Rajesh Kumar vs Shanta Vashisht
2017 Latest Caselaw 5931 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI

                                Judgment delivered on : October 27th, 2017

+   RFA 519/2009

    RAJESH KUMAR                                        ..... Appellant
                       Through       Mr.R.D. Chauhan, Adv. with
                                     appellant in person.

                       versus

    SHANTA VASHISHT                                   ..... Respondent
                 Through             Mr.B.Tripathy & Mr.Randhir Pandey,
                                     Advs.


    CORAM:
    HON'BLE MR. JUSTICE P.S.TEJI

                                 JUDGMENT

P.S.TEJI, J.

1. The present appeal has been filed by the appellant against the judgment and decree dated 05.12.2009 passed by the learned Additional District Judge, Delhi whereby the suit filed by the plaintiff/respondent for recovery of possession, use/occupation charges/damages/mesne profits and mandatory injunction had been decreed in favour of the plaintiff /respondent and against the defendant/appellant.

2. The facts enumerating from the plaint filed before the Court below are that the plaintiff/respondent is the owner of agricultural land

measuring 5 bighas and 19 biswas, situated at Khasra no.818, village Chattarpur, Tehsil Mehrauli, New Delhi. She had executed a General Power of Attorney for the management of the said land to one, Rajendra Pal Singh, in respect of one bigha thereof while for the remaining land, she had appointed Ishwar Chand as her General Attorney by way of a registered deed on 19.08.1996. The appellant/defendant allegedly trespassed into a portion of the said farm house and made some constructions therein. Thereafter, the appellant/defendant allegedly filed a false and frivolous suit in 1996 for the grant of permanent injunction which was dismissed in default. Subsequently, another suit was filed by the appellant/defendant in 2000 against a fictitious person namely Suresh Verma in order to get injunction by suppressing the real facts, but the same was also dismissed. The appellant/defendant alleged that he was the owner of property no.B-108, Chattarpur Extension, near Nanda Hospital, New Delhi and constructed a portion on that said land. He had purchased the said plot from M/S Runmex Estates (Dewan Singh) who was the Attorney of the plaintiff/respondent and was settling the plot for a consideration of Rs.1,20,000/-. The plaintiff/respondent has denied the appointment of M/S Runmex Estates for any purpose whatsoever, and has stated registering an FIR against Dewan Singh, which is pending investigation.

3. In the written statement filed on behalf of the appellant/ defendant, it was stated that he had purchased the land from Dewan

Singh who was Attorney of the plaintiff/respondent. He thereafter, denied all allegations of the plaintiff/respondent.

4. Replications to the written statements were filed on behalf of the defendants. On the basis of pleadings of the parties, following issues were framed by the Court below :

(1)Whether the defendant is a trespasser on the suit property? (OPP) (2)Whether the defendant is in lawful possession of the suit property in his own right? (OPP) (3)Whether the plaintiff is entitled to recovery of the possession of the suit property from the defendant? (OPP) (4)Whether the plaintiff is entitled to mandatory injunction as prayed for? (OPP).

(5)Relief.

5. To prove his case, the plaintiff placed on record affidavit of her attorney Ishwar Chand who proved the plan as Ex.PW1/1; General Power of Attorney as Ex.PW1/2; Special Power of Attorney as Ex.PW1/3; Khasra Girwari as Ex.PW1/4; another site plan as Ex.PW1/5; copy of order disposing of injunction application as Ex.PW1/6; certified copy of the said suit filed by the defendant as Ex.PW1/7 and the photographs of construction are Ex.PW1/8 to Ex.PW1/11.

6. Feeling aggrieved by the judgment and decree in the present suit, the present appeal has been filed.

7. The main contention of the appellant is that the trial court has failed to appreciate the fact that the suit filed by the respondent was not maintainable as the same was filed through the attorney who had no power to file the said suit. Further, the learned Trial Court failed to appreciate the fact that the appellant had purchased a plot of 148 sq.yds on 04.04.1995 from M/s Runmex Estates who was the attorney of the plaintiff/respondent. Also, the appellant had raised construction from his own funds and therefore, the appellant had the right to use and occupy the premises in Chattarpur Extension, near Nanda Hospital, New Delhi. It was further argued that the suit filed by the respondent/plaintiff was not maintainable as the suit property is an agricultural land and the power to adjudicate the same vests with the revenue authorities and not in the civil court.

