Delhi District Court
Sh. Dil Bagh Singh vs Sh. Sukh Chand Jain on 23 December, 2024
IN THE COURT OF ADDITIONAL SENIOR CIVIL JUDGE,
CENTRAL DISTRICT, TIS HAZARI COURTS, DELHI
CS SCJ No. 593444/2016
CNR No. DLCT030000472005
In the matter of:-
1. Sh. Dilbagh Singh,
S/o Late Sh. Ram Singh,
R/o House No. 400,
Village Mitraon, Delhi.
2. Sh. Bhagwan Singh,
S/o Late Sh. Ram Singh,
R/o House No. 400,
Village Mitraon, Delhi. ...Plaintiffs
VERSUS
1. Sh. Sukh Chand Jain,
S/o of Sh. Pooran Chand Jain,
R/o C-2/19, Model Town,
Delhi-110009.
2. Sh. Amrit Chand Jain,
S/o of Sh. Pooran Chand Jain,
R/o C-2/19, Model Town,
Delhi-110009.
3. Sh. Akesh Chand Jain,
S/o of Sh. Pooran Chand Jain,
R/o C-2/19, Model Town,
Delhi-110009.
4. Smt. Anju Jain,
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S/o of Sh. Akesh Chand Jain,
R/o C-2/19, Model Town,
Delhi-110009.
5. Sh. Balbir Singh,
S/o Late Sh. Maya Singh,
R/o 24/2-A, Moti Nagar,
New Delhi-110015. ...Defendants
Date of Institution : 14.02.2005
Reserved for Judgment : 01.06.2024
Date of Decision : 23.12.2024
JUDGMENT
1. This is a suit for declaration, cancellation and
permanent injunction filed by the plaintiffs against the
defendants.
2. It is the case of the plaintiff that the plaintiffs are the
original residents of village Mitraon where they have been
holding ancestral lands and residential houses. That the plot
comprised in Khasra No. 388 (0-19) is one of the such land,
which was allotted to the late father of the plaintiffs namely Sh.
Ram Singh during the consolidation of holding operations that
took place in this village in the year 1972-73. That the plot was
allotted to the father of the plaintiffs after deducting double the
value of the agricultural land from his khata. That at the time of
its allotment, the father of the plaintiffs was handed over the
actual physical possession of the same by the Consolidation
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Officer at the spot. That after acquiring the said residential plot in
the above stated manner, the father of the plaintiffs raised
construction of a boundary wall around the same and started
using it for the purposes of tethering his milch cattles and other
agricultural related work. That the father of the plaintiffs died
sometime in the year 2000 and thereafter, the plaintiffs being his
sons became the exclusive owner in possession of the plot. That
the plaintiffs thus, have been using the suit property for the
purposes of gher and gitwar since the time of its allotment till
today without any interruption from any quarter whatsoever.
3. It is further averred that the defendants have no
right, title or interest in plot in dispute. That they are neither the
owner nor remained in its possession even for a split of a second.
That the plot in dispute has always been occupied by the
plaintiffs and predecessors-in-interest in the capacity of its
owner. That they are complete strangers to the suit property,
however, it was on 26.01.2005 that a flying squad visited the suit
property and started enquiring from the plaintiffs about the same.
That the police officials who visited the plot enquired from the
plaintiffs about their right, title and interest in respect of the suit
property upon which the plaintiffs disclosed to them that the
same was allotted to them during the consolidation operations in
1972-73 and as such they are the its owners. That the plaintiffs
further disclosed to the police officials that they have been in
possession of this plot since the time of its allotment in 1972-73
without any interruption. That the police officials after making
preliminary enquries and after satisfying themselves went back.
That the plaintiffs thereafter made enquiries and came to know
that the police had come at the instance of the defendant Nos. 1
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to 4, who had claimed that the plot had been purchased by them
and that they are its owners on the basis of a sale deed.
4. It is further averred that the plaintiffs thereafter,
immediately contacted the revenue officials and upon enquiries it
was revealed to the plaintiffs that the suit property is stated to
have been mutated in the names of the defendants No. 1 to 4.
That the halka patwari further disclosed to the plaintiff the case
number of the mutation file which was got inspected ,whereupon,
it transpired that two sale deeds were executed by the defendant
No.5 in favour of defendant Nos. 1 to 4 on 01.05.1985 and
15.05.1985 acting as the GPA of the father of the plaintiffs. That
the inspection of the file further revealed that on the basis of the
alleged sale deeds mutation orders have been sanctioned by the
Tehsildar in favour of defendant Nos. 1 to 4. That the plaintiffs
thereafter obtained certified copies of the whole of the mutation
file wherein copies of the two sale deeds being document No.
6028 in additional book No. 1, vol. No. 4678, at pages 64-66
dated 15.5.1985, in favour of defendant Nos. 1 and 2, and
another sale deed being document No. 5680, additional book No.
1, vol. No. 4678 at pages 166-68, dated 01.05.1985 were
annexed. That the perusal of the sale deeds revealed that a GPA
dated 03.05.1982 purported to have been executed by their late
father by virtue of which he is alleged to have authorized the
defendant No.5 to act for and on his behalf. That the father of the
plaintiffs never authorized the defendant No. 5 or anybody else to
act as his attorney. That the attorney dated 03.05.1982 is a false
frivolous and fabricated document. That the defendants in
collusion with each other have manufactured the same in order to
grab the suit property belonging to the plaintiffs. That the suit
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property has never been sold alienated or transferred by the
father of the plaintiffs at any point of time. That the possession of
the plot since the time of its allotment has always remained with
the plaintiffs and their father.
5. It is further averred that a perusal of the GPA alleged
to have been executed by their late father further revealed that the
same is not a registered document and is purported to be bearing
the thumb impression of the father of the plaintiffs. That the
alleged GPA dated 03.05.1982 was never executed by the father
of the plaintiffs. That the same does not bear his thumb
impression. That there was no occasion for the father of the
plaintiffs to either sell or transfer or alienate the said residential
plot. That the defendant No.5 is a complete stranger and the
plaintiffs or their father has never seen his face or met him. That
the GPA alleged to have been executed by Sh. Ram Singh, the
father of the plaintiffs, is a false, frivolous and fabricated
document, without conferring any right, title or authority upon
the defendant No.5 to act for and on behalf of Sh. Ram Singh.
6. It is further averred that the mutation file further
reveals that the sale deeds have been executed by defendant No.5
on behalf of the father of the plaintiffs on the basis of an
unregistered GPA. That no sale deed could have been executed or
registered on the basis of such an unregistered document. That
even otherwise, as the father of the plaintiffs did not appoint or
authorize the defendant No.5 as his attorney, he had no right in
law to execute any sale deed in respect of the suit property. That
the transfer effected by the defendant No.5 in favour of the
defendant Nos. 1 to 4 by execution of the sale deeds is without
authority and is a sham transaction not conferring any right, title
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or interest in their favour. That not only the documents of sale
deeds and GPA are void but the mutation order based on the
sham sale deeds is also bad in law. That as a matter of fact the
Naib Tehsildar did not follow the statutory provisions of law
prior to sanctioning the mutation order in favour of the
defendants No.1 to 4 on the basis of the sham sale deed. That he
did not issue any notice to the father of the plaintiffs, nor did he
issue any proclamation that was mandatory. That the mutation
orders having been passed behind the back of the plaintiffs and
their predecessor in interest was void ab initio and is liable to be
declared as such.
7. It is further averred that the plaintiffs apprehend that
on the basis of the false and frivolous documents, the defendants
may illegally and forcibly dispossess the plaintiffs from the suit
property. That as a matter of fact the defendants have no right,
title or interest to take forcible possession from the plaintiffs.
