DW1/2.
(4) What is the total land area in occupation of the persons
referred to in item No.(3) above and what is the extent of
construction raised by them.
(5) Where is municipal property No.226/B-6 situated and
whether the said property occupies any part of plot Nos. 91
to 93 purchased by Gurcharan Singh.
The Local Commissioner shall engage the services of an
Architect and a photographer and also take the assistance of
the Tehsildar, Patwari and Kanungo of the area in drawing
up a comprehensive site plan in respect of the plots and the
area mentioned above giving particulars and measurements
of the area underlying the plots number referred to in the
sale deed of Gurcharan Singh and also the particulars of
those who are in occupation of the same. The
Commissioner/Architect shall indicate in the comprehensive
site plan the boundaries and dimensions of the property
referred to in Ex.DW1/2. The existence of the lanes and their
measurements and also the covered/uncovered nala, if any,
situated on the western side of the property shall also be
verified and reported by the Local Commissioner.
The Local Commissioner shall have the authority to record
the statements of the occupants of different properties to
enable him to submit a report on the aspects mentioned in
the body of this order. He shall also have the assistance of
the local police, if so required. The choice of the architect to
be engaged for the purpose is left to the Local
Commissioner.
The parties shall be free to associate themselves with the
process of preparation of the site plan and submission of the
report but shall not interfere, in any manner, with the
completion of the job assigned to the Commissioner. They
shall in every respect cooperate with the Commissioner to
ensure that the Commissioner's report reaches this court at
an early date."
(Emphasis supplied)
8.2. The Local Commissioner submitted his report dated 27 th
October, 2007. The findings of the Local Commissioner are as
under:-
8.2.1. Gurcharan Singh purchased seven plots No.73 to 76 and 91
to 93 measuring 1330 sq. yds. of land from Nathu Gurjar and
others.
8.2.2. Four plots bearing No.73 to 76 bear municipal Nos.209-A,
209, 210 and 210 total measuring 805 sq. yds. and they are
located towards North East of the Gurudwara.
8.2.3. Plot No.92 was purchased by Bahadur Singh and after his
death, his two sons Niranjan Singh and Praduman Singh are
residing there.
8.2.4. Plot No.93 measuring 204 sq. yds. is in occupation of the
Gurudwara though the Gurudwara is having a sale deed of
plot No.91, measuring 306 sq. yds. (Ex.PW-4/1).
8.2.5. The defendants are in occupation of house No.226-B/6 under
agreement dated 18th July, 1974 (Ex.DW-2/1) which is
bounded on the North and South by a passage and on the
East by plot No.93 (Gurudwara) and on the West by a Nala.
8.2.6. Property No.226-B/6 touches the boundary of the nala on the
East side and Gurudwara on the West and it does not occupy
any portion of land purchased by Gurcharan Singh i.e. 1330
sq. yds.
8.3. Objections of the Plaintiff to the report of the Local
Commissioner
The plaintiff raised following objections to the Report of the
Local Commissioner:-
8.3.1. The Local Commissioner has overstepped his authority in
assuming the authority of the Court and attempted to give a
finding which is liable to be struck off.
8.3.2. The Local Commissioner failed to find the identity and situs
of plot No.91 whereas the record filed before him did point
out the existence of plot No.91. Plot No.91, owned by
Harbans Kaur, was sold to Shree Gurudwara Singh Sabha.
Plot No.92 was purchased by Bahadur Singh who
constructed on plot No.91 whereupon Shree Gurudwara
Singh Sabha constructed on 204 sq. yds. of plot No.92 and a
portion of 100 sq. yds was under illegal occupation of
Bhagat Singh.
8.3.3. The Local Commissioner ignored the demarcation report -
Mark A which noted that the defendants were in illegal
occupation of 210 sq. yds of plot No.93 and 105 sq. yds. of
plot No.92.
8.3.4. The Local Commissioner did not take into consideration the
boundaries mentioned in Ex.DW-1/2 as well as Ex.PW-2/1.
8.3.5. The Local Commissioner erred in taking the starting point of
measurement from plot No.92 instead of covered Nala.
8.3.6. The Local Commissioner erred in not correctly determining
the location of plot No.92 which was germane to the entire
dispute. It appears that on account of mistake or
misjudgement, sons of Bahadur Singh occupied plot No.91
(instead of plot No.92) and Shree Gurudwara Singh Sabha
occupied plot No.92 (instead of plot No.91) since Shree
Gurudwara Singh Sabha constructed the Gurudwara in 1974
only on 204 sq. yds of land rather than 306 sq. yds as per the
sale deed.