8. On the other hand, the case of the respondent/plaintiff is that the appellant/defendant trespassed into a portion of the said farm house and made some constructions therein. Thereafter, he filed a false and frivolous suit in 1996 for the grant of permanent injunction for dispossessing him by force which was assigned to a court and subsequently dismissed. Another suit was filed by the appellant in which the plaintiff/respondent was made a party was also dismissed. The counsel of the respondent submitted that under the garb of the suits so filed by the defendant, he had been extending his unauthorized occupation of 170 sq.yds of land in the said land. It was further argued that the suit premises is a built up property and the civil court has jurisdiction to try and entertain the suit and thus the suit was

maintainable before the court below. In support of his case, the respondent/plaintiff has relied upon the judgments in NB Singh (HUF) v. Perfexa Solutions Pvt.Ltd; 159 (2009) DLT 729wherein it was observed that since the plaintiff got the plan sanctioned from MCD for raising construction on so called agricultural land, obtained completion certificate from MCD and is paying house tax, the suit property cannot be called an agricultural land; the next judgment relied upon is in the case Raj Kishore Tyagi v. Radhey Shyam & Ors; 149 (2008) DLT 754 wherein the land was situated in extended abadi and was not a holding as defined under Section 3(11a) of the Delhi Land Reforms Act. While disposing of the appeal, it was observed that all the issues between the parties would be decided by civil court and the order of the court below holding that the suit for possession was maintainable before revenue officers and civil court had no jurisdiction to entertain the suit was set aside. The next judgment relied upon is in the case ofNilima Gupta v. Yogesh Saroha & Ors. 156(2009) DLT 129 wherein it was observed that once agricultural land loses its basic character of agricultural land and changes hands several times, and gets converted into a colony by dividing it into plots, disputes cannot be decided by revenue authorities and have to be decided by civil courts. On similar points, judgments in the case of Dwarka Prasad Agarwal (D) by LRs. V. Ramesh Chander Agarwal and Ors.; (2003) 6 SSC 220 and Anand Prakash & Ors. V. Ram Kala & Ors; 67 (2010) DLT 225, have also been relied upon.

9. To appreciate the rival contentions of the parties, I have gone through the evidence adduced and the material placed on record. It is explicitly evident with respect to Ex.PW1/4-khasra girwari that the lawful owner of the suit property in question is the plaintiff/ respondent. The appellant/defendant is clearly not the owner of the property in suit, by virtue of Ex.PW1/4. Furthermore, an FIR was also registered against one Dewan Singh who allegedly sold the land in question to the appellant/defendant claiming himself to be the attorney of the plaintiff/respondent. When the property in question does not belong to the appellant/defendant, he had no authority to be present on the said land and therefore is liable to face consequences.

10. The appellant/defendant in order to prove ownership over the said land, has stated that he purchased his share in the land from Dewan Singh of M/s Runmex Estates, who was the attorney of the plaintiff, for a consideration of Rs.1,20,000/-. The said documents, Ex.DW1/3 and Ex.DW1/4 do not corroborate the story of the appellant/defendant. Furthermore, transfer of an immovable property could be done by executing a registered document involving the amount of Rs.100/- or more, as provided under Section 54 of the Registration Act, which the appellant/defendant has failed to prove on record by means of any document titled in his favor to thereby show that he in fact is the owner of the property in question. Also, the plaintiff/respondent has clearly stated that she did not appoint M/s Runmex Estates (Dewan Singh) for any purpose whatsoever and for the forgery and cheating committed by Dewan Singh, she got lodged

an FIR No.232/1996, under Section 447/420 IPC. It is apparent from the record that Dewan Singh had no right, title or interest to sell the property of the respondent in favour of the appellant. The above said submissions and documents placed on record go on to show that the case of the appellant/defendant is a false and fabricated case. The appellant/defendant is clearly not the owner of the property and in fact trespassed the property of the plaintiff/respondent, thereby relinquishing any relief for him. Issue Nos.1 & 2 were decided in favour of the respondent/plaintiff and against the appellant/defendant and since remaining two issues were consequential in nature, same were also decided in favour of the plaintiff/respondent.

11. In view of the above discussion, this Court is of the considered opinion that the court below has rightly decided the issues in favour of the respondent/plaintiff and against the appellant/defendant and the impugned judgment is accordingly upheld. As a result, the appeal is dismissed being devoid of merit.

(P.S.TEJI) JUDGE OCTOBER 27, 2017 dd