That it was on 09.02.2005 that the defendants No. 1 to 4
collectively came on the spot and demanded from the plaintiffs
that either they should vacate the suit property and handover the
possession of the same to them or otherwise they shall take
forcible possession of the suit property. That they have openly
threatened the plaintiffs that they shall forcibly take possession of
the suit property on the basis of the sham documents and such the
plaintiffs have been left with no alternative but to file the present
suit. Hence the present suit. The plaintiffs have prayed, inter alia,
for the followings reliefs:
“a) A decree of cancellation thereby canceling
the sale deeds being Document No. 6028 in
Additional Book No. 1 Vol. No. 4678 at Pages
64-66 dt. 15.5.85 in favour of Defendant nos. 1
and 2 and another sale deed being document no.
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5680 Additional Book No. 1 Vol. No. 4678 at
Pages 166-68 dt. 1.5.85 in favour of Defendant
nos. 3 and 4 may be passed;
b) A decree of declaration to thereby declaring
the GPA dt. 3.5.1982 purported to have been
executed by Shri Ram Singh in favour of the
defendant no.5 as forged, fabricated null and
void document may also be passed;
c) A decree of permanent injunction thereby
restraining the defendants, their agents,
employees etc. from illegally and forcibly
dispossessing the plaintiffs from the suit property
comprised in Khasra No. 388 (0-19) and more
clearly shown in red in the site plan annexed
herewith may please be passed.
d) Any other relief that this Hon’ble Court deem
fit and proper in the facts and circumstances of
the case be also granted. ”
8. Upon service of summons, the defendants entered
their appearance and filed their written statements. Defendants
No.1 to 4 have filed a joint written statement stating therein that
the plaintiffs have absolutely no locus standi to file the present
suit. That they have absolutely no right, title or interest of any
nature whatsoever either in the land as described in the suit or in
the land as shown in the plan accompanying the suit. That the
plaintiffs are not in possession of the alleged land as described in
the plaint or shown in the plan. That during his life time Sh. Ram
Singh initially entered into an agreement to sell regarding the
sale of land measuring 19 biswas situated in Khasra No. 388,
village Mitraon, for a sum of Rs. 20,000/- on 26.07.1980 in
favour of Sh. Sunder Singh and Sh. Balbir Singh. That in
pursuance of the said agreement, Sh. Ram Singh also received a
sum of Rs. 5,000/- from the then purchaser of the land vide
receipt dated 26.07.1980 which was duly registered with the Sub-
Registrar as document No. 10729, Addl. book No. 4, vol. No.
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627, page 156. That the said deal was not materialized and
thereafter, a supplementary agreement to sell dated 12.04.1982
was executed between Sh. Ram Singh and Sh. Sunder Singh and
Sh. Balbir Singh for a total sum of Rs. 50,000/- for the sale of the
aforesaid land. That in part performance of the contract to sell
Sh. Ram Singh handed over the actual physical possession of the
aforesaid land to Sh. Balbir Singh and Sh. Sunder Singh and
sworned an affidavit dated 12.04.1982 in this regard. That in
pursuance to the agreement of sale Sh. Ram Singh while
acknowledging the receipt of Rs. 5,000/- as sale consideration,
received the balance sale consideration of Rs. 45,000/- and the
receipt of the same was also registered with the Sub-Registrar
Office as document No. 5677, book No. 4, vol. No. 821, page
No. 186 dated 03.05.1982 from the then purchasers Sh. Sunder
Singh and Sh. Balbir Singh.
9. It is further averred that Sh. Ram Singh had also
obtained a Lal Dora certificate dated 25.07.1980 from that the
Revenue Assistant, Delhi to establish that the suit land falls in the
lal dora abadi of village Mitraun, Delhi. That this certificate was
handed over by Sh. Ram Singh to Sh. Sunder Singh and Sh.
Balbir Singh at the time of execution of agreement to sell etc.
That further in order to assure the purchasers of the land about
the complete transfer of the land in their favour in the event of
any mishappening, Sh. Ram Singh has also executed a Will dated
03.05.1982 in their favour which was duly registered with the
Sub-Registrar-II as document No. 2041 in book No. 3, vol. No.
229, page 106. That vide the aforesaid sale agreement, late Sh.
Ram Singh also undertook to execute the regular sale deed in
favour of the aforesaid persons or in favour of their nominee.
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That simultaneously, a general power of attorney dated
03.05.1982 was also executed by Sh. Ram Singh in favour of Sh.
Balbir Singh authorizing him to execute sale deed regarding the
aforesaid land. That the GPA was duly attested by Notary Public
Delhi. That now after death of Sh. Ram Singh the aforesaid
power of attorney also binds the plaintiffs who are the heirs of
late Sh. Ram Singh.
10. It is further averred that in pursuance of the powers
and authorities conferred by Sh. Ram Singh, his attorney Sh.
Balbir Singh entered into an agreement with the defendant for the
transfer of the suit land which was duly registered duly registered
in favour of Sh. Akesh Chand and Smt. Anju Jain for 75 sq. yds.
out of Khasra No. 388. That likewise a similar sale deed was
executed by Sh. Balbir Singh in favour of Sh. Sukh Chand Jain
and Sh. Amrit Jain and the defendants were put in actual physical
possession of the entire land of Khasra No. 388, village Mitraon,
Delhi. That since then the defendants are in actual physical
possession of the said land to the exclusion of all others including
the plaintiffs. That the defendants No. 1 to 4 also purchased
adjacent land of Khasra No. 387 measuring 19 biswas from Sh.
Sukhbir Singh vide registered sale deeds dated 18.05.1985 and
sale deed 01.05.1985 and the actual physical possession of this
land was also obtained from the vendors by the defendants. That
thereafter, the defendants No. 1 to 4 amalgamated the two lands
in one block and the intervening boundary along-with one small
room was demolished. That the entire the entire land measuring 1
bigha 18 biswas of two Khasra bearing No. 387 and 388 was
converted into one plot which still exists at site and there is
absolutely no demarcation now in between the two lands. That
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the defendants also planted trees of Safeda in the said land. That
some trees of Kikar and Neem already existed there. That at
present there are 7 Safeda trees, 3 Kikar trees, 4 Neem trees, and
1 Sehtut Tree exist at site.
11. It is further averred that after purchasing the land,
the defendants No. 1 to 4 applied for mutation of the said land in
the revenue records. That mutation number 1402 dated
28.03.1989 and mutation No. 1403/NT/NG/88-89 dated
28.03.1989 was duly sanctioned in favour of the defendants and
the entire land of Khasra No. 388 measuring 19 biswas was
mutated in favour of the defendants No. 1 to 4. That before
effecting mutation, not only a notice was issued in the name
predecessor of plaintiff i.e. Sh. Ram Singh by the Naib Tehsildar
concerned intimating him about the mutation proceedings but
also a public notice was also issued in the village by the Naib
Tehsildar before effecting the mutation. That Sh. Ram Singh was
duly served with the said notices but he chooses not to contest
the same personally because he very well knew the land is suit
stood transferred in favour of the defendants. That the Khasra
Girdawaries regarding the aforesaid land showing the actual
physical possession of the defendants No.1 to 4 over the land in
suit are in favour of the defendants. That the allegations of the
plaintiffs that they came in know about the two sale deeds in
favour of the defendants which were executed by Sh. Balbir
Singh acting as a GPA of Sh. Ram Singh, and that too consequent
upon GPA dated 03.05.1982 executed by Sh. Ram Singh only on
04.02.2005, when they obtained the certified copies thereof from
the Revenue Authorities, Najafgarh New Delhi are false and
baseless on the face of it. That the entries in the revenue record
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not only with regard to the title of the land in suit and but also
about the possession of the land proves the falsehood of the
allegations. That now after lapse of about 20 years it does not lie
in the mouth of the plaintiffs to allege that they were not aware of
the mutation order regarding the sale deeds in question.
