Delhi District Court
Vijay Laxmi vs Bir Sain Jain on 18 February, 2026
IN THE COURT OF GOPAL KRISHAN, JSCC/ASCJ/GJ-01
(CENTRAL) TIS HAZARI COURTS, DELHI
CS SCJ No. 593801/2016
CNR NO. DLCT030000492007
IN THE MATTER OF -
SMT. VIJAY LAXMI
W/O SH. P. L. MANOCHA
R/O 38, JEEVAN BIMA APPARTMENT,
JAGATPUR, DELHI-110032. ....PLAINTIFF
VERSUS
1. BIR SAIN JAIN,
S/O SH. RAMSWAROOP JAIN,
R/O A-2/14, SHAKTI NAGAR,
DELHI-110052.
2. SUMIT JAIN, (Suit of plaintiff qua this
GALI NO. 6, defendant was dismissed
SANT NAGAR, vide order dated
BURARI, DELHI. 19.03.2008)
3. THE S.H.O
P.S. TIMAR PUR, DELHI
4. THE M.C.D.
TOWN HALL
DELHI (THROUGH ITS
COMMISSIONER) ...DEFENDANTS
Date of Institution 08.08.2007
Date of Reserving the Order 22.01.2026
Date of Decision 18.02.2026
Decision Dismissed
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SUIT FOR DECLARATION, POSSESSION AND
PERMANENT INJUNCTION
JUDGMENT
1. At the outset, it is pertinent to mention that the present suit
was instituted by the plaintiff on 08.08.2007 by way of a plaint,
impleading four defendants (i.e. defendant No. 1 Bir Sain Jain,
defendant No. 2 Sumit Jain, defendant No. 3 SHO, and defendant
No. 4 MCD). Subsequently, on 19.03.2008, defendant No. 2,
Sumit Jain, made a statement before the court asserting that he had
no concern with the suit property and was neither encroaching
upon nor raising any construction thereon, and will neither do so
in future. In view of this statement, the suit qua defendant No. 2
Sumit Jain was dismissed vide order of the same date.
2. Thereafter, the plaintiff filed an application under Order 6
Rule 17 CPC on 16.05.2011 seeking amendment of the plaint. The
said application was allowed by the court vide order dated
05.05.2012, and the amended plaint of the plaintiff was taken on
record. It is further noteworthy that though in the amended memo
of parties attached with the amended plaint, the plaintiff mentioned
only three defendants (defendant No. 1 Bir Sain Jain, defendant
No. 2 SHO, and defendant No. 3 MCD), however, in the title/first
page of the amended plaint, all four originally impleaded
defendants were reflected (i.e. defendant No. 1 Bir Sain Jain,
defendant No. 2 Sumit Jain, defendant No. 3 SHO, and defendant
No. 4 MCD). Moreover, the body of the amended plaint also
contained averments pertaining to defendant No. 2 Sumit Jain,
despite the fact that the suit against him had already been
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dismissed vide order dated 19.03.2008. Accordingly, for the sake
of convenience and clarity, all four defendants originally
impleaded by the plaintiff are being reflected in the case title of the
present judgment, though in most parts of the court record,
including the order sheets and the evidence, reference has been
made only to three defendants (i.e. defendant No. 1 Bir Sain Jain,
defendant No. 2 SHO, and defendant No. 3 MCD), as mentioned
in the amended memo of parties filed alongwith amended plaint.
3. Before adverting to the facts of the amended plaint, the court
deems it appropriate to state in brief the case of the plaintiff as per
the initial plaint filed in the year 2007, initial defence of defendants
in their written statements and to also highlight certain important
facts from record leading to filing of application seeking
amendment of the plaint by the plaintiff.
4. Brief facts, as per the original plaint, are that the plaintiff is
owner in physical possession of plot measuring 200 sq. yds bearing
No.12/15, Gali No.8, Sant Nagar, near village Burari (hereinafter
referred to as “suit property) situated in khasra no.937, as shown
in red colour in the site plan attached with the plaint. It is indicated
that the suit property was purchased by the plaintiff from one Mr.
Om Prakash through sale documents (i.e. power of attorney,
agreement to sell, affidavit, etc.) on 30.09.1981, who in turn
purchased it from previous owner Mr. Kartar Singh by way of sale
deed. It is further indicated that defendant no. 1 & 2 are land
grabbers, who with their good connections with officials of
defendant no. 3 & 4 are trying to encroach upon the suit property
of plaintiff.
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5. It is further alleged that earlier Mr. Trilok Jain, Jagan Nath
Jain and his wife tried to occupy the suit property forcibly and
illegally, claiming themselves as owner of the piece of land
measuring 150 sq. yds., part of khasra no.136/10/2 situated in
extended Lal Dora Abadi Deh of village Burari, Sant Nagar, Delhi.
Plaintiff further indicated that he kept on insisting Mr. Trilok
Chand Jain that his plot is situated at different place and in
different khasra number, but Mr. Trilok Chand Jain did not accede
to the request of the plaintiff, whereupon, the plaintiff was
constrained to file a civil suit against Trilok Chand Jain, Jagan
Nath Jain and his wife. It is further alleged that after filing the said
suit and trial for reasonable period, good sense prevailed upon the
aforesaid persons and they agreed to leave their claim on the suit
property as their plot was situated at different place and Sh. Trilok
Chand Jain also undertook orally not to interfere in the peaceful
possession of the plaintiff over the said suit property and
accordingly, both the parties did not pursue the suit and suit was
disposed of without deciding any title or status, on merits.