8.4. On 18th May, 2010, this Court considered the Local
Commissioner's report dated 27th October, 2007 and observed that
the Local Commissioner has proceeded to record the submissions
of the parties, analysed the documents already existing on records
and recorded his findings which exercise had to be undertaken by
this Court. This Court further observed that the results of the spot
inspection are not clear from the report and the report does not at
all clarify the matters in controversy between the parties. The
objections of the plaintiff also highlight the lacuna in the report.
This Court therefore, directed the Local Commissioner to be
examined and cross-examined by the parties. The relevant portion
of the order dated 18th May, 2010 is reproduced hereunder:
"It appears that what, in fact, the Local Commissioner has
done is that he has proceeded to record the submissions of
the parties, analysed the documents already existing on the
records and recorded his findings thereon. If an analysis of
the documents was all that that was required, in my view, the
said exercise could have undertaken by this Court.
Indubitably, something far more was required. The report of
the Local Commissioner states that spot inspection was
undertaken. The results of the spot inspection, however,
cannot be gleaned from the report. Thus, the Local
Commissioner though has submitted his report on the five
aspects detailed hereinabove, the report does not at all
clarify the matters in controversy between the parties. The
objections filed by the plaintiff-respondent further highlight
the lacunae in the report.
When the aforesaid factual position was brought to the
notice of the learned senior counsel for the parties, the
learned senior counsel for the parties very fairly stated that
in the present case, the Local Commissioner was not
examined/cross-examined, which exercise, if undertaken,
would have served to clarify the picture, In my view,
therefore, the provisions of sub-rule (3) of Rule 10 of Order
XXVI CPC are required to be pressed into service, which
read as under:-
"10. Procedure of Commissioner:-
(1) .......................
(2) .......................
(3) Commissioner may be examined in person. - Where the
Court is for any reason dissatisfied with the proceedings of
the Commissioner, it may direct such further inquiry to be
made as it shall think fit.
In view of the aforesaid, it is directed that the Local
Commissioner Shri Rattan Chand shall remain present in
person and may be examined and cross-examined by the
counsel for the parties."
(Emphasis supplied)
8.5. The Local Commissioner was examined before the Registrar
on 2nd July, 2010 and thereafter, cross-examined at length by the
plaintiff.
9. Submissions of appellants (defendants)
9.1. The agriculturists Nathu Gujjar and his family laid a colony
and by registered sale deed dated 18th December, 1958 (Ex.DW-
1/2) sold seven plots measuring 1330 sq. yds. to Gurcharan Singh,
father-in-law of Bhagat Singh, who without having any registered
power of attorney sold six plots including plot No.93 to the
plaintiff. Bhagat Singh thereafter encroached upon the Rasta
between plot No.93 and nala and constructed a house which was
given No.226-B/6. By agreement to sell dated 18th July, 1974
(Ex.DW-2/1) Bhagat Singh sold property No.226-B/6 to the
defendants.
9.2. The defendants are the lawful owners of plot No.226-B/6,
Prakash Mohalla, New Delhi having purchased the same from
Bhagat Singh vide agreement to sell dated 18 th July, 1974
(Ex.DW2/1).
9.3. Properties No.93 and 226-B/6 are numbers of distinct and
separate properties.
9.4. Property No.226-B/6 is adjacent to plot No.93. The plaintiff
has himself mentioned the suit property as plot No.93 measuring
210 sq. yds. adjacent to property No.226-B/6, Prakash Mohalla
Garhi, New Delhi in the original plaint. The plaintiff sought the
amendment of the plaint to cover the defendants' property which
was allowed by the Trial Court but upon challenge by the
defendant before this Court in revision, the amendment was set
aside.
9.5. Plot No.93 being claimed by the plaintiff is in occupation of
the Gurudwara. The defendants proved that Gurudwara has
encroached upon plot No.93 by examining DW-4 who deposed that
he went to the plaintiff along with Bhagat Singh to inform him
about the encroachment in 1968.
9.6. The plaintiff has filed a site plan Ex.PW-3/1 according to
which plot No.93 is a rectangle whereas there is no rectangular plot
on the site. The defendants have filed a site plan to show that plot
No.226-B/6 is not rectangular (20 ft. X 35 ft). The architect
appointed by the Local Commissioner has prepared a site plan
which confirms that Ex.PW-3/1 is not correct.
9.7. The demarcation report dated 24th September, 1974 (Mark
A) has not been proved and is not admissible in evidence. Neither
Bhagat Singh nor the defendants were called at the time of
inspection.
9.8. The plaintiff's suit for possession is barred by limitation as
property No.226-B/6 was built up and assessed to House Tax in the
year 1966-67 as per the assessment order and the inspection form
whereas the suit has been instituted more than 12 years after the
dispossession.