12. It is further averred that the suit for cancellation and
declaration of the sale deeds in favour of the defendants and also
with regard to the cancellation and declaration of GPA in favour
of Sh. Balbir Singh are hopelessly barred by time. That late Sh.
Ram Singh was fully aware of the said documents since the date
of execution thereof. That these persons have also been obtaining
the copies of Khasra Girdwari and Khatauni from the Patwari
regarding their lands in village Mitraon where the name of the
replying defendants in place of late Sh. Ram Singh used to be
shown as Bhumidhars in possession of the said land. That the
plaintiffs are not in possession of any part of the suit land of
Khasra No. 388 measuring 19 biswas and as such the suit for
injunction without seeking the relief of possession is not
maintainable and the same is liable to be dismissed.
13. It is further averred that the present suit is nothing
but a fraud on the Court and the same is liable to be dismissed.
That the plaintiffs are guilty of suppressing the material
documents and facts from this Court. That as per the allegations
contained in para No. 2 of the plaint, the plaintiffs’ father is
alleged to have raised construction of a boundary wall on the
land of Khasra No. 388 measuring 19 biswas situated in the Lal
Dora Abadi of Mitraun, Delhi, but the plan filed by the plaintiffs
themselves depict no such wall at the spot. That they have filed a
plan in respect of land measuring 2044. sq. yds. which is totally
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in contrast to the allegations made in the plaint. That as per the
allegations in the plaint, the plaintiff claims boundary wall over
an area of 956 sq. yds, only. That they also suppressed that before
effecting mutations in favour of the defendants by Naib
Tehsildar, a notice was issued in the name of Sh. Ram Singh and
also another public proclamation was issued in the village by the
Revenue department inviting objections but their father did not
contest the same personally. That however, Sh. Ram Singh was
duly represented through his appointed attorney at the time of
passing of the mutation order dated 28.03.1989. That the
plaintiffs have falsely alleged that no such notice or public
proclamation was issued in the village by the Naib Tehsildar
concerned before passing mutation orders. That such a notice and
proclamation are part of the mutation file. That the plaintiffs have
also obtained certified copies of all such papers from the
mutation file, but they did not knowingly and deliberately filed
all such documents along-with the plaint.
14. It is further averred that defendant No.1 has received
information that the plaintiffs along-with their associates are
having evil eyes over the suit land and that they are planning to
cut the standing trees on the land. That in order to save the trees
and the land, the defendant No. 1 called the police and the police
had gone to the spot on 26.01.2005. That the police met the
plaintiff No.1 during the course of enquiry made by the police at
the spot, the people of the village including the plaintiff No. 1,
acknowledged the right, title and interest of defendants No. 1 to 4
over the suit land.
15. It is further averred that the defendant No. 1 to 4
have been in actual and physical possession of the suit land right
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from the year 1985 till date and the said possession has been
open and continuous to the knowledge of late Sh. Ram Singh.
That after his death, the plaintiffs herein have been seeing the
possession of the defendants. That no proceedings of eviction
against the defendants were filed by these persons. That in view
of this also, whatever right title or interest which late Sh. Ram
Singh was having over the suit land stood extinct long-long back
by operation of law.
16. It is further averred that the suit is nothing but an
after thought. That the orders of mutation and the name of the
recorded bhumidhar in respect of the suit land stood changed
from the name of Sh. Ram Singh in the name of the defendants
No.1 to 4 vide mutation orders dated 28.03.1989. That the said
orders of mutation or the subsequent entries made in the revenue
record in the name of the defendants were never challenged by
Sh. Ram Singh and after his death, the plaintiffs herein. The
defendants have prayed for dismissal of the present suit.
17. The defendant No.5 also filed his written statement,
stating therein that the plaintiffs have no cause of action to file
the present suit. That the suit land was validly transferred by the
defendant No.5 in favour of the defendants No. 1 to 4 on the
basis of the GPA executed by late Sh. Ram Singh in favour of the
defendant No.5. That the defendant No.5 was fully competent to
execute the sale deed on the basis of the GPA dated 03.05.1982
executed by late Sh. Ram Singh. That not only this the actual
physical possession of the suit land was handed over by late Sh.
Ram Singh at the spot to the defendant No.5 and this fact was
duly acknowledged by late Sh. Ram Singh in his affidavit dated
12.04.1982. That after execution of the aforesaid documents by
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late Shri Ram Singh, he was left with no right, title or interest in
the suit land and the said transfer fully binds his heirs and
successor-in-interest. That the suit is hopelessly barred by time as
the GPA on the basis of which the defendant No.5 executed the
sale deeds in favour of defendants No. 1 to 4 was executed on
03.05.1982 of which Sh. Ram Singh was fully aware. That not
only this Sh. Ram Singh was also aware of the execution of the
sale deeds in favour of defendants No. 1 to 4 by the defendant
No.5. That Sh. Ram Singh was also aware the mutation
proceedings before the Naib Tehsildar Najafgarh, Delhi which
were ordered to be effected from 28.30.1989. That throughout all
this period Sh. Ram Singh and after his death, the plaintiffs were
fully aware about all the the suit land and they never challenged
the competency of the defendant No.5 to execute the sale deed or
about the validity of the GPA.
18. It is further averred that during his life time Sh. Ram
Singh initially entered into an agreement to sell regarding the
sale of land measuring 19 biswas bearing hhasra No. 388, village
Mitraon for a sum of Rs. 20,000/- on the 26.07.1980 in favour of
Sh. Sunder Singh and the defendant No.5. That in pursuance of
the said agreement Sh. Ram Singh also received a sum of Rs.
5,000/- from these persons vide receipt dated 26.07.1980 which
was duly registered with the Sub-Registrar. That however, the
said deal was not materialized and Sh. Ram Singh asked for more
amount for the transfer of the aforesaid land. That accordingly, a
supplementary agreement to sell dated 12.04.1982 was executed
between Sh. Ram Singh and Sh. Sunder Singh and the defendant
No.5 for a total sum of Rs. 50,000/- for the sale of the land in
question. That in part performance of the contract to sell Sh. Ram
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Singh handed over the actual physical possession of the said land
to the defendant No.5 and Sh. Sunder Singh and also sworned an
affidavit dated 12.04.1982 in this regard. That in pursuance to the
agreement of sale, Sh. Ram Singh while acknowledging the
receipt of Rs. 5,000/- as sale consideration, received the balance
sale consideration of Rs. 45,000/- and the receipt of the same was
also registered in the Sub-Registrar Office on 03.05.1982. That
before this Sh. Ram Singh had obtained a Lal Dora Certificate
dated 25.07.1980 from the Revenue Assistant Delhi to establish
that the suit land falls in the lal dora, Abadi of village Mitraun,
Delhi. That this certificate was handed over by Sh. Ram Singh to
the defendant No.5 at the time of agreement to sell and same was
later on handed over to defendants No. 1 to 4 at the time of
execution of the sale deeds in their favour. That in order to assure
the defendants about the complete transfer of the land in the
event of any mishappening, Sh. Ram Singh has also executed a
Will dated 03.05.1982 in their favour which was duly registered
with the Sub-Registrar-II. That simultaneously, a GPA dated
03.05.1982 was also executed by Sh. Ram Singh in favour of the
defendant authorizing him to execute sale deed.