6. Plaintiff further alleged that now she has come to know that
defendant no.1 herein has got executed some sale documents from
aforesaid Sh. Trilok Chand Jain and defendant no.1 and 2, have
again started claiming the suit property as their own land, but their
land is part of khasra no.136/10/2, which is situated at a different
place. Plaintiff specifically alleged that suit property is part of land
situated in khasra no. 937 and not of 136/10/2, and further stated
that the defendant no. 1 & 2 are not ready to understand the same
and they are trying to construct the temple over the suit property.
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7. The plaintiff has mentioned the incidents of 28.07.2007,
03.08.2007 and 04.08.2007, when defendant no.1 and 2 with a
view to encroach upon the suit property, tried to raise the
construction over the same for which the plaintiff made various
complaint to various authorities including defendant no.3 and 4
and also made calls at 100 number, but defendant no.3 and 4 have
failed to take any action in this matter. Hence, the plaintiff filed the
present suit initially with the following prayers:-
(a) pass a decree of declaration in favour of the plaintiff
and against the defendants, thereby declaring that the suit
property bearing No. 12/15, Gali No. 8, Sant Nagar, Near
Village Burari, measuring 200 sq. yds. as shown in red
colour in the site plan, is actually located in Khasra no. 937
instead of Khasra No. 136/10/2.
(b) pass a decree of permanent injunction thereby
restraining the defendants from encroaching and from
raising unauthorised construction upon the suit property.
8. After appearance, defendants filed their respective written
statements. As the various allegations levelled on merits in the
plaint did not pertain to defendant no.3/SHO concerned and
defendant no.4/MCD, these defendants basically raised only the
preliminary objection about maintainability of the suit on the
ground of non-serving of mandatory legal/statutory notice upon
them as per law prior to filing of the present suit. Whereas separate
written statements were filed on behalf of defendant no.1 and 2,
though, they raised similar objections in their written statements.
The objections taken by defendant no. 1 & 2 will be highlighted
later, but the main objection which was taken on behalf of
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defendant no.1 and 2 was that the suit property in question belongs
to the ownership of defendant no.1 and same falls in old khasra
no.1060, which khasra No.1060 has become new khasra
no.136/10/2 after Chakbandi.
9. Perusal of record reveals that after filing of the present suit
on 08.08.2007, the court vide order dated 01.09.2007 directed the
concerned Tehsildar to carry out demarcation and file the
demarcation report of the suit property and in the meanwhile, the
court directed the parties to maintain the status quo regarding the
construction in the suit property. In terms of directions of the court,
a demarcation report dated 19.12.2007 was filed by Tehsildar
concerned on 24.01.2008, wherein it was indicated that the suit
property, where the construction of a temple is going on, falls in
khasra no.136/10/2.
10. It further transpires that after filing of the said demarcation
report, an application u/o 39 Rule 4 CPC was filed on 19.03.2008
on behalf of defendant no.1 to the effect that as per the demarcation
report of concerned Tehsildar, it is very clear that the suit property
actually falls in khasra no.136/10/2, which infact belongs to
defendant no.1, and a request was made vide said application that
status quo order passed on 01.09.2007 by the court be set aside.
When the case was pending adjudication on the said application, a
submission was made on behalf of plaintiff on 03.05.2011 that the
plaintiff wishes to move an amendment application, whereafter an
application u/o 6 Rule 17 CPC was filed on behalf of plaintiff on
16.05.2011.
11. In the said application u/o 6 Rule 17 CPC, the plaintiff
alleged that at the time of filing the suit, the suit property in
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question was lying vacant and plaintiff was in physical possession
of the same, but after filing of the present suit, the plaintiff came
to know on 25.08.2007 that defendant no.1 has raised some
unauthorized construction over the suit property and now, the
defendant no.1 with the help of other defendants is not allowing
the plaintiff to enter in the plot in question and therefore, relief of
possession is required to be added in the present suit as a necessary
consequential relief. It was further indicated in the said application
that after filing of the present suit, the husband of the plaintiff had
filed an RTI application before the revenue department to know
about the new khasra number of the suit property in question
after chakbandi and in response to that, it was revealed that old
khasra No.937 is now khasra no. 136/10/2 and alongwith the
application, the plaintiff had attached the copy of said RTI reply
dated 23.07.2008. It was further mentioned in the application that
since defendant no.2 has already been deleted from the array of
parties, therefore, even the amended memo of parties is required
to be filed. Therefore, the prayers were made to amend the plaint
so as to amend the memo of parties, to make necessary amendment
regarding khasra number, to add the prayer of possession and to
change the case title of the suit.
12. After hearing the parties, the court allowed the said
application vide its order dated 05.05.2012 and took the amended
plaint on record.
13. In the amended plaint, the plaintiff has basically changed the
description of the suit property by keeping rest of the contentions
same and changed description of suit property is reflected in para
no. 1 of the amended plaint, wherein plaintiff mentioned that he is
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the owner in exclusive physical possession of plot bearing
no.12/15, Gali No.8, Sant Nagar, near village Burari, measuring
200 sq. yards (hereinafter referred to as ‘suit property’) situated in
old khasra no.937, now new Khasra No. 136/10/2 after
Chakbandi. Similarly, in other para of the amended plaint, plaintiff
also stated that the property of the defendant no. 1 Bir Sain Jain
(and his predecessor-in-interest Mr. Trilok Chand Jain) is part of
old khasra number 1060, which has no connection with khasra
number 136/10/2 but defendant no. 1 & 2 are falsely claiming the
suit property in question by stating that the old khasra no. 1060 has
changed to khasra number 136/10/2, whereas in fact it is old khasra
no. 937 which has changed to khasra no. 136/10/2. Further, in the
amended plaint, the plaintiff prayed for the following reliefs:-
(a) pass a decree of declaration in favour of the plaintiff
and against the defendants, thereby declaring that the suit
property bearing No. 12/15, Gali No. 8, Sant Nagar, Near
Village Burari, measuring 200 sq. yds. as shown in red
colour in the site plan, is actually located in Khasra no. 937
now new Khasra No.136/10/2 after Chakbandi.