9.9. The sale deed Ex.PW-2/1 dated 23rd February, 1960 has been
executed by Bhagat Singh who was not the owner of plot No.93
and therefore, had no power to sell the same to the plaintiff.
Gurcharan Singh was the owner of the suit property and his son-in-
law, Bhagat Singh, had no right to sell the same.
9.10. The plaintiff has made comments on the defendants'
agreement to sell executed by Bhagat Singh. The plaintiff can
succeed on the strength of his own case and not on the weakness in
the case of the defendants. .
10. Submissions of the respondent (plaintiff)
10.1. The plaintiff is the owner of plot No.93 measuring 210 sq.
yds. Prakash Mohalla, Sant Nagar, New Delhi having purchased
the same from Bhagat Singh vide registered sale deed dated 23rd
February, 1960. The plaintiff received the possession from Bhagat
Singh at the time of execution of the sale deed. The sale deed has
been proved by the plaintiff as Ex.PW-2/1.
10.2. The plaintiff visited the suit property on 3rd July, 1974 when
he found Bhagat Singh and other persons raising a wall on the suit
property. The plaintiff reported the matter to the police on 30 th
October, 1974. Copy of the complaint made to the police has been
proved as Ex.PW-3/2.
10.3. On 24th September, 1974, the suit property was demarcated
by Girdawar Kanungo along with Patwari and their report is Mark
'A'. PW-5 from the record room deposed that the record has been
destroyed with the approval of the Deputy Commissioner on 20 th
May, 1982. The witness, however, produced the register in which
the demarcation report was entered at serial No.3481. The certified
copy of the demarcation report is admissible in evidence under
Section 65 of the Indian Evidence Act as the original has been
destroyed.
10.4. The plaintiff again visited the suit property in November,
1974 when he found the defendants in illegal possession.
10.5. The defendants have falsely claimed that plot No.93 and plot
No.226-B/6 are distinct properties. The plaintiff has proved the
site plan of the suit property as Ex.PW-3/1. As per the sale deed
Ex.PW-2/1 as well as the site plan Ex.PW-3/1, the plaintiff's plot is
adjoining the nala. Property No.226-B/6 is also abutting the nala.
As such, plot No.93 and 226-B/6 are not distinct properties.
10.6. The defendants have falsely claimed that plaintiff's plot
No.93 is in occupation of the Gurudwara. The plaintiff examined
the President of the Gurudwara as PW-4 who proved the sale deed
of the Gurudwara as Ex.PW-4/1. As per the sale deed, the
Gurudwara purchased plot No.91 which is bounded by plot No.89
and 92. Since the Gurudwara is not bounded by the nala, the
Gurudwara cannot be on plot No.93.
10.7. The defendants have set up an agreement Ex.DW-2/1 alleged
to have been executed by Bhagat Singh in favour of the defendants.
The plaintiff's submission is that the agreement is not genuine as it
does not bear the signatures of the seller Bhagat Singh. The
signatures of Bhagat Singh on various documents on record may be
seen in this regard. The agreement Ex.DW-2/1 does not even give
the area of the land agreed to be sold.
10.8. The defendants have raised a plea that plot No.226-B/6 is the
public land encroached upon by Bhagat Singh and sold to the
defendants. However, no evidence whatsoever has been led by the
defendants to prove that the land in occupation of the defendants is
a public land encroached upon by the defendants.
10.9. The defendants have raised an objection that the plaintiff has
pleaded in the plaint that plot No.93 is adjacent to plot No.226-B/6
and, therefore, the defendants cannot claim the possession of plot
No.226-B/6. In this regard, it is submitted that the plaintiff filed a
site plan along with the plaint which has been proved as Ex.PW-3/1
which clearly shows that the location of the plot as abutting the
nala. The plaintiff also proved the sale deed - Ex.PW-2/1
according to which the plot No.93 is bounded by lane. The
defendants are in occupation of 402 sq. yds. of land out of which
the plaintiff is claiming 210 sq. yds. towards the nala meaning
thereby that the defendants would still be left with 190 sq. yds. of
land adjoining the Gurudwara. The plaintiff submits that since the
defendants would be still left with 190 sq. yds. of land in plot
No.226-B/6, the plaintiff's plot No.93 is adjacent to the remaining
190 sq. yds. of plot No.226-B/6 of the defendants. This is a case of
mis-description and not a case of disputed identity.
10.10. The defendants have raised an objection that since
Gurudwara's sale deed Ex.PW-4/1 is in respect of plot No.91, the
defendants plot No.226-B/6 would chronologically be plot No.92
and not 93. In this regard, it is submitted that the Gurudwara
appears to have been built on plot No.92 and, therefore, plot
No.226-B/6 would be plot No.93.