19. It is further averred that above said GPA was got
attested by Sh. Ram Singh from Notary Public Delhi. That now
after death of Sh. Ram Singh, the said GPA also binds the
plaintiffs. That in pursuance of the aforesaid powers and
authorities conferred by Sh. Ram Singh, the defendant No.5
transferred the entire suit land in favour of defendants No. 1 to 4
by executing two sale deeds. That likewise a similar sale deed
was executed by the defendant No.5 in favour of Sh. Sukh Chand
Jain and Sh. Amrit Jain vide deed dated 18.05.1985 and the
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defendants No. 1 to 4 were put in actual physical possession of
the entire land of Khasra No. 388 Village Mitraon, Delhi. That
since then, it is the defendants No. 1 to 4 who have been in actual
physical possession of the said land to the exclusion of all others.
That the defendants have constructed the boundary wall over the
land with a small room thereon, before the transfer of the land in
favour of the defendants No. 1 to 4 and this fact has been in the
knowledge of the plaintiffs and late Sh. Ram Singh. That the
defendants No. 1 to 4 had applied for mutating their names in the
record of the Revenue Department. That notice of such mutation
proceedings was issued in the name of Sh. Ram Singh. That a
proclamation in this behalf was also issued in the village before
effecting mutation.
20. It is further averred that the name of the recorded
bhumidhar in respect of the suit land stood changed from the
name of Sh. Ram Singh in the name of the defendants No. 1 to 4
vide mutation order dated 28.03.1989. That the said order of
mutation or the subsequent entries made in the revenue record in
the name of the defendants No. 1 to 4 were never challenged by
Sh. Ram Singh and after his death, plaintiff herein. That
therefore, the plaintiffs are estopped from challenging the GPA
dated 03.05.1982 and two sale deeds executed by the defendant
No.5 in favour of the defendants No. 1 to 4. That defendant No.5
became the owner of the suit land by virtue of documents viz,
agreement to sell, power of attorney, Will, receipts etc. for
consideration and the defendant No.5 along-with Sh. Sunder
Singh were put in actual physical possession of the suit land by
Sh. Ram Singh and Sh. Ram Singh divested himself all his rights,
power and authority to deal with the said land. It is prayed that
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the present suit may be dismissed with costs.
21. Vide order dated 22.05.2006, the followings issues
were framed:
“i. Whether plaintiff is entitled for a decree of cancellation as
prayed? OPPii. Whether plaintiff is entitled for a decree of declaration as
prayed? OPPiii. Whether plaintiff is entitled for a decree of permanent
injunction as prayed? OPPiv. Whether the plaintiff has no locus standi to file the present
suit as claimed? OPDv. Whether the suit is barred by law of limitation as claimed?
OPDvi. Whether the suit is not maintainable in its present form?
OPDvii. Relief”
22. In order to prove her case, the plaintiff No.1 Sh.
Dilbagh Singh examined himself as PW1 and tendered his
evidence by way of affidavit Ex. PW1/A. He deposed on the
lines of the averments made in the plaint. He relied upon site plan
i.e. Ex. PW1/1. PW1 was duly cross-examined by Ld. Counsel
for defendant No. 1 to 4. The cross-examination conducted by
Ld. Counsel for defendants No. 1 to 4 was adopted by Ld.
Counsel for defendant No.5 on behalf of defendant No.5.
23. The plaintiff examined Sh. Bimal Rai, Kanoongo,
SDM office, Najafgarh as PW2. He was summoned for produce
the record of mutation case titled as Ram Singh Vs Rakesh Jain,
bearing M/1402/NT/NGH/88-89, Goeshwara No. 2875,
pertaining to village Mitron, Delhi, decided on 28.03.1989, Ex.
PW2/1 (OSR). He also brought record of Khatoni-Paimaish for
the year 1984-85, Ex. PW2/2 (OSR). He also brought record of
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Khasra Girdwari for the year 1987-88, Ex. PW2/3 (OSR). PW2
was not cross-examined by Ld. Counsel for the defendants
despite opportunity being given in this regard.
24. The plaintiff examined Sh. Rajbir Singh as PW3. He
deposed that he was a resident of village Mitruan, Delhi where he
was having industrial agricultural land and residential houses. He
further deposed that the plaintiff belongs to his village and
consequently, he was very well known to him. He deposed that
he had seen the late father of the plaintiff namely, Sh. Ram Singh
who was allotted the residential plot during the consolidation
proceedings situated within the extended abadi deh of village. He
further deposed that the plot allotted to the plaintiff bearing
Khasra No. 388 measures around 01 bigha. He further deposed
that he had been seeing the plaintiff and their predecessor in
interest namely Sh. Ram Singh using the plot bearing Plot No.
388 since consolidation proceeding which took place in the
revenue estate in the year 1972-73. He deposed that the land is
presently enclosed by the boundary wall which is constructed
over plot No. 387 and 388 since the adjacent plot bearing No.
387 is also owned by the family of the plaintiff. He further
deposed that he has never seen anybody else in occupation of this
residential plot No. 388 at any point of time. He deposed that in
the year 2005, a dispute arose in the suit property bearing plot
No. 388 when police officials had started making enquiries about
the residential plot from the plaintiff and at that point of time, it
was apparently noticed by the plaintiff that the defendants on the
basis of some fabricated documents were claiming rights, title or
interest over the plot. He deposed that the father of the plaintiffs
never sold, alienated or transferred possession of the plot to any
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person during his lifetime since he had always seen him in actual
physical possession of the plot till the time of his death. He
further deposed that in the February, 2005, the defendants along
with some of their associates had come to the site and threatened
to take illegal and forcibly possession of the plot in his absence.
He deposed that since the plaintiff along with him and other
residents of the village resisted the threats and the defendants
could not illegally dispossessed the plaintiff from the suit
property. PW3 was duly cross-examined by Ld. Counsel for
defendants No. 1 to 4.
25. The plaintiffs examined Sh. Jagbir Singh as PW4
who deposed that he was original resident of village Mitraon and
was holding agricultural as well as residential house. He deposed
that the plaintiff’s were known to him as they also belong to the
same village and that he had known the father of the plaintiff
namely Sh. Ram Singh who had expired about 15 years ago. He
further deposed that his father was allotted residential plots
during consolidation proceedings in Khasra No. 388 measuring
about one bigha in the extended abadi deh of the village. He
deposed that he had seen the plaintiffs and their predecessor in
interest in actual physical possession of the plot since the
inception. He further deposed that the plot at present was
bounded by a boundary wall on two sides and was being used by
the plaintiff as a Gher and Gitwar for tethering the cattles and for
keeping bitodas etc. He deposed that the adjacent plot bearing
plot No.387 is owned by the family of the plaintiffs and both
these plots are enclosed by a common boundary wall and there is
no intervening wall in between the two plots. He further deposed
that he had never seen any person except the plaintiffs and their
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father in possession of the plot in any capacity whatsoever. He
deposed that a dispute had arisen over the suit property in the
year 2005 when some police officials came to the plot and had
made enquiries from the plaintiffs. He further deposed that the
defendants and some of their associates visited the plot of the
plaintiffs and threatened to take illegal and forcible possession of
the plot in his presence when the plaintiff along-with neighbours
had successfully resisted the threats of the defendants. He also
deposed that the defendant and his associates at the time of
giving threats to take illegal possession of the suit property had
also claimed that they had purchased the property from the late
father of the plaintiffs which claim was absolutely false. He
deposed that father of the plaintiffs or the plaintiffs themselves
had never sold or transferred the plot bearing No. 388 to the
defendants or anybody else. PW4 was duly cross-examined by
by Ld. Counsel for defendants No. 1 to 4.
26. After examination of PW4, the plaintiffs’ evidence
was closed on 17.09.2016 and the case was fixed for defendants
evidence.
27. The defendants No.1 to 4 examined Sh. M.S. Jakhar,
Kanoongo, SDM Office, Najafgarh as DW1. He was a
summoned witness who was summoned to bring original record
pertaining to Khasra Girdawari for the year 1989-90 to 2012-13.
he brought the certified copies of the said record Ex. DW1/1
(colly.). DW1 witness was cross-examined by Ld. Counsel for
plaintiffs.