(b) pass a decree of possession in favour of the Plaintiff and
against the defendant No. 1, directing him to handover the
physical possession of the suit property situated in old
Khasra No. 937 now new Khasra No. 136/10/2 after
chakbandi.
(c) pass a decree of permanent injunction thereby
restraining the defendant no. 1 from encroaching and from
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situated in old Khasra no. 937 now new Khasra
No.136/10/2 after Chakbandi.
14. In pursuance to amended plaint, amended WS was filed only
on behalf of defendant no.1/Bir Sain Jain and defendant no.3/SHO
concerned, whereas no amended WS was filed on behalf of
defendant no.4/MCD.
15. In the amended WS to the amended plaint, defendant no. 1
indicated that he had purchased the suit property in question
(which measures 150 sq. yds. only instead of 200 sq. yds. and
which is part of khasra no.136/10/2), from Mr. Trilok Chand Jain
on 07.08.2006 vide registered GPA, agreement to sell and other
documents. Defendant no. 1 denied all the allegations of the
plaintiff and submitted that plaintiff and her husband are in habit
of filing false and frivolous litigations with malafide intention to
harass and blackmail people by dragging them into unnecessary
litigations. Defendant no.1 has mentioned the details of one
previous civil suit no. 32/92 filed by husband Mr. Phiraya Lal of
the plaintiff for mandatory injunction and possession, which suit
was later dismissed by the concerned civil judge on 19.01.2005.
Defendant no.1 further alleged that it is the plaintiff and her son-
in-law who visited the suit property on 31.07.2007 and threatened
the labourers and masons engaged in the construction of Jain
Temple, for which, a complaint was lodged on the same day
against them.
16. In addition, defendant no. 1 raised various objections to the
case of plaintiff like taking of contradictory stand by the plaintiff,
suit being barred by res-judicata as well as limitation, non-joinder
of necessary parties, etc. To elaborate, it is indicated by defendant
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no.1 that plaintiff has taken the contradictory stand in the present
case because in the initial plaint, plaintiff has specifically stated
that the suit property is part of khasra no. 937 and not of khasra
no.136/10/2 but in the amended plaint the plaintiff is alleging
himself to be the owner of the suit property situated in old khasra
no. 937, now new khasra no.136/10/2. Defendant no.1 further
highlighted the contradictory stand of the plaintiff by stating that
in the body of the amended plaint, the plaintiff is alleging that she
is in exclusive physical possession of the suit property in question,
whereas in the prayer clause, the plaintiff is also seeking the relief
of possession with regard to the suit property.
17. Defendant no.1 further indicated that after purchasing the
suit property on 07.08.2006 from Mr. Trilok Chand Jain, he has
donated/transferred the same to the registered Society namely Shri
Digambar Jain Samaj, Burari, Delhi and accordingly, at present, he
is not even in physical possession of the property and therefore,
the suit is bad for non-joinder of necessary party i.e. Sh. Digambar
Jain Samaj. It is further alleged that the said society has already
placed Jain Idols and constructed a Jain Temple in the suit property
and religious ceremonies are performed in said Jain Mandir and
hence, the present suit for possession filed by the plaintiff against
defendant no.1, who himself is not having the possession of the
property, is not maintainable.
18. It is further alleged that the suit of the plaintiff is even barred
by principle of res-judicata because the plaintiff has earlier filed a
civil suit bearing no. 239/2001 on 29.05.1985 for possession and
permanent injunction against Trilok Chand Jain & Ors. with regard
to the suit property in question, wherein the plaintiff has
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specifically sought the relief of possession against the defendants
of that suit and which suit was dismissed by civil judge concerned
on merits vide judgement dated 08.08.2001 and an application for
restoration of the said suit was further dismissed vide order dated
13.09.2002 by civil judge concerned.
19. Defendant no.1 further stated that the suit is barred by
limitation also because in the aforesaid earlier suit filed on
29.05.1985 by the plaintiff, she has sought the possession of the
property from the defendants in the said suit, which shows that the
plaintiff was not in possession of the suit property prior to filing of
the said suit on 29.05.1985 and plaintiff has failed to disclose as to
when she has come in possession of the suit property after
29.05.1985. Therefore, it is alleged that the present suit for
possession filed after expiry of more than 20 years is clearly barred
by limitation. At the end, it is requested to dismiss the suit.
20. In the amended WS filed on behalf of defendant no.3/SHO
concerned, mainly the same objection regarding non-serving of
mandatory notice upon him as per Section 140 of Delhi Police Act
was raised.
21. Plaintiff chose not to file any replication to any of the WS
filed on behalf of the defendants.
22. On the basis of pleadings of the parties, following issues
were framed for trial vide order dated 22.11.2012:-
(1) Whether the present suit of the plaintiff is barred by the
principle of res-judicata? OPD(2) Whether the present suit of the plaintiff is within
limitation? OPPCS SCJ No. 593801/2016 VIJAY LAXMI Vs. BIR SAIN JAIN & ORS. PAGE NO. 11 OF 50
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(3) Whether the suit is bad for non-joinder of necessary
parties? OPD(4) Whether the suit of the plaintiff is barred u/s140 of the
D.P. Act? OPD2(or now OPD3/SHO)(5) Whether the plaintiff is entitled to a decree of
declaration as prayed for? OPP(6) Whether the plaintiff is entitled for decree of possession
as prayed for.? OPP(7) Whether the plaintiff is entitled for decree of declaration
as prayed for? OPP(8) Relief.
