Santosh Jha & Anil Kumar Jha v. Salma Deshmukh & Ors

3. As per the Plaintiff of plot bearing No.20, Shyam Vihar, Phase-1, Dindarpur, Najafgarh New Delhi-110043 measuring approximately 120 sq. yards (hereinafter referred to as “Suit Property”) was originally owned by one Sh. Randhir who had then sold it to one Sh. Vinay Madhur from whom she had purchased the Suit Property from by execution of GPA, Agreement to Sell, Possession Letter etc. dated 13.01.2011, for a sale consideration of Rs.13,50,000/-. She had continued to be the owner of the Suit Property since then. She even constructed a boundary wall and also fixed a gate on the Suit Plot.

4. On 13.02.2020, she received a call from her relatives who resided nearby, that the Revisionist/Defendants have forcibly entered and are claiming ownership over the Suit Property. She sent her son, Zakhir Deshmukh to the spot and somehow those intruders went away. Again on 14.02.2020, she came to know that same people have returned to the property and have broken the lock at the gate and have partly demolished the boundary wall. They caused damage to the Suit Property in collusion with the local police and did not allow the Plaintiff/Respondent to enter the Suit Property which was in her ownership and possession till 14.02.2020.

5. The Plaintiff made a complaint to the police on 15.02.2020 who assured her for taking the necessary action. In the meantime, Revisionist/Defendant No.1 and 2 continued to be in possession and raised construction on the Suit Property. The Plaintiff, thus, filed the Suit under Section 6 of the Specific Relief Act, 1963 for restoration of her possession in the Suit Property.

6. The Suit was contested by the Revisionists/Defendants who in their Written Statement set up the defence that they had purchased the Suit Property from her erstwhile owner, Sh. Jai Kumar Thakur vide documents namely GPA, Agreement to Sell etc. dated 11.12.2001 and they have been in possession of the Suit Plot since then. It was further claimed that they had got the boundary wall constructed along the plot and had also carried out Damp Proof course (DPC). They, with the intent of raising construction over the suit plot, applied for an Electricity connection on 24.01.2020. When they started their construction on the suit plot, Respondent/Plaintiff along with their relatives and other local people, tried to interfere in the construction work and also extended threats to demolish or burn the property and Police complaints were made by them. It was thus, asserted that they have been in possession since 2001 and that the Suit of the Plaintiff was liable to be dismissed.

7. It is further submitted that the connivance of the Plaintiff with the SHO is further evident from the fact that soon after the Decree, an Execution Petition was filed and the possession has been handed over to the Plaintiff within two months.

8. The following issues were framed in the Suit:

1. Whether plaintiff is entitled to the relief of possession as prayed for? OPP.

2. Whether the proper court fees has not been filed? OPD.

3. Whether the plaintiff has locus standi to file the suit? OPP.

4. Relief

9. The Plaintiff, Salma Deshmukh as PW-1 deposed on the lines of the averments made in the Plaint.

10. PW-2, Zakhir Deshmukh, son of the Plaintiff who corroborated her testimony.

11. PW-3, Sh. Vinay Madhur was the erstwhile owner and PW[4], Gulab Singh is the property dealer who testified about the sale of property by Vinay Madhur to the Plaintiff.

12. The Defendants examined DW-1, HC Surinder Kumar from P.S. Chhawala who proved the Complaint dated 02.03.2020 Ex.DW- 1/A.

13. DW-2, Sh. Vijay Kumar from Sub Registrar’s office proved registered GPA dated 11.02.2001 Exh.DW-2/A in favour of Defendant Nos.[1] & 2.

14. DW-3 Sh. Santosh Kumar Jha and DW-4 Sh. Anil Kumar Jha, Defendant Nos.[1] & 2 respectively, deposed about the facts as narrated by them in their Written Statement.

15. The learned Additional District Judge in respect of the issue No.2 regarding the payment of Court fee observed that the Court fee of Rs.10,250/- has been paid. Furthermore, the Defendants have not led any evidence to the contrary and thus, the Court fee has been paid accordingly.

16. In regard to Issue Nos.[1] & 3 regarding the relief for possession and locus standi of the Plaintiff to seek the relief, the reference was made to the testimony of PW-1, Smt. Salma Deshmukh and also to her documents, as well as to the report of the SHO and the MCD, to conclude that she was in possession and had been illegally dispossessed by the Defendants. It was further held that the Suit for Recovery of Possession had been filed within six months of dispossession. Consequently, the Suit for possession under Section 6 of the Specific Relief Act, 1963 was decreed in favour of the Plaintiff/Respondent.