28. The defendants No.1 to 4 examined defendant No.2
Sh. Amrit Jain as DW2. He deposed on the lines of averments
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made in the written statement filed by defendants No. 1 to 4 and
relied upon the following documents:
(i) Sale Deeds dated 01.05.1985 and 18.05.1985 Ex.
DW2/1 to DW2/2,
(ii) General power of attorney dated 03.05.1982, receipt
dated 26.07.1980, agreement to sell dated 12.04.1982,
affidavit dated 30.05.1982, receipt dated 03.05.1982 and
Will dated 03.05.1982, Ex. DW2/3 to Ex. DW2/8,
(iii) Original la dora certificate Ex. DW2/9,
(iv) Certified copies of the mutation files Ex. DW2/10 and
Ex.DW2/11,
(v) Site plan Ex. DW2/20,
(vi) Akshijra of the suit property Ex. DW2/21,
(vii) Certified copy of the statement of Sh. Dilbagh Singh
Ex. DW2/22.
DW2 was duly cross-examined by Ld. Counsel for
plaintiffs.
29. The defendants No.1 to 4 examined Sh. Manish,
Halka Patwari, Tehsil Najafgarh, as DW3. He was a summoned
witness who was summoned to produce the original record
pertaining to original Khatoni Pehmaish of the village Mitraon,
Delhi. The witness produced the original record and copy of the
same was already exhibited as Ex. DW 2/12 and the witness
deposed the same to be true and correct. DW3 was duly cross-
examined by Ld. Counsel for the plaintiffs.
30. The defendants No.1 to 4 examined retired SI
Chandu Lal as DW4. DW4 deposed that in January 2005, he was
posted as ASI in police station Najafgarh Delhi. He deposed a
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telephone call was received in police station that in village
Mitraon, Delhi near ata mill and bijli ghar some person were
cutting trees and there was apprehension of breach of peace. He
deposed that thereafter, he went to the spot and at the spot, PCR
van was already there and people of the village were also present.
He further deposed that one axe, one rope and hacksaw were
taken in possession and enquiry was made from the people. He
deposed that on enquiry, he was told that the plot belongs to Sh.
Sukh Chand Jain. He deposed that he had talked to the
complainant and he told that he would come on the next day. He
further deposed Sukh Chand Jain told him that one Sh. Ramesh
Chand and Sh. Dilbagh Singh might be involved in the cutting of
trees. He further deposed that he recorded the statement of
Dilbagh Singh and Ramesh Chand. The witness was shown
statement of Sh Dilbagh Singh purportedly recorded by him the
court file in respect of case titled as ‘Ramesh Chand Vs Sukh
Chand Jain & Ors.‘ decided on 13.11.2014 by the Court of Ms
Namrita Agarwal which has been brought by the Ahlmad of the
Court of Ms. Pinki, ADJ, Dwarka, Delhi. The witness, after
perusing the same, deposed that it was the same statement which
was recorded by him during the enquiry. The aforesaid statement
was exhibited as Ex DW4/E. He deposed that thereafter, he
closed the enquiry and certified copy of the enquiry report
including DD entry, statements of witnesses and closure report
were exhibited as Ex. DW4/A to Ex. DW4/F. He deposed that Sh.
Dilbagh Singh signed his statement in his presence. DW4 was
cross-examined by Ld. Counsel for the plaintiffs.
31. The defendants No.1 to 4 examined Sh. Prabhunath
Singh, Kanoongo, Record Room Revenue, SBI Building, first
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floor, Tis Hazari Courts as DW5. He was a summoned witness
who brought the original scheme file relating to village Mitraun,
Delhi Goshwara No. 282. He deposed that certified copy of the
proceedings dated 06.10.1982 consisting of 06 pages were issued
from their office and same was issued as per original record and
the record was exhibited as Ex.DW5/A. The witness was cross-
examined by Ld. Counsel for the plaintiffs.
32. The defendants No.1 to 4 examined Sh. B.N.
Srivastava as DW5. The witness was inadvertently given the
serial number as DW5 since Sh. Prabhunath Singh was examined
as DW5. The witness tendered his evidence by way of affidavit
Ex. DW5/A and he relied upon the following documents:
(i) Report dated 31.07.2017 Ex. DW5/1,
(ii) Photographs Ex. DW5/2 to Ex. DW5/29,
(ii) CDR Ex. DW5/30.
DW 5 deposed that he was working as handwriting and
fingerprints expert for over 45 years and he had received training
in this science from and expert of Delhi i.e. late Sh. M.K.Mehta.
He deposed that he had also done one year certificate course in
Forensic Science from University of Delhi, in year 1970. He
deposed that he had given opinion in around 4000 cases in
different Courts of law in the states of U.P., Haryana, Punjab,
Rajasthan and Delhi. He further deposed that in the present case,
he had examined the thumb impressions of Sh. Ram Singh on
Regd. receipt dated 26.07.1980 Ex. PW2/3, supplementary
agreement to sell Ex. PW2/4, affidavit Ex. PW2/5, receipt Ex.
PW2/6, back of receipt, Will Ex. PW2/7, G.P.A Ex. PW2/8 and
one thumb impression of Sh. Ram Singh on consolidation file of
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Village on Mitron, Goshwara No. 282. He further deposed that
these thumb impressions have been marked as Q-1 to Q-25 and
‘A’ on the photographic enlargements. He further deposed that in
his opinion the all clear thumb impressions and marked as Q1 to
Q-25 and ‘A’ have been affixed by one and the same person. He
deposed that the reasons for his opinion were given in report Ex.
DW5/1. He further deposed that he took the photographs of the
above mentioned documents with Canon Digital Camera and
copied the files on CDR with the help of properly maintained
computer and the contents of CDR were the copy of the files
taken by way of digital Camera Ex.DW5/30. He further deposed
that he got photographs prepared from a colour lab under his
supervision. He deposed that the computer output containing the
information mentioned in the affidavit was produced by his
computer during the period over which the computer was used by
him and he was having lawful control over the use of computer
and the information contained in the electronic record reproduced
from the information fed into the computer in the ordinary course
of its operations and nothing material has been tempered with.
The witness was duly cross-examined by Ld. Counsel for
plaintiffs.
33. The defendants No.1 to 4 examined Sh. Amit Mittal,
as DW6. He was a summoned witness who brought trial Court
file titled as Ramesh Chand Vs Sukh Chand Jain, decided on
13.01.2014. The witness was not cross-examined by Ld. Counsel
for the plaintiffs despite opportunity being given in this regard.
34. The defendants No.1 to 4 examined Sh. Manoj
Kumar as DW7. He has brought summoned record mutation file
No. M44 Tehsildar Najafgarh, 2001-02, decided on 11.10.2001
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regarding virasat of Ram Singh S/o Giani, Village Mitraon, Delhi
Ex. DW7/A (colly.). He deposed that the certified copy of the
record was as per the original record and was issued from their
office. He also brought original Khatoni 2012-13 of village
Mitraon, Delhi regarding Khasra No. 80/19 (4-16), 80/20(4-16)
325 (0-18). He deposed that the certified copy of the Khatoni Ex.
DW7/B tallied with the original record and was issued by Sh.
Manish, Patwari on 02.04.2018. He also brought the Khasra
Girwdawari of Khasra No. 2016-17 and deposed that certified
copy on record Ex. DW7/C tallied with the original and was
issued by Sh. Manish, Patwari on 02.04.2018. He was cross-
examined by Ld. Counsel for the plaintiffs.
35. The plaintiff No.1 i.e. Sh. Dilbagh Singh was
recalled for cross-examination at the instance of defendants No. 1
to 4 on 16.01.2019. Thereafter, defendants’ evidence was closed.
