IN THE COURT OF SH. SANDEEP GUPTA, CIVIL JUDGE, DELHI (WEST) 02 SUIT NO.616/06

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1 1 IN THE COURT OF SH. SANDEEP GUPTA, CIVIL JUDGE, DELHI (WEST) 02 SUIT NO.616/06 Unique Case ID No 02401C Sh. Aqueel Ur Rehman S/o Sh. Aziz Ur Rehman, R/o 31 B, Village Jasola, Lohari Farm, Jamia Nagar, Okhla, New Delhi....PLAINTIFFS VERSUS 1. Ms. Shahida Begum W/o Sh. Rahim Bux, R/o E 8, Jamia Staff Quarters, Jamia Nagar, New Delhi 2. CEO, Noida Development Authority Sector 6, Noida, U.P....DEFENDANTS Suit filed on 28/09/2004 Judgment Reserved on 10/05/2016 Date of decision 10/05/2016 SUIT FOR PERMANENT INJUNCTION Page 1/12

2 2 JUDGMENT: By this judgment I shall dispose off a suit for permanent injunction filed by the plaintiff against the defendants. Before adjudicating upon the issues framed in the present suit, I feel it necessary to dwell upon the plethora of pleadings in the present suit. Pleadings of the plaintiff : 1. The brief facts of the case as per the plaint are that the plaintiff purchased a plot of land measuring 400sq. Yds., Khasra No.31 B, Situated at Village Jasola, Teh Mehrauli, P.O., Badarpur, New Delhi from defendant no.1 Smt. Shahida Begum for a consideration of Rs.1,00,000/ and defendant no.1 also executed a GPA dt.05/01/1994 and receipt for Rs.1,00,000/ in favour of the plaintiff. It is further the case of the plaintiff that defendant no.1 also executed an affidavit thereby accepting that she has sold and delivered the vacant and physical possession of the suit property to the plaintiff and has received the consideration amount. It is further the case of the plaintiff that he constructed two rooms on the said plot of land and started living there in since 05/01/1994 without any interruption from any quarter. It is further stated by the plaintiff that defendant no.1 hatched a conspiracy to dispossess the plaintiff and started demanding more money from the plaintiff and threatened him to dispossess through some gunda elements and land mafias on 22/09/04. That the defendant no.1 brought some employees of defendant no.2 who threatened the plaintiff to demolish the suit property. Page 2/12

3 3 It is further the case of the plaintiff that the defendant no.1 in connivance with the employees of defendant no.2 are adamant to dispossess the plaintiff from the suit property and demolish his rooms and the plaintiff shall suffer irreparable loss and shall become destitute, if the defendants succeeds in their evil design. Thus the plaintiff has filed the present suit seeking permanent injunction in his favour and against the defendants thereby restraining them from dispossessing the plaintiff from the suit property and from demolishing the two rooms as shown in red colour in site plan. Pleadings of Defendant no.2 : 2. It is pertinent to mention here that the suit has already been dismissed qua defendant no.1 vide order dt.19/03/08 and was only proceeded further with respect to defendant no.2. Written statement has been filed by defendant no.2 wherein certain preliminary objections were taken like that the suit is liable to be dismissed as the plaintiff has not approached the court with clean hands and has concealed various vital facts from the Hon'ble Court. That the suit land falls under the Irrigation Department of Government of Uttar Pradesh. That the documents on which the plaintiff is relying are not registered one which is mandatory under the Registration Act and moreover the defendant no.1 never had any title to sell the said land and, therefore, the said sale is null and void. It is further contended that the plaintiff is trying to grab the Government land. Hence, the suit is liable to be dismissed with heavy costs. Page 3/12

4 4 In reply on merits, the defendant no.2 has denied all the averments made in the plaint as false and frivolous and it has been prayed that the suit be dismissed with costs. 3. Replication has been filed on behalf of plaintiff to the WS of defendant no.2 wherein the averments made in the WS were denied and those made in the plaint were reiterated and reaffirmed. Issues : 4. From the pleadings of the parties the following issues were framed on 05/12/2013 : 1. Whether there is no cause of action in favour of the plaintiff as he is not the owner of the suit property? OPD 2. Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? OPP 3. Relief. Plaintiff's evidence : 5. In support of his case, plaintiff got examined two witnesses i.e. himself as PW 1 and tendered his evidence by way of affidavit Ext. PW 1/A. He also reiterated the contents of the plaint on oath and relied upon certain documents which are as follows : The copy of GPA is Ext. PW 1/1. The copy of agreement to sell is Ext. PW 1/2. Ext. PW 1/3 is the copy of affidavit. The photocopy of Page 4/12

5 5 photographs are marked as Mark A. Copy of receipt is Ext. PW 1/6. There is no document on record as Ext. PW 1/5 i.e. site plan. The other witness got examined by plaintiff is Sh. Zubir Hasan as PW 2 who tendered his evidence by way of affidavit Ext. PW 2/A. On the other hand defendants got examined only one witness i.e. Sh. R.D. Sharma as DW 1 and who tendered his evidence by way of affidavit Ext. D 1. He also relied upon some documents which are as under : The authorisation letter in favour of DW 1 to depose in the matter is Ext. D2W1/A. The certified copy of Khasra Girdawari and Khatoni are Ext. D2W1/B and Ext. D2W1/C respectively. 6. I have given thoughtful consideration to the entire pleadings, evidence adduced, all the documents and to the entire record. Now, I shall give my issuewise findings which are as under : Issue no.2 shall be dealt with first. 7. ISSUE NO.2 Whether the plaintiff is entitled for the decree of permanent injunction as prayed for? OPP The onus to prove this issue was upon the plaintiff. To prove this issue it was incumbent upon the plaintiff to prove that he is legally entitled to restrain the defendants from dispossessing and demolishing the two rooms in the suit property. Firstly, it is noteworthy that the plaintiff has placed on record notarised documents in his favour in respect of property bearing No.31 B, Situated at Village Jasola, Tehesil Mehrauli, P.O., Badarpur, New Delhi and to controvert these title documents of the plaintiff, the defendant has placed Page 5/12