23. At this stage, it is apt to mention that there seems to be
inadvertent/typo error while framing issue no. 7 for the reasons
mentioned in ensuing paragraphs.
24. In view of the court, issue no.5, 6 and 7 were framed on the
basis of three reliefs sought by the plaintiff in its amended plaint.
In other words, issue no.5 was framed on the basis of relief of
declaration sought by the plaintiff vide prayer (a), as mentioned in
para 13 hereinabove. Similarly, issued no. 6 was framed in
accordance with prayer no. (b) regarding possession of the plaintiff
in her amended plaint. Now vide prayer no. (c), the plaintiff has
sought decree of permanent injunction in her favour and against
defendant no.1 to the effect that defendant no.1 be restrained from
encroaching or raising unauthorized construction over the suit
property. So, in view of the court, issued no.7 should have been
framed as – “whether the plaintiff is entitled for a decree of
permanent injunction as prayed for? OPP”. But, it seems that
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inadvertently, issue no.7 was framed as “Whether the plaintiff is
entitled for a decree of declaration as prayed for? OPP”
25. Order 14 Rule 5 CPC empowers the court to amend any
issue at any time passing a decree and therefore, in the overall facts
and circumstances of this case, the court reframes/amends issue
no. 7 at this stage as under –
Issue no. 7 – “whether the plaintiff is entitled for a decree
of permanent injunction as prayed for? OPP”.
26. Further, bare perusal of the record including the evidence of
the parties, makes it clear that both the parties were aware of the
actual issue no.7 as reframed above, therefore, in view of the court
no prejudice shall be caused to any of the parties by reframing of
issue no. 7 at this stage.
27. In PE, plaintiff has examined herself as PW-1, whereas Mr.
Yogesh Kumar, Patwari from the office of SDM, Civil Lines, Tis
Hazari Courtrs, Delhi was examined as PW-2.
28. PW-1 tendered the following documents in her evidence:-
a) Ex.PW1/A – Site Plan.
b) Ex.PW1/B -Sale Deed.
c) Mark A (De-exhibited from Ex.PW1/C) – Copy of General
Power of Attorney
d) Mark B (De-exhibited from Ex.PW1/D) – Copy of
Agreement to Sell
e) Mark C (De-exhibited from Ex.PW1/E) – Copy of affidavit
f) Mark D (De-exhibited from Ex.PW1/F) – Copy of registered
Will
g) Mark E (De-exhibited from Ex.PW1/G) – Copy of money
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h) Ex.PW1/H- RTI reply dated 23.07.2008 (copy of this
document was also exhibited separately as Ex.PW2/1 in the
evidence of PW-2).
i) Ex.PW1/I- Copy of complaint to SHO dated 03.08.2007
j) Ex.PW1/J, Ex.PW1/K & Ex.PW1/L – Counter
courier/postal receipts for dispatch of complaints to ACP,
Commissioner of Police and Commissioner, MCD
respectively.
29. PW-2 Mr. Yogesh Kumar tendered copy of RTI reply dated
23.07.2008 as Ex.PW2/1 and Nakal (true copy) of respective pages
of Khatoni, as Ex.PW2/2 (colly.) in his evidence.
30. Initially only these two witnesses were examined in
plaintiff’s evidence and PE was closed vide order dated
07.09.2015, whereafter the matter was put up for defence
evidence.
31. In DE lead by defendant no.1, DW-1 Bir Sain Jain, DW-2
Vinod Kumar Pandey, Halka Patwari from the office of SDM,
DW-2 Bal Krishan Sharma (a private witness who was defendant
in a past case filed by husband of plaintiff), DW-3 Ram Avtar,
Patwari from the office of SDM, and DW-4 Vikram JJA, Record
Room (Civil), Tis Hazari Courts, Delhi were examined.
Inadvertently, the same witness number, DW-2, was assigned to
two witnesses, namely Vinod Kumar Pandey and Bal Krishan
Sharma. Furthermore, the documents tendered by both witnesses
were marked with the identical exhibit number i.e., DW-2/1.
32. DW-1 tendered the following documents in his evidence:-
a) Mark-A (De-exhibited from Ex.DW1/1)- Copy of the
judgment dated 08/08/2001.
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b) Mark-B (De-exhibited from Ex.DW1/2) – Copy of the order
dated 13/09/2002.
c) Ex.DW1/3 (OSR) – Copy of the certificate of registration of
Sri Digambar Jain Samaj Burari.
d) Ex.DW1/4 to Ex.DW1/8 respectively (OSR) – Copy of the
GPA, copy of the agreement to sell, copy of the receipt, copy
of the affidavit and the copy of the Will, all dated
07/08/2006 respectively.
e) Ex.DW-1/9 – De-exhibited being not on record.
f) Ex.DW1/10 (OSR) – Copy of the passbook with regard to
the Khasra no.1060.
g) Mark-C (De-exhibited from Ex.DW1/11) – Copy of the
demarcation report.
h) Mark-D (De-exhibited from Ex.DW1/12) – Copy of the DD
no.20 dated 31/07/2007
33. DW-2 Vinod Kumar Pandey, Halka Patwari from the office
of SDM, tendered the original khatoni for the year 1993-1994 with
regard to Khasra No.136/10/2 as Ex.DW2/1 (OSR) in his
evidence.
34. DW-2 Bal Krishan Sharma (a private witness who was
defendant in a past case filed by husband of plaintiff) tendered in
his evidence, the certified copy of order dated 19.01.2005 as
Ex.DW2/1, passed by the concerned court in the civil suit filed by
husband of plaintiff against various defendants including said
witness.