36. Thereafter, the plaintiffs led rebuttal evidence. The
plaintiffs examined Sh. Dilbagh Singh in rebuttal evidence and
tendered his evidence by way of affidavit Ex. PW1/B. He
deposed that after the death of his father, he had filed an
application for mutation the holding left behind by him at the
time of his death. He deposed that at the time of filing of the said
mutation application, he was neither in possession of any resident
plot No.325 nor was aware about its allotment to late Sh. Ram
Singh in as much as prior to sanction of mutation, he had not
obtained any copy of the fard/khatoni. He deposed that since he
was not aware about the details of the holding recorded in the
name of his late father, as such, he was advised to file an
application for mutation without mention the particulars of the
land held by him. He deposed that at no point of time, he came to
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know about the allotment of residential plot No.325, situated in
extended abadi of Village Mitraon, prior to the application filed
by the defendant and after which he made enquiries, whereupon
it was transpired that the said residential plot bearing plot No.325
was, in fact, in possession of a number of residents of the village
who were in its possession since even prior to the consolidation
proceedings. He further deposed that even at the time of
sanctioning the mutation order, neither Halqa Patwari, nor the
Tehsildar disclosed to him about the allotment of residential plot
No.325. He further deposed that as far as the plaintiffs were
concerned, since the said plot No.325 was neither in possession
of the defendants or the deceased Sh. Ram Singh, as such, they
had no concern whatsoever with the same. The witness was duly
cross-examined by Ld. Counsel for defendants No. 1 to 4.
37. Thereafter, the evidence was closed and the case was
fixed for final arguments.
38. I heard the arguments advanced and perused the
record. Issue wise findings are as follows.
Issue No. I Whether plaintiff is entitled for a decree of
cancellation as prayed? OPP
&
Issue No. II Whether plaintiff is entitled for a decree of
declaration as prayed? OPP
&
Issue No. IV Whether the plaintiff has no locus standi to file the
present suit as claimed? OPD
&
CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 26 of 39
Issue No. V Whether the suit is barred by law of limitation as
claimed? OPD
&
Issue No. VI Whether the suit is not maintainable in its present
form? OPD
39. All these issues are taken together as they are inter-
related and demand a common finding. The burden to prove
issues No. i and ii was on the plaintiffs, whereas, the burden to
prove issues No. iv, v and vi was on the defendants. The case of
the plaintiffs is that their father was owner of the plot No.388
since its allotment to him during the consolidation proceedings in
1972-73. It is pleaded that since its allotment, the plaintiffs’
father and after his death, the plaintiffs were in continuous
possession of the plot. The cause of action for filing the present
suit has been stated to be that on 26.01.2005, the police had come
to the land in question at the instance of defendants No. to 4 and
started making inquiries as the defendants were claiming to be
owners of the land in question. It is the further case of the
plaintiffs that thereafter, they went to the revenue officials and
inspected the records and they found about the GPA dated
03.05.1982 Ex. DW2/3 executed by the father of the plaintiffs’
namely, Sh. Ram Singh in favour of defendant No.5 and the sale
deeds dated 01.05.1985 Ex. DW2/2 and 18.05.1985 Ex. DW2/1
executed by defendant No.5 in favour of defendants No.1 to 4. It
is pertinent to mention that both the sale deeds Ex. DW2/1 and
Ex. DW2/2 are registered documents. These sale deeds executed
in the year 1985 but the challenge to these document was made
for the first time in the year 2005 i.e., when the present suit was
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filed. The suit is absolutely silent as to what happened between
1972-73 and 2005. It is settled law that registration of a sale deed
itself amounts to notice. Reliance in this placed on Azhar Sultana
v. B. Rajamani (2009) 17 SCC 27 and Amar Nath Vs. Gian
Chand & Anr., Civil Appeal No. 5797/2009, dated 28.01.2022 .
Hence, when the sale deeds Ex. DW2/1 and Ex. DW2/2 were
registered, the limitation to challenge these documents started
running from the date of their execution (since the date of
registration relates back to the date of execution). The cause of
action had arisen during the life time of the Sh. Ram Singh and
therefore, now the plaintiffs’ action seeking challenge to the
documents Ex. DW2/1 and Ex. DW2/2 was hopelessly barred by
time.
40. The plaintiffs have even failed to establish that the
alleged transaction of sale of the plot in question was not within
their knowledge. The PW1 was specifically asked during his
cross-examination why they did not seek mutation of the plot No.
388 after the death of Sh. Ram Singh to which he deposed that
they did not feel it necessary as they were in possession.
However, interestingly, the plaintiffs had sought mutation of the
‘Virasat’ of Sh. Ram Singh in respect of plot No. 80/19, 80/20 and
325 vide application dated 18.09.2001 but no mutation of the plot
No. 388 was sought by the plaintiffs. The relevant record of the
mutation in respect of plot No. 80/19, 80/20 and 325 i.e. Ex.
DW7/A, Ex. DW7/B and Ex. DW7/C was proved on record by
DW7. PW1 during his cross-examination did not dispute the
mutation of the plot No. 80/19, 80/20 and 325. He also admitted
that the patwari has mentioned in the Khatoni that there was no
other Khata of Sh. Ram Singh in the village. After taking into
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consideration all these facts, it is an irresistible conclusion that
the plaintiffs did not seek the mutation of the land in question
because it was already sold by Sh. Ram Singh and the plaintiffs
were quite aware about it. Even if it is to be assumed that the
plaintiffs were not aware about the sale of the land in question
immediately after the death of Sh. Ram Singh, but after these
mutation proceedings in the year 2001 in respect of plot No.
80/19, 80/20 and 325, their plea that they became aware about
the sale of the plot in question only on 26.01.2005 is liable to be
rejected. Once it is held that they were aware in the year 2001
about the plot in question being no more available in revenue
record as belonging to Sh. Ram Singh, their suit is 2005 to seek
declaration and cancellation of documents Ex. DW2/1, Ex.
DW2/2 and Ex. DW2/3 was clearly barred since as per article 58
of the Schedule to the Limitation Act, 1963, the limitation period
is only three years when right to sue first accrues.
41. The plaintiffs have also failed to establish that the
documents Ex. DW2/3 i.e. GPA executed by Sh. Ram Singh in
favour of defendant No.5 and consequently, the sale deed
executed i.e. Ex. DW2/1 and Ex. DW2/2 were sham and void
documents. It is the case of the plaintiffs that their predecessor-
in-interest Sh. Ram Singh did not execute any GPA in favour of
defendant No.5. However, no evidence whatsoever has been
produced to prove these facts. The case of the plaintiffs has been
confined to the allegations that no documents for sale were
executed by Sh. Ram Singh and they were no having knowledge
about the said documents. The plaintiffs did not produce any
documents containing admitted thumb impressions of Sh. Ram
Singh before the Court nor they lead any evidence to even prima
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facie establish that the GPA Ex. DW2/3, receipt of Rs. 5,000/-
Ex. DW2/4, agreement to sell Ex. DW2/5, affidavit Ex. DW2/6,
receipt of Rs. 45,000/- Ex. DW2/7 and registered Will Ex.
DW2/8 did not bear the thumb impressions of late Sh. Ram
Singh. The plaintiffs have also failed to bring on record any
circumstance surrounding the execution of these documents
creating their execution doubtful. The evidence in this regard is
absolutely wanting. It is trite law that registered document carries
presumption of genuineness and onus to prove otherwise is on
the person who challenges it. Reliance in this regard Manik
Majumder & Ors. Vs. Dipak Kumar Saha (Dead) through Lrs. &
Ors., Civil Appeal No. 2965 OF 2022 dated 13.01.2023. It was
held by Hon’ble Supreme Court in Prem Singh & Ors. Vs. Birbal
& Ors., 2006 Supp. 1 SCR 692:
There is a presumption that a registered document is validly
executed. A registered document, therefore, prima facie would
be valid in law. The onus of proof, thus, wou Id be on a person
who leads evidence to rebut the presumption. In the instant case,
Respondent No. I has not been able to rebut the said
presumption.