17. Aggrieved by the said Judgment, present Revision Petition has been filed.

18. Learned Counsel on behalf of the Revisionists (Defendants) as argued that the Defendant/Revisionist had GPA, Possession Letter, Will etc. of 2001 which are registered documents duly executed in their favour by one Sh. Jai Kumar Thakur. The alleged ownership documents namely GPA, Agreement to Sell, etc. in favour of the Plaintiff have been subsequently executed in 2011 and are simply notarised documents which have no legal value. The documents of the Defendants show not only their ownership but also the possession in the Suit Property since 2001. It is clear that where the property is an empty plot of land, then essentially the ownership follows from the ownership documents.

19. Learned counsel placed reliance on the Delhi High Court judgment of Hoshiari Devi & Ors. vs. Jagat Singh & Anr., (2006) SCC OnLine Del 1364, wherein the Court held that Section 6 of the Specific Relief Act, 1963 is a special procedure created to try a particular nature of suits where a party is dispossessed from the Suit Property without due process of law and cannot be clubbed with any other relief.

20. It is further contended that the receipt of temporary Electricity connection dated 24.01.2020 further establishes that the Defendants were in physical possession. Furthermore, the reports of the SHO and the MCD reports do not confirm about the possession of the Plaintiffs since 2001. It is, therefore, claimed that the learned Trial Court fell in error in decreeing the Suit in favour of the Plaintiff and the same is liable to be set aside.

21. Learned counsel on behalf of the Plaintiff on the contrary, has asserted that admittedly the original owner was Sh. Randhir Singh who sold the plot in question to Sh. Vinay Madhur on 08.04.1998 who in turn sold the property to the Plaintiff vide GPA, Agreement to Sell etc on 13.01.2011. They were put into physical possession and the Plaintiff had raised the boundary Wall and erected the gate. Their possession continued to be continuous till 14.02.2020 when they were dispossessed. It is asserted that the possession is fully established from the photographs and also from the report of the SHO and the MCD. They have been forcibly dispossessed and the Suit has been filed within six months.

22. The learned ADJ has rightly appreciated the evidence of the parties and decreed the suit in favour of the Plaintiff/Respondent. It is submitted that there is no merit in the present Appeal which is liable to be rejected.

23. The learned counsel has placed reliance on Anathula Sudhakar vs. P.Buchi Reddy, (2008) 4 SCC 594 wherein it has been observed that mere mutation of the property in the name is not sufficient to establish the ownership of the property in the absence of title documents.

24. Submissions Heard and Record perused. Issue-wise findings are as under:- ISSUE NO. 2: “Whether the proper court fees has not been filed? OPD.”

25. Issue no.2 was framed in regard to the payment of Court fees.

26. The Plaintiff has assessed the value of the suit property as Rs.14 lakhs and consequently paid the Court fees of Rs.10,250/-.

27. It is vehemently contended on behalf of the Revisionists that the value of the property should have been assessed on the circle rate and that it was more than Rs.55 lakhs. However, the Court fee has been paid by assessing the value of the suit property as Rs. 14 lakhs. Therefore, the Court fee paid is deficient and the issue needs to be revised accordingly.

28. Both, PW-1, Salma Deshmukh and PW-2, Zakir in their crossexamination asserted that the value of the property are around Rs.25 lakhs. Present value is around Rs.20-25 lakhs and denied the suggestion that it was more than Rs.55 lakhs. Aside from giving the suggestions, no evidence in support of their contention that the value of the suit property was Rs.55 lakhs at the time of institution of the suit has been led by the Revisionist/Defendant.

29. The learned ADJ has rightly concluded that the Defendants have not been able to show that proper Court fees have not been paid and hence, the issue was decided against them.

30. The learned ADJ has rightly held that the Court fee has been paid in accordance with law.

ISSUE NO. 2 AND 3: “Whether plaintiff is entitled to the relief of possession as prayed for? OPP.” “Whether the plaintiff has locus standi to file the suit? OPP.”

31. Issue Nos.[1] & 3 pertain to the issue in regard to the restoration of possession.

32. PW-1, Smt. Salma Deshmukh had proved her Agreement to Sell, Letter of Possession, GPA, payment receipts dated13.01.2011 collectively exhibited as Exh.PW-1/2, executed in her favour by Sh. Vinay Madhur. She has further deposed that she has been in possession of the Suit Property since 2011. It is further deposed that she had made the boundary wall and erected the gate. Since then she has been in possession of the Suit Property till 13.02.2020.