35. DW-3 Ram Avtar, Patwari from the office of SDM tendered
in his evidence Khata Khatoni with respect to Khasra No.136/10/2
for the year 1993-1994 as Ex.DW3/1 (OSR).
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36. DW-4 Vikram JJA, Record Room (Civil), Tis Hazari Courts,
Delhi, tendered in his evidence the certified copy of order dated
13.09.2002 as Ex. DW4/1 passed by concerned court in case titled
as Vijay Laxmi Vs. Trilok Chand Jain & Ors. bearing M.
No.12A/2002.
37. Defence evidence was closed vide order dated 10.08.2018
on behalf of defendant no.1. Since defendant no.3/SHO and
defendant no. 4/MCD did not lead any evidence despite
opportunity, their evidence was also closed on 10.08.2018 and
the matter was fixed for final arguments.
38. It is pertinent to note that when the matter was at the stage
of DE, an application u/o 1 Rule 10 CPC was filed on behalf of
plaintiff on 13.11.2018 for impleadment of Sh. Trilok Chand Jain
and Digambar Jain Samaj Society as party in the present case, but
the said application was dismissed vide order dated 31.01.2019. It
is further pertinent to mention that thereafter, an application u/o 7
Rule 14 r/w Order 18 Rule 17 CPC was filed on behalf of plaintiff
on 03.04.2019, which was allowed vide order dated 19.02.2021
and in pursuance of which, plaintiff lead additional evidence by
examining summoned witnesses i.e. PW-3 Narender Kumar,
Kanoongo from the office of Tehsildar HQ and PW-4 Santosh
Dutt, Patwari, office of SDM.
39. PW-3 Narender Kumar, Kanoongo from the office of
Tehsildar HQ tendered following documents in his evidence:-
a) Ex PW-3/1 (OSR) – Field book of khasra no.136/10 and old
no.937 of Village Burari Delhi
b) Ex PW-3/2 (OSR) – Khatoni chakbandi part 1 of khasra
no.1060 of Village Burari Delhi.
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c) Ex PW-3/3 (OSR) – Khatoni chakbandi part 1 of khasra
no.937 of Village Burari Delhi.
d) Ex PW-3/4 (OSR) – Khatoni chakbandi part 2 of khasra
no.1060 of Village Burari Delhi.
e) Ex PW-3/5 (OSR) – Register karvahi-jild no.1 of khasra
no.937 and 1060 of Village Burari Delhi.
f) Ex PW-3/6 (OSR) & Ex PW-3/7 (OSR) – Register karvahi-
jild no.2 & 3 respectively of khasra no.136/10 Burari
Delhi.
40. PW-4 Santosh Dutt, Patwari, office of SDM, tendered the
field book of Khasra No.136/10/1/1, 136/10/1/2, 10/2, 10/3, 10/4
as Ex.PW4/1 (OSR) and Khatoni paimaish of village Burari as
Ex.PW4/2 (OSR), in his evidence.
41. After said additional evidence on behalf of plaintiff, the
matter was listed for final arguments.
42. No oral final arguments were advanced on behalf of plaintiff
and only written submissions were filed on her behalf. Defendant
no. 1 advanced oral final arguments but despite seeking
opportunity, no written arguments were filed on behalf of
defendant no.1. Whereas despite repeated opportunities, neither
any oral arguments were advanced nor any written arguments were
filed on behalf of defendant no.3/SHO and defendant no. 4/MCD.
Issue-wise findings
43. On the basis of evidence on record and submissions of the
parties, my issue-wise findings are being discussed in ensuing
paragraphs.
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Issue No.1 -Whether present suit of the plaintiff is barred by the
principle of res-judicata? OPD
44. Onus to prove this issue was on the defendants. Although
the issue as framed does not specifically indicate which defendant
bears the onus, in light of the defence set out in the written
statements, the burden appropriately rests on defendant no. 1
alone.
45. During the course of final arguments, Ld. Counsel for
defendant no.1 submitted that to prove the said issue, the defendant
has tendered in evidence copy of judgment dated 08.08.2001
passed by concerned court in the previous suit between the plaintiff
and predecessor-in-interest of defendant no.1 and said document
was marked as Mark-A in the evidence of DW1. Similarly, Ld.
Counsel for defendant no.1 submitted that order dated 13.09.2002
passed by concerned court, vide which an application of the
plaintiff seeking restoration of previous suit was dismissed, has
been tendered in evidence as Ex. DW-4/1 by summoned witness
DW4/Mr. Vikram, JJA, Record Room, Tis Hazari Courts, Delhi.
Ld. Counsel for defendant submitted that a copy of the same order
dated 13.09.2002 was also tendered in evidence of DW1 as Mark-
B. In view of the aforesaid facts, Ld. Counsel for defendant no.1
submitted that since the earlier suit filed by the plaintiff against
three persons including the predecessor-in-interest Mr. Trilok
Chand Jain of defendant no.1 regarding the same property and
seeking the same relief of possession as well as injunction, was
dismissed by concerned court on merits, therefore, the present suit
regarding the same property filed by the plaintiff against defendant
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no.1 seeking same reliefs is clearly barred by the principle of res-
judicata.
46. Per contra, in the written submissions filed on behalf of
plaintiff, it was indicated that the previous suit filed by the plaintiff
against Sh. Trilok Chand Jain was disposed of without decision on
merits because Sh. Trilok Chand Jain has agreed to leave his claim
over the suit property, and compromise of the plaintiff with Sh.
Trilok Chand Jain was reason for disposal of the previous suit.
Therefore, as per plaintiff, the present case cannot be stated to be
barred by the principle of res-judicata particularly when a fresh
cause of action has accrued in favour of plaintiff against the
defendant no. 1 in as much as the defendant no. 1 tried to take
forcible possession of the suit property in year 2007 from the
plaintiff. In support of aforesaid submissions, reliance has been
placed by the plaintiff on the judgment passed by Hon’ble
Supreme Court in Ram Gobinda Dawan & Ors. Vs. Smt. Bhakta
Bal 1971 (1) SCC 387. In the light of aforesaid judgment, it was
submitted on behalf of plaintiff that for the bar of res-judicata to
operate in the subsequent suit, the decision in the former suit must
have been passed on merits on the same substantial questions both
of the facts and law.
47. In this regard, in para no. 5 of the amended plaint itself,
plaintiff has specifically mentioned that earlier Mr. Trilok Jain,
Jagan Nath Jain and his wife tried to occupy the suit property
forcibly and illegally, claiming themselves as owner of the piece
of land measuring 150 sq. yds., part of old khasra no.1060 situated
in extended Lal Dora Abadi Deh of village Burari, Sant Nagar,
Delhi. Plaintiff further indicated that he kept on insisting Mr.
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Trilok Chand Jain that his plot is situated at different place and in
different khasra number, but Mr. Trilok Chand Jain did not accede
to the request of the plaintiff, whereupon, the plaintiff was
constrained to file a civil suit against Trilok Chand Jain, Jagan
Nath Jain and his wife. It is further alleged that after filing the said
suit and trial for reasonable period, good sense prevailed upon the
aforesaid persons and they agreed to leave their claim on the suit
property as their plot was situated at different place and Mr. Trilok
Chand Jain also undertook orally not to interfere in the peaceful
possession of the plaintiff over the said suit property and
accordingly, both the parties did not pursue the suit and suit was
disposed of without deciding any title or status, on merits.
48. It is also the case of the plaintiff that now the defendant no.1
got executed some sale documents from the aforesaid Sh. Trilok
Chan Jain and he has started claiming that his land, which is part
of old khasra no.1060, has changed to khasra no.136/10/2, whereas
infact it is old khasra no. 937 which has been changed to new
khasra no.136/10/2 not old khasra no.1060.
49. So, the plaintiff, in her plaint itself, has clearly admitted the
factum of past litigation with predecessor-in-interest Sh. Trilok
Chand Jain of defendant no.1, but the plaintiff has neither clarified
about the nature of the suit or nature of the relief sought by the
plaintiff against the defendants in the previous suit nor the plaintiff
has filed the copy of the proceedings of the said previous suit. The
only contention of the plaintiff in this regard is that since the
previous suit was disposed of without deciding title and status on
merits because of some alleged settlement between the parties to
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the previous suit, therefore, present case filed by the plaintiff is not
barred by res-judicata.
50. But in his written statement, defendant no.1 has clearly
given the details of the said previous suit and mentioned in para
no.2 of his amended written statement that plaintiff had earlier
filed a civil suit bearing no. 239/2001 on 29.05.1985 against Trilok
Chand Jain & Ors and in the said suit, the plaintiff has sought the
relief of possession as well as injunction against the defendants
with regard to the same suit property. It is further the case of
defendant no.1 that the said suit filed by the plaintiff was heard and
dismissed on merits by the then Ld. Civil Judge on 08.08.2001. It
is further the case of defendant no.1 that thereafter, the plaintiff
even moved an application for re-opening of the said suit but the
said application was also dismissed by concerned court vide its
order dated 13.09.2002 after imposing cost of Rs.2,000/- upon the
plaintiff. Along with his written statement itself, the defendant no.1
had placed on record the copy of said judgment dated 08.08.2001
as well as order dated 13.09.2002 passed in said previous suit by
concerned court. In these facts, the defendant no. 1 raised a specific
objection in his written statement that the present suit for
declaration, possession and permanent injunction with regard to
the same property by the plaintiff against the present defendants is
barred by the principle of res-judicata.
51. It is interesting to note that despite providing the specific
details of the previous suit in his WS by defendant no. 1 by
mentioning the nature of claim as well as indicating that the said
case was decided on merits and despite filing of the copy of
judgments/orders dated 08.08.2001 and 13.09.2002 in the previous
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suit by defendant no.1 alongwith his written statement itself, the
plaintiff has failed to traverse these facts as well as documents by
filing any replication in this matter.
52. It is further pertinent to mention that during his evidence,
DW1 has duly tendered the copy of judgement dated 08.08.2001
passed by concerned court in previous suit between the plaintiff
and others including predecessor-in-interest namely Sh. Trilok
Chand Jain of defendant no.1, as Mark-A and has also tendered the
order dated 13.09.2002 passed by concerned court on an
application of the plaintiff seeking restoration of the said suit, as
Mark-B; but the plaintiff has not asked even a single question
disputing the correctness of aforesaid documents placed on record
by defendant no. 1 in his evidence. Further, aforesaid order dated
13.09.2002 passed by concerned court was duly exhibited as Ex.
DW4/1 in the testimony of summoned witness Mr. Vikram JJA,
Record Room (Civil), Tis Hazari Courts, but plaintiff did not cross-
examine the said witness as well.
53. Therefore, genuineness of judgements/orders dated
08.08.2001 and 13.09.2002, as passed in the previous suit between
plaintiff and predecessor-in-interest of defendant no. 1, have not
been disputed on behalf of plaintiff.
54. Now, perusal of judgement dated 08.08.2001 Mark A,
passed in previous civil suit bearing no. 239/2001, reveals that the
said suit was filed on behalf of plaintiff on 29.05.1985 against
Trilok Chand Jain (predecessor-in-interest of defendant no.1
herein) and Jagan Nath Jain and wife namely Pusto Devi of Jagan
Nath Jain regarding the same property in question herein i.e. plot
bearing no.12/15 measuring 200 sq. yds. situated in khasra no.937,
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Sant Nagar, Burari, Delhi, and said suit was filed for relief of
possession and permanent injunction against the aforesaid
indicated defendants. It is mentioned in the said judgment that
initially, the plaintiff had filed a suit seeking only permanent
injunction against the said defendants on 10.06.1983 but during
the hearing of the case, when the defendants took the plea that the
suit has become infructuous because apart from being owners of
plot in question, they are also in possession; the said case was
withdrawn and it appears that on 29.05.1985, the plaintiff has filed
a fresh suit seeking possession of the suit property also in addition
to seeking the relief of permanent injunction against the aforesaid
indicated defendants.
55. Perusal of the said judgment further reveals that issue no.11
in said case was framed on the basis of relief prayed for by the
plaintiff in the said suit and the said issue was “Issue No.11 –
Whether the plaintiff is entitled to the relief of possession and
permanent injunction as prayed? OPP”. It further transpires that
despite several opportunities, since the plaintiff failed to adduce
any evidence in the said matter, therefore, PE was closed vide
order dated 14.10.1997 in the said suit and whereafter Ld. Counsel
for defendant also made a submission that since the plaintiff has
not led any evidence, therefore, defendant also would not lead any
evidence and accordingly, DE was also closed vide order dated
24.11.1997. Then, after hearing the final arguments, the suit of the
plaintiff was finally dismissed on the ground that the plaintiff is
not entitled to the relief of possession and permanent injunction
because he has failed to discharge his onus to prove issue no. 11
by examining any witness.
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56. Perusal of order dated 13.09.2002 Ex. DW4/1 clearly shows
that against said judgement dated 08.08.2001 Mark A, the plaintiff
had filed an application u/o 9 Rule 9 & 13 and section 151 CPC
with the prayers to restore the suit of the plaintiff to original
number and to allow the plaintiff to lead evidence in the main suit.
But concerned court dismissed the said application on the ground
that the suit of the plaintiff has been dismissed vide judgment dated
08.08.2001 after giving findings on all the issues which were
framed in the case and it was not dismissed in default for non-
prosecution and therefore, the application for restoration was not
found maintainable in law and the said application was dismissed
subject to cost of Rs.2,000/- by concerned court.
57. So, from the aforesaid facts proved on record, it is clear that
that the earlier suit filed by the plaintiff against three persons
including the predecessor-in-interest Mr. Trilok Chand Jain of
defendant no.1 seeking the relief of possession and permanent
injunction regarding the same property in question, was dismissed
on merits after giving findings on the issues framed in the said
case.
58. As stated above, the plaintiff has neither disputed the
genuineness nor the contents of the aforesaid judgements/orders
dated 08.08.2001 and 13.09.2002 passed in the previous suit, as
placed on record by the defendant no. 1 alongwith his written
statement; and the only contention of the plaintiff in this regard is
that since the previous suit was disposed of without deciding title
and status on merits because of some alleged settlement between
the parties to the previous suit, therefore, present case filed by the
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plaintiff is not barred by res-judicata. However, the plaintiff has
miserably failed to give any basis of her aforesaid contention.
59. Pertinently, as highlighted earlier, the plaintiff has led
additional evidence in this matter even after closure of DE, but the
plaintiff never took any steps to summon any witness of alleged
compromise or summon the complete record of previous suit to
prove her version that the previous suit was decided on the basis
of compromise (in court or out of the court) or that the previous
suit was not decided on merits.
60. Interestingly, in her cross examination, PW1 specifically
admitted that she had filed a suit for possession and permanent
injunction against Sh. Trilok Chand Jain prior to the file of the
present suit and she only pleaded ignorance about the dismissal of
the said previous suit against Sh. Trilok Chand Jain vide order
dated 08.08.2001 and further denied the suggestion of defendant
no.1 about dismissal of the application u/o 9 Rule 9 CPC filed by
the plaintiff for restoration of said suit vide order dated 13.09.2002
subject to cost. Plaintiff had also replied very vaguely about
arriving at any compromise against Sh. Trilok Chand Jain and she
failed to specify any details as to when such compromise was
entered and she further failed to state whether the said compromise
with Mr. Trilok Chand Jain was in writing or not.
61. It is apt to reproduce the relevant extracts of cross
examination of PW1 at this stage, which are as under:-
“Prior to this suit I had also filed another suit for
possession and permanent injunction against Sh. Trilok
Chand Jain. In the said suit Sh. Trilok Chand Jain had
compromised and agreed with me not to enter into my
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plot. I do not remember as to whether my suit for
possession and permanent injunction as filed against Sh.
Trilok Chand Jain was dismissed on 08.08.2001. It is
wrong to suggest that after dismissal of the suit against Sh.
Trilok Chand Jain I have moved an application under
Order 9 Rule 9 CPC which has also been dismissed by the
Court of Ms. Kaveri Baweja, the then Ld. Civil Judge
Delhi on 13.09.2002 subject to cost of Rs.1000/-. I do not
remember in which year I had filed the suit for possession
and permanent injunction against Sh. Trilok Chand Jain.
I do not remember the date, month and year when I
compromised the matter with Sh. Trilok Chand lain. I do
not remember whether the compromise was in writing or
not. I might have told to the concerned Court, where the
suit against Sh. Trilok Chand Jain was pending. about the
compromise as entered between me and Sh. Trilok
Chand Jain. I do not remember in which year Sh. Trilok
Chand Jain handed over the possession of my plot to me.
Vol. However, it was further agreed that he would not
enter upon my property. There is no written documents to
the effect of handing over possession by Sh. Trilok Chand
lain to me after the compromise.”
62. In view of the aforesaid discussion, the present suit filed by
the plaintiff seeking the relief of possession as well as injunction
against successor-in-interest (i.e. defendant no.1/Bir Sain Jain
herein) of defendant no. 1 Mr. Trilok Chand Jain in the said
previous suit, appears to barred by the principle of res-judicata as
per provisions contained under section 11 of Civil Procedure Code
(CPC).
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63. Section 11 of CPC states that ‘No Court shall try any suit or
issue in which the matter directly and substantially in issue has
been directly and substantially in issue in a former suit between
the same parties, or between parties under whom they or any of
them claim, litigating under the same title, in a Court competent to
try such subsequent suit or the suit in which such issue has been
subsequently raised, and has been heard and finally decided by
such Court’.
64. Therefore, it is clear that the matter in issue in the present
suit (i.e. whether the plaintiff is entitled to relief of possession and
injunction) was also a matter directly and substantially in issue in
the former suit, which was between the plaintiff and one Mr. Trilok
Chand Jain (under whom defendant no.1 herein is claiming his
title/interest in the suit property in question) and said matter
regarding possession and injunction was also regarding the very
same property. Since the former suit between plaintiff and
predecessor-in-interest of defendant no. 1 herein, involving
directly and substantially same issues, has already been heard and
decided by a competent court of jurisdiction, accordingly, the
present suit of the plaintiff is clearly barred by the principle of res-
judicata and suit is liable to dismissed on this ground alone.
65. Hence, this issue is decided in favour of defendant no.1 and
against the plaintiff.
Issue no.2 – Whether the present suit of the plaintiff is within
limitation? OPP
66. The onus to prove this issue was on the plaintiff. In this
regard, in the written submissions/arguments of plaintiff, it is
mentioned that plaintiff has specifically alleged in this case that
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she was initially in possession of the property and only after filing
of the present suit, the plaintiff came to know that defendant no.1
has raised unauthorized construction on the plot in question. It is
further submitted that defendant no. 1 has failed to produce any
evidence in support of his case to the effect that he was in
possession of the property in question and plaintiff was never in
possession of the suit property. It is further stated on behalf of
plaintiff that during her cross examination, the plaintiff has clearly
stated that predecessor-in-interest namely Trilok Chand Jain had
compromised the matter with the plaintiff and agreed that he will
not enter in the plot of the plaintiff. Therefore, it is submitted that
the suit is not barred by limitation.
67. On the other hand, during the course of arguments, Ld.
Counsel for defendant no.1 submitted that it is admitted position
that earlier the plaintiff has filed a suit for possession and
permanent injunction against the erstwhile owner Trilok Chand
Jain (who is predecessor-in-interest of defendant no.1) on
29.05.1985, and in the said suit, the plaintiff had claimed relief for
possession against the defendants therein regarding the same
property. Ld. Counsel further submitted that inevitable conclusion
from the said facts on record is that on the date of filing of the said
suit i.e. 29.05.1985, plaintiff was not in possession of the suit
property and in the entire present plaint, plaintiff has not disclosed
as to when she came into the possession of the plot/property in
question after 29.05.1985. Therefore, it is submitted that the
present suit for possession filed on behalf of plaintiff after more
than 20 years after her admitted dispossession (i.e. sometime prior
to 1985), is clearly barred by limitation. Ld. Counsel further
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submitted that since the relief of possession is barred by limitation,
therefore, the plaintiff is not entitled to the relief of permanent
injunction as well, as sought by the plaintiff in her plaint.
68. As discussed during the findings on issue no.1, from the
facts proved on record by defendant no.1, it is clear that plaintiff
has earlier filed a suit specifically seeking the relief of possession
against three defendants including predecessor-in-interest namely
Trilok Chand Jain of defendant no.1 herein and said suit was filed
by the plaintiff on 29.05.1985. This fact clearly establishes that the
plaintiff was not in possession of the suit property as on the date
of filing of the previous suit which was 29.05.1985.
69. The plaintiff has made only bald averments in her plaint as
well as in her evidence that the said suit was compromised between
her and defendants in that suit. The said fact has not been proved
on record because as already discussed, perusal of the
judgment/order dated 08.08.2001 and 13.09.2002 passed in the
previous suit, clearly reveals that no such compromise ever took
place between the plaintiff and defendants of that previous suit and
rather, the matter was contested on behalf of defendants in that
case by raising objections in the main suit as well as in the
restoration application.
70. Accordingly, this court finds merit in the submissions
advanced by learned counsel for defendant No. 1 that in view of
the plaintiff’s admission that she had earlier instituted a suit for
possession in the year 1985 (which was ultimately dismissed in
2001, and restoration application in said was also dismissed in
September 2002), in respect of the same property, it was incumbent
upon the plaintiff to clearly plead and establish the point of time at
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which she allegedly came back into possession of the suit property.
Had the plaintiff disclosed that she obtained possession at any time
subsequent to the institution of the earlier suit, such pleadings
could have demonstrated the accrual of a fresh cause of action in
her favour to seek the relief of injunction and/or possession in the
present suit instituted in 2007. If it were shown that she had come
into possession after 1985, then the present suit (initially filed as
one for simpliciter injunction in 2007 on the basis of her claimed
exclusive possession, followed by her allegation of dispossession
during its pendency and the subsequent amendment seeking relief
of possession), might have been maintainable.