Thus, there was a presumption of correctness in
favour of Ex. DW2/1 and Ex. DW2/2 as they are registered
documents. The onus was on the plaintiffs to prove that the
documents were invalid, sham and void documents. As already
observed, the plaintiffs have not even tried to lead any evidence
in this regard except oral deposition of PW1. Even PW1, except
bare denials, could not bring forth any circumstance which would
cast doubt on the genuineness of these documents.
42. It is urged on behalf of the plaintiffs that the GPA
Ex. DW2/3 is not a registered document and hence, the execution
of sale deeds Ex. DW2/1 and Ex. DW2/2 on the basis of GPA Ex.
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DW2/3 was not valid in the eyes of law. It is relevant to note that
power of attorney is not a document which creates an interest in
the immovable property and hence, it is not compulsorily
required to be registered under section 17 of Registration Act; its
registration is optional and a person on the strength of an
unregistered power of attorney can validly execute an instrument
of sale. In this regard, it is relevant to advert to the observations
made by Hon’ble Supreme Court in Manik Majumder (supra),
which read as under:
“18. …………………Section 17 of the Registration Act speaks
about documents of which registration is compulsory, while
Section 18 deals with documents of which registration is
optional. Clause (f) of Section 18 states that all other documents
not required by Section 17 to be registered, may be registered at
the option of the parties. In other words, the documents which
are compulsorily registrable are listed under Section 17 and
such list is exhaustive. The documents, registration of which is
optional, are specified in clauses (a) to (e) of Section 18 but this
list is not exhaustive.Under clause (f) of Section 18 “all other
documents” which do not require registration under Section 17
are also optionally registrable such as the power of attorney,
document relating to adoption etc.. A power of attorney is not a
compulsorily registrable document when it is duly notarized. It
carries the presumption of being valid in view of Section 85 of
Evidence Act. Since, a power of attorney does not come within
the ambit of Section 17 or clause (a) to (e) of Section 18,
registration of a power of attorney is optional. An attorney
holder may execute a deed of conveyance in exercise of the
power granted under the power of attorney and convey title on
behalf of the grantor or principal, provided he has been
specifically given power to sell the property of the principal.
The nature and scope of power of attorney has been explained
by this Court speaking through R.V. Raveendran, J. in Suraj
Lamp and Industries vs. State of Haryana (2012) 1 SCC 656.
The relevant paragraphs of the judgment reads as under:
“20. A power of attorney is not an instrument of
transfer in regard to any right, title or interest in an
immovable property. The power of attorney is
creation of an agency whereby the grantor
authorises the grantee to do the acts specified
therein, on behalf of grantor, which when executed
will be binding on the grantor as if done by him
(see Section 1-A and Section 2 of the Powers of
Attorney Act, 1882). It is revocable or terminable
at any time unless it is made irrevocable in a
manner known to law. Even an irrevocable attorneyCS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 31 of 39
does not have the effect of transferring title to the
grantee.
21. In State of Rajasthan v. Basant Nahata [(2005)
12 SCC 77] this Court held: (SCC pp. 90 & 101,
paras 13 & 52)
’13. A grant of power of attorney is
essentially governed by Chapter X of
the Contract Act. By reason of a deed
of power of attorney, an agent is
formally appointed to act for the
principal in one transaction or a series
of transactions or to manage the
affairs of the principal generally
conferring necessary authority upon
another person. A deed of power of
attorney is executed by the principal
in favour of the agent. The agent
derives a right to use his name and all
acts, deeds and things done by him
and subject to the limitations
contained in the said deed, the same
shall be read as if done by the donor.
A power of attorney is, as is well
known, a document of convenience.
***
52. Execution of a power of attorney
in terms of the provisions of the
Contract Act as also the Powers of
Attorney Act is valid. A power of
attorney, we have noticed
hereinbefore, is executed by the donor
so as to enable the donee to act on his
behalf. Except in cases where power
of attorney is coupled with interest, it
is revocable. The donee in exercise of
his power under such power of
attorney only acts in place of the
donor subject of course to the powers
granted to him by reason thereof. He
cannot use the power of attorney for
his own benefit. He acts in a fiduciary
capacity. Any act of infidelity or
breach of trust is a matter between the
donor and the donee.’
An attorney-holder may however execute a deed of
conveyance in exercise of the power granted under
the power of attorney and convey title on behalf of
the grantor.”
43. Further, power of attorney also carries presumption
of genuineness under section 85 of Indian Evidence Act, 1872.
CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 32 of 39
Section 85 of Evidence Act reads as under:
85. Presumption as to powers-of-attorney.– The Court shall
presume that every document purporting to be a power-of
attorney, and to have been executed before, and authenticated
by, a Notary Public, or any Court, Judge, Magistrate, [Indian]
Consul or Vice-Consul, or representative of the [Central
Government], was so executed and authenticated.
In the present case, the GPA Ex. DW2/3 is a
notarized document and hence, carries with it presumption of
genuineness under section 85 of Evidence Act. It was for the
plaintiffs to dislodge the presumption and prove that the said
GPA was never executed by late Sh. Ram Singh. However, the
plaintiffs have miserably failed to discharge their burden. In fact,
no evidence at all was adduced by the plaintiffs in this regard.
44. Further, after execution of the sale deeds Ex. DW2/1
and Ex. DW2/2, the land in question was also got mutated in
their favour vide mutation dated 28.03.1989. The defendants No.
1 to 4 have proved the relevant record pertaining to the mutation
record kept with revenue authorities Ex. DW2/10 and Ex.
DW2/11 in this regard. The mutation is not disputed by the
plaintiffs. However, it is their case that no notice of the
proceedings was served upon late Sh. Ram Singh. It is pertinent
to mention that the mutation in favour of the defendants No.1 to
4 has not been challenged by the plaintiffs before the competent
revenue Court. Without challenging the mutation in favour of the
defendants No.1 to 4 before the competent revenue authorities,
the plaintiffs cannot contend before this Court that the same was
bad since no notice was issued to late Sh. Ram Singh. The
section 185 of Delhi Land Reforms Act, 1954 bars the
jurisdiction of a civil Court in this regard. Assuming that the
plaintiffs can somehow present a challenge to the said mutation,
CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 33 of 39
even then, the contention of the plaintiffs is liable to be rejected.
The defendants have produced the entire record of the mutation
proceedings and the record itself makes it clear that notices Ex.
DW2/P-2, Ex. DW2/P-3 and Ex. DW2/P-4 were issued to late
Sh. Ram Singh. Thus, the stand of the plaintiffs that no notices
were issued to late Sh. Ram Singh has been contradicted. The
plaintiffs have sought to take a stand that no thumb impression of
late Sh Ram Singh exists on these notices. However, in the
considered opinion of this Court, this plea cannot be entertained
by this Court as the same should have taken by the plaintiffs
before the competent revenue authorities while presenting a
challenge to the mutation in favour of the defendants No. 1 to 4.
Moreover, the mutation was granted by competent revenue
authority in favour of the defendants No.1 to 4, without it being
challenged in accordance with law, the same is to be presumed to
be correct. No circumstance of fraud in according the said
mutation has been brought on record.
45. On the other hand, the defendants No. 1 to 4 have
duly proved the documents sale deeds Ex DW2/1 and Ex.