10.11. The defendants have raised an objection that they purchased
plot No.226-B/6 vide agreement dated 18th July, 1974 (Ex.DW-2/1)
which was a built up property at that time and was assessed by
municipal corporation in the name of Bhagat Singh who was
paying House Tax. It was further submitted that property No.226-
B/6 was assessed to property tax by assessment order dated 27 th
July, 1970 for the year 1966-67. The assessment order and the
inspection form are Ex.DW-3/1 and Ex.DW-3/2. In this regard, it
was submitted that as per Ex.DW-3/1, the area of six rooms have
been shown as 12 x 10 feet each which would make it about 100
sq. yds. of land. It was submitted that the 100 sq. yds. of land in
occupation of the defendants adjoining the Gurudwara belonged to
the Gurudwara and has been illegally encroached upon by the
defendants. PW-4, President of the Gurudwara has proved that the
Gurudwara has sale deed on 306 sq. yds. out of which the
Gurudwara is built on 200 sq. yds. and balance 106 sq. yds. is in
occupation of the defendants. Ex.DW-3/1 and Ex.DW-3/2
therefore do not in any manner affect the plaintiff's claim.
10.12. With respect to the defendants objection that the suit was
barred by limitation, it was submitted that the defendants
encroached upon the plaintiff's land in November, 1974 and the
suit was filed within 12 years on 22nd December, 1982 and
therefore, the suit is within limitation. It is further submitted that
the defendants gave up this objection before the Trial Court
whereupon the issue of limitation framed earlier on 28 th March,
1995 was dropped at the time of framing the issues on 29th July,
2002, and therefore, the defendants cannot raise this objection.
11. Discussion and findings
Title of the suit property
11.1 The plaintiff has duly proved his title in respect of plot no.93
measuring 210 sq. yards Prakash Mohalla, Sant Nagar Extension,
Village Garhi, Jharia Maria, New Delhi by the sale deed-Ex.PW-
2/1 as held by the learned Trial Court.
11.2 The defendants have also admitted the plaintiff's title in
respect of plot No.93 by examining DW-4 who was living in
Prakash Mohalla since 1959 and was aware of the plaintiff's title in
respect of plot No.93. DW-4 deposed that Bhagat Singh took him
to the plaintiff in 1968-1969 to inform the plaintiff that Gurudwara
had encroached upon the plaintiff's plot.
Agreement dated 18th July, 1974 (Ex.DW-2/1) set up by the
defendants
11.3 The defendants are claiming title of plot No.226-B/6 on the
basis of the Ex.DW-2/1 agreement dated 18th July, 1974 whereby
Bhagat Singh as general attorney of Balwant Kaur (widow of late
Gurcharan Singh), Mohan Singh (son of late Gurcharan Singh) and
Mohinder Kaur (daughter of late Gurcharan Singh) agreed to sell
property No.226-B/6 to the defendants. However, the agreement
set up by the defendants does not confer title on the defendants, as
Bhagat Singh never owned any property by the No.226-B/6.
Bhagat Singh was selling the lands belonging to the Gurcharan
Singh who had purchased 1330 sq. yards of land which included
plots No.73 to 76 and 91 to 93 which had been sold prior to the
date of the agreement i.e. 18th July, 1974 meaning thereby, that on
the date of the agreement of the agreement dated 18 th July, 1974,
Gurcharan Singh or his legal representatives never owned any
property which is alleged to have been sold.
11.4 The agreement Ex.DW-2/1 dated 18th July, 1974 set up by
the defendants does not contain the area/measurement of the
property sold and therefore, the agreement is void for uncertainty
under Section 29 of the Indian Contract Act.
11.5 The signatures of Bhagat Singh on the agreement dated 18 th
July, 1974 does not match with his admitted signatures on the sale
deeds on record.
11.6 The agreement dated 18th July, 1974 is executed by Bhagat
Singh as general attorney of the legal representatives of late
Gurcharan Singh, namely, Balwant Kaur (widow), Mohan Singh
(son) and Mohinder Kaur (daughter). However, the general power
of attorney of the executants have not been proved.
11.7 The agreement dated 18th July, 1974 does not contain any
description/particulars of the title of the seller to sell the property
No.226-B/6.
11.8 The agreement dated 18th July, 1974 is an unregistered
document.