33. The testimony of PW-1, Smt. Salma Deshmukh is fully corroborated by PW-2, Zakhir Deshmukh who had further clarified in his cross examination that the property was owned by one Sh. Randhir Singh, the coloniser. Sh. Gulab Singh was the property dealer who was also the brother of Sh. Randhir Singh. He sold the suit property to Sh. Vinay Madhur on 08.04.1998 by executing the property documents namely GPA, Agreement to Sell, etc. who thereafter, sold it to the Plaintiff on 13.01.2011.

34. These facts are fully corroborated by PW-3, Sh. Vinay Madhur, the erstwhile Purchaser of the Suit plot who reiterated that he having purchased the property from Sh. Randhir Singh on 08.04.1998 sold it to the Plaintiff on 13.01.2011, after constructing the boundary wall of 03 feet.

35. The Respondent/Plaintiff thus, were able to prove that they were put in the possession of the Suit premises by Sh. Vinay Madhur vide Possession Letter dated 13.01.2011, which is fully corroborated by the testimony of PW-3, Sh. Vinay Madhur.

36. On the other hand, the Defendants have relied upon the documents namely the photocopies of Agreement of Sale receipt, Possession Letter, Receipt - Marked A to C respectively and have also proved Registered GPA and Will as Ex. DW-2/A and DW-2/B, but they have admitted in their cross examination that they do not have the previous chain of documents. They also denied having any knowledge about who was the original owner. They have only asserted that they had purchased the property from Sh. Jai Kumar Thakur but have not been able to explain how Sh. Jai Kumar Thakur ever came into the possession of the Suit Property or how he ever handed over the possession to the Defendants.

37. Thus, the Defendants were unable to depose about the previous chain of documents or from whom did Sh. Jai Kumar Thakur acquire the right in Suit Property. Without the complete chain of documents, merely on the basis of certain documents, even if registered, executed by on Jai Kumar without anything more cannot be sufficient to create any title in the defendants or even establish their possession in the property. Pertinently, to cover up non production of chain of documents, it was deposed that the documents got lost for which they had recorded an E-FIR on 03.02.2020. Even if for the sake of arguments, this explanation is accepted, then too at least orally, they could have disclosed the entire chain dehors the documents. The Copy of documents viz. registered GPA, etc also do not give details of the erst while owner or how the property has travelled into the hands of Sh. Jai Kumar Thakur.

38. Be as it may, it has been rightly observed by the learned ADJ that the Suit is for Recovery of Possession under Section 6 of the Specific Relief Act, 1963 and the title documents are of little consequence in the present case. These documents assume significance to the limited extent of corroborating as to when the parties came into possession as under law, they are not sufficient to confer ownership on the party.

39. The Defendants in order to establish their long possession in this plot, had also relied upon the receipt for temporary Electricity connection dated 24.01.2020, Ex. DW-3/A, to depose that they had applied for temporary Electricity connection for the purpose of raising the construction.

40. Pertinently, if the possession of the Suit Property was in fact with the Defendants, no explanation has been given by them as to why they suddenly chose to raise the construction in 2024 and never before. This is also significant from the fact that as per the testimony of PW-1 and PW-2, they received information from the relatives living nearby on 13.02.2020 that some persons were trying to forcibly enter the premises. They immediately rushed to the spot but those persons left though after extending threats. Again, on 14.02.2020 they came to know that same persons had returned to the property and have demolished the boundary wall and started raising construction.

41. It is pertinent to observe that both, Defendant Nos.[1] & 2 in their respective testimony as DW-3 & 4 have admitted that they had not applied for any permission from MCD for raising the construction. It is quite evident that this construction has been undertaken by the Defendants in 2020 only after forcibly entering into the possession. The report of the SHO also confirms the unauthorised construction allegedly having been undertaken by Defendant Nos.[3] &

4.

42. On the other hand Sh. Vinay Madhur, from whom the property had been purchased by the Plaintiff had deposed as PW-3 that he had handed over the possession to the Plaintiffs on 13.01.2011. There is cogent evidence adduced on behalf of the Plaintiff to establish their possession in the property since 2011 till 14.02.2020.

43. The learned ADJ has rightly concluded that the Plaintiffs have been dispossessed on 14.02.2020 and were entitled to restoration of their possession under Section 6 of the Specific Relief Act, 1963.

44. There is no infirmity in the impugned judgment. The Appeal is hereby dismissed.

JUDGE DECEMBER 10, 2024