6 6 on record the copy of Khasra Girdawari and Khatauni which are Ext. D2W1/B and D2W1/C and both of these documents have not been challenged and disputed at all during the entire cross examination of DW 1. There had been a specific averment from the side of defendant no.2 that there is no such property having number 31 B and the plaintiff himself during his cross examination expressed his unawareness to the plea that whether there is any Khasra No.31 B or not which casts a dark cloud over the very existence of the property number as averred by the plaintiff. Though, it is a settled law that a party seeking injunction need not prove his ownership over the suit property, but in the present case, neither the plaintiff has been able to produce any document whatsoever to show his possession over the suit property nor the plaintiff has prayed for the declaration of any title or ownership over the suit property especially when defendant no.2 has specifically challenged the ownership of the plaintiff and contended that the defendant no.1 had no right or title to transfer the suit property to the plaintiff. Therefore, in view of the aforesaid discussion, the court deems it fit to quote here the observations made by the Hon'ble Supreme Court in Anathula Sudhakar vs P. Buchi Reddy (Dead) By Lrs & Ors on 25 March, 2008 (Appeal (civil) 6191 of 2001)wherein it was observed by the Hon'ble Supreme Court that if the title of the plaintiff is under clouds then the plaintiff has to file a suit for declaration along with injunctions and simpliciter suit for the injunction are not maintainable. The relevant para is quoted here as under: The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. Page 6/12

7 7 11.1) Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 11.2) Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. 12. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper... Page 7/12

8 To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under : (a) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter. (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession. (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title [either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction. Page 8/12

9 9 (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case... After going through the aforementioned principles and applying the same to the factual metric of the present suit, though the plaintiff has placed on record notarised title documents in his favour executed by defendant no.1 Shahida Begum but no previous chain of title documents have been produced by the plaintiff nor any revenue record or the record from the concerned Government authority has been produced that any such property bearing Khasra No.31 B, Situated at Village Jasola, Tehesil Mehrauli, P.O., Badarpur, New Delhi ever existed in the name of Ms. Shahida Begum. On the contrary as already discussed above, the copy of Khasra Girdawari and Khatauni exhibited in evidence of the defendant no.2 which have not been disputed either by plaintiff casts dark cloud upon the ownership of the plaintiff over the suit property. Therefore, keeping in view the aforementioned principles laid down in Anathula's case, when the title to the property is in dispute or under cloud the defendant Page 9/12

10 10 asserts title there to the plaintiff should have sued for declaration of title alongwith the consequential relief of injunction and the simplicitor suit for injunction is not maintainable. It may further be appreciated that in the present suit not only the title over the property has been disputed but even the possession over the suit property has not been specifically proved, keeping in view that the plaintiff failed to produce any single document showing his residence in the suit property. In fact the very existence of any such Khasra No.31 B, Situated at Village Jasola, Tehesil Mehrauli, P.O., Badarpur, New Delhi is in dispute for which no cogent evidence has been led by the plaintiff. As already discussed above, absence of production of previous chain of title documents has also proved fatal to the case of plaintiff. It is also settled principal of law that the injunction cannot be issued against the true owner and injunction cannot be issued in favour of a person who gained unlawful possession as against the owner [ Premji Ratansey Saha & Others V/s Union Of India and Others (1995 SCC 547) and Mahadeo Savlaram Shelke And Others V/s Pune Municipal Corporation And Another (1995 SCC 33). ] Applying the ratio of these judgments to the evidence adduced in the present suit, absence of proving clear title over the suit property, non production of the previous chain of documents and failure to controvert or rebutt the documents i.e. the Khasra Girdawari and Khatauni produced by DW 1, it appears that the plaintiff is claiming injunction against the true owner of the property. It is further pertinent to mention that there is no site plan on record to prove the exact existence of the suit property. Moving further, the cause of action according to the plaintiff has arisen when the defendants threatened to forcibly dispossess him. But there is no Page 10/12

11 11 such police complaint ever lodged by the plaintiff against the defendants. The plaintiff has also miserably failed to prove any such threats being given to him. In view of the aforementioned findings and glaring deficiencies in the evidence adduced by the plaintiff, this issue is accordingly decided against the plaintiff. 8. ISSUE NO.1 Whether there is no cause of action in favour of the plaintiff as he is not the owner of the suit property? OPD The onus to prove this issue was upon the defendants. According to the plaintiff, the cause of action had arisen firstly when he had purchased the suit property in the year 1994, however, as already discussed under the findings of issue no.2, the copies of Khasra Girdawari and Khatauni in favour of defendant no.2 have remained unchallenged and uncontroverted during the evidence and in the absence of the specific proof of ownership or even the possession over the suit property, it gets legally deduced that the present suit fails as far as the existence of cause of action is concerned. The issue of ownership in the present suit for permanent injunction assumes significance in the light of the ratio and principles enumerated in the aforesaid Anathula's Case. Accordingly, this issue is decided against the plaintiff. 9. ISSUE NO.3 RELIEF In view of the findings given on issues no.1 and 2, documents placed on record, pleadings of the parties and evidence led by the parties, the plaintiff has failed to prove his case on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiff is dismissed. Page 11/12

12 12 Decree sheet be prepared accordingly. File be consigned to record room after completing the necessary formalities. (SANDEEP GUPTA) Civil Judge, Delhi (West) 02 Announced in the open court on 10/05/2016. Page 12/12

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