Location of plot No.93
11.9 The plaintiff has filed the site plan Ex.PW-3/1 according to
which plot No.93 is a rectangular plot measuring 210 sq. yds.
abutting the nala. However, the site plan dated 1st May, 2007 (at
page 637 of the documents file) prepared by the architect appointed
by the Local Commissioner in terms of the direction of the
Division Bench of this Court and accepted by both the parties, does
not reflect the location of a rectangular plot measuring 210 sq. yds.
out of 402 sq. yds. of land in occupation of the defendants.
11.10 The plaintiff is claiming 210 sq. yds. of land out of 402 sq.
yds. in occupation of the defendants. However, the Trial Court has
not determined as to which portion measuring 210 sq. yds. out of
402 sq. yds. in possession of the defendants, would be the
entitlement of the plaintiff.
11.11 The main defence of the defendants is that the property
bearing No.226-B/6 comprising of land measuring 402 sq. yds. is
public land encroached by Bhagat Singh and sold to the
defendants. Reference may be made to the order dated 3 rd
October, 2016 of the Division Bench in which the Division Bench
recorded the defence statement and thereafter, appointed a Local
Commissioner. Relevant portion of the port of the order dated 3 rd
October, 2016 is reproduced hereunder:
"The defendant/appellant's case as argued before us by
Mr. Kumar, senior counsel appearing for him is that the
defendant/appellant is in occupation of municipal property
No.226/B-6 which does not occupy or encroach upon any
part of plot Nos. 91, 92 or 93 purchased by late Shri.
Gurcharan Singh. It is submitted by Mr. Kumar that the
defendant/appellant is a transferee of a house which Bhagat
Singh had constructed by encroaching upon the
passage/land situated on the western side of plot No.93
claimed by the plaintiff."
(Emphasis supplied)
11.12 The Local Commissioner in his report has not ascertained as
to whether property No.226-B/6 is built over public land.
11.13 From the documents on record, it is not possible to
adjudicate whether property No.226-B/6 is on public land as
alleged by the defendants and if it is not on public land, the
plaintiff is entitled to which portion measuring 210 sq. yds. out of
402 sq. yds. in possession of the defendants.
11.14 It is the fundamental duty of this Court to ascertain the truth
and do justice on the basis of truth. Reference be made to Ved
Prakash Kharbanda v. Vimal Bindal, 198 (2013) DLT 555 in
which this Court has discussed the principles relating to the duty of
Court to discover the truth.
11.15 This Court is of the view that a fresh demarcation of plot
No.93 by the Revenue Authorities is necessary to determine
whether whole or any part of the property No.226-B/6 is built on
public land and what is the true demarcation of plot No.93
measuring 210 sq. yds.
11.16 Since the evidence led by both the parties is not sufficient
to adjudicate issues No.2 to 5, this Court in exercise of power
under Order XLI Rule 27 (1)(b) of the Code of Civil Procedure
considers it necessary to direct for fresh demarcation of property
No.93 by the Revenue Authorities.
12. Conclusion
12.1. In the facts and circumstances of this case, Revenue
Authorities are directed to carry out a fresh demarcation of plot
No.93 measuring 210 sq. yds. Prakash Mohalla, Sant Nagar
Extension, Village Garhi, Jharia Maria, New Delhi in the presence
of both the parties within a period of eight weeks from today.
12.2. The Revenue Authorities shall prepare the correct site plan
of the area and demarcate plot No.93 on the site plan. The
demarcation report shall also certify as to whether whole or any
portion of property No.226-B/6 is on public land and if so, the
same be marked on the site plan.
12.3. The concerned ADM shall remain present at the site at the
time of demarcation and he shall ensure that demarcation is carried
out in the presence of both the parties. The concerned ADM shall
also ensure that an opportunity of hearing is afforded to parties
before finalising the demarcation.
12.4. The copy of the demarcation report be filed before this Court
in a sealed cover.
12.5. The copy of the site plan prepared by the architect, which is
at page 637 in the documents file, shall form part of this order and
the copy of the same be sent to the Revenue Authorities through
Senior Standing Counsel of Govt. of NCT of Delhi. The parties are
at liberty to submit a compilation of relevant documents before the
Revenue Authorities.
12.6. List for directions on 17th October, 2016.
12.7. All the contentions of the parties other than those in respect
of which findings are recorded in paras 11.1 to 11.8 above, shall be
considered after the receipt of the demarcation report.
12.8. Copy of this order be given dasti under the signatures of the
Court Master to both the parties.
12.9. Copy of this order along with the copy of the site plan at
page No.637 be also given dasti to Mr. Rahul Mehra, learned
Senior Standing Counsel for Govt. of NCT of Delhi who shall
ensure the compliance of this order by the Revenue Authorities.
J.R. MIDHA, J.
JULY 25, 2016
dk/rsk/dev