DW2/2, GPA Ex. DW2/3, receipt of Rs. 5,000/- Ex. DW2/4,
agreement to sell Ex. DW2/5, affidavit Ex. DW2/6, receipt of Rs.
45,000/- Ex. DW2/7 and registered Will Ex. DW2/8. The
plaintiffs have not been able to disprove these documents. Except
oral evidence of PW1 asserting only self serving statements,
nothing has been proved on record which create suspicion on
execution of these documents. The defendants No. 1 to 4 have
taken the defence that late Sh. Ram Singh has also obtained ‘ Lal
Dora’ certificate dated 25.07.1980 in respect of the land in
question which he has handed over at the time of execution of the
CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 34 of 39
above said documents to Sh. Balbir Singh and Sh. Sunder Singh.
The defendants No.1 to 4 have brought on record the said
certificate Ex. DW2/9 which lends credibility to their defence.
46. It is the case of the plaintiffs that their father
late Sh. Ram Singh and after him, they are in continuous
possession of the land in question. To prove possession of the
land in dispute, the plaintiffs have relied upon the Khasra
Girdawari for the year 1987-88 Ex. PW2/3 and the testimonies of
PW3 and PW4. Except the entry for the year 1987-88, all the
subsequent entries are in the name of defendants No.1 to 4. The
defendants No. 1 to 4 have brought on record the entries starting
from 1989 till 2012 by way of Khasra Girdawaries Ex. DW1/1
(colly) and Ex. DW2/12 to Ex. DW2/19. The Ld. Counsel for
defendants No.1 to 4 have contended that the entry vide Ex.
PW2/3 is a stray entry and does not give rise to presumption of
possession in favour of the plaintiffs. In Sir Bhimeshwara Swami
Varu Temple Vs. Pedapudi Krishna Murthi & Ors., AIR 1973 SC
1299, Hon’ble Supreme Court has held that the entries in the
revenue records for large number of years in respect of
ownership and possession of land with certain persons does not
stand rebutted by mere stray entries in favour of others when the
evidence is of uncertain character and is inadequate. In the
present case, the sale deeds Ex. DW2/1 and Ex. DW2/2, GPA Ex.
DW2/3, the mutation accorded vide mutation dated 28.03.1989
and the Khasra Girdawari Ex. DW1/1 (colly) and Ex. DW2/12 to
Ex. DW2/19 commencing from 1989-2012, do not leave any
scope of presumption in favour of the plaintiffs through a stray
enrty vide Ex. PW2/3 and hence, the same is liable to be ignored.
Further, the testimonies of PW3 and PW4 only cannot be
CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 35 of 39
considered as a proof of possession of the plaintiffs since the
documentary evidences suggest otherwise.
47. The plaintiffs have relied upon the site plan Ex.
PW1/1 and it is claimed that it depicts the land in question. As
per the site plan, the total area of the land has been shown to be
18,224 sq. ft. or 2024 sq. yds. It is interesting to note that the
defendants No.1 to 4 have pleaded in their written statement that
they had also purchased the adjoining plot bearing Khasra No.
387 measuring 19 biswa from Sh. Sukhbir Singh vide sale deed
dated 18.05.1985 and after purchasing both the plots i..e 387 and
388, they had amalgamated them into one single block. In
response, the plaintiffs have stated in their replication that these
two plots were enjoyed as single entity by the plaintiffs and their
uncles and the same were in their possession only. However, this
averment in the replication is contradictory to the specific
averments in the plaint in respect to the identification of the plot
No. 388. Further, during the proceedings of the present case, the
defendants No. 1 to 4 led the evidence by bringing on record the
judgment dated 15.05.2019 Ex. DX passed by Ld. ADJ-01, South
West, Delhi vide which the dismissal of the suit filed by Sh.
Ramesh Chander (who has been stated to be in possession of plot
No. 387 by the plaintiffs) and others in respect of plot No. 387
seeking declaration, cancellation and permanent injunction was
upheld. There is categorical finding in the said judgment by Ld.
ADJ to the effect that Sh. Ram Chander and others who had filed
the suit had failed to prove their possession on the said plot and
the defendants No.1 to 4 were held to be in the possession of plot
No. 387. In fact, the plot No. 387 was thereafter sold by the
defendants No. 1 to 4 vide registered sale deed dated 04.10.2019.
CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 36 of 39
The copy of the sale deed is on record. If the land shown in the
site plan Ex. PW1/1 was comprising of plot No. 387 and 388 and
was in possession of the plaintiffs then how the same was held to
be in possession of defendants No. 1 to 4 and how the same was
sold by them, has been left unanswered. This circumstance also
disproves the site plan Ex. PW1/1. Taking all these circumstances
into consideration, there is no hesitation in holding that the claim
of the plaintiffs is absolutely frivolous.
48. There is one more reason to reject the claim of the
plaintiffs regarding possession of the land in question. It is settled
law that in case of a immovable property which is a vacant site,
the possession follows the title. Reliance in this regard is placed
upon the judgment of Anathula Sudhakar Vs. P. Buchi Reddy
(DEAD) By Lrs. & Ors., 2008 5 SCR 331. The defendants No.1
to 4 have proved their title over the land by sale deeds Ex.
DW2/1 and Ex. DW2/2, and the mutation Ex. DW 2/10 and Ex.
DW2/11. It is not disputed by either of the parties that the land in
question is a vacant site. Hence, it is the possession of the
defendants No. 1 to 4 which would be presumed in law and not
of the plaintiffs. Further, when it is held that the plaintiffs are not
in possession, it was mandatory for the plaintiffs to sue for
possession also and the simplicitor suit for declaration and
injunction, without seeking possession, was not maintainable.
The ratio of Anathula Sudhakar (supra) speaks for itself in this
regard.
49. As a result of the above discussion, it is clear that
the plaintiffs have not able to prove that the GPA Ex. DW2/3 and
sale deed Ex. DW2/1 and Ex. DW2/2 were invalid and void in
law. The defendants No.1 to 4 have been able to prove their title
CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 37 of 39
and possession over the plot bearing Khasra No.388, Village
Mitraon, Delhi. It is also apparent that the suit was clearly barred
by limitation and the plaintiffs being divested from the land in
question had no locus standi to filed the present suit. The
plaintiffs have omitted to sue for possession and thus, the present
suit was not maintainable.
Consequently, the issues No. i, ii, iv and vi are
decided in favour of the defendants and against the plaintiffs.
Issue No. I Whether plaintiff is entitled for a decree of permanent
injunction as prayed? OPP
50. To be entitled to grant of injunction against the
defendants, the plaintiffs ought to have proved their case for
declaration. The relief of injunction was consequential to the
relief of declaration. When the plaintiffs are not entitled for the
relief of declaration, they cannot be granted injunction against
the defendants.
Accordingly, the issue No. iii is also decided in
favour of the defendants and against the defendants.
Relief
51. In view of my aforesaid findings, the suit of the
plaintiffs is dismissed.
Decree sheet be prepared accordingly.
Realistic costs of Rs. 2 lakhs are imposed on the
plaintiffs in view of the judgment of Salem Advocates Bar
CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 38 of 39
Association, Tamil Nadu Vs. Union of India, 2005 6 SCC 344,
payable to the defendants No.1 to 4.
File be consigned to record room.
Digitally
signed by
Announced in open Court PRANAV
PRANAV JOSHI
On this 23th Day of December, 2024 JOSHI Date:
2024.12.23
14:18:03
+0530
(PRANAV JOSHI)
ACJM-01/NEW DELHI
PHC/DELHI.
THE THEN
JSCC/ASCJ/GJ (CENTRAL)
TIS HAZARI COURTS/DELHI.
CS SCJ No. 593444/2016 Dilbagh Singh & Anr. Vs. Sukh Chand Jain & Ors. Page No. 39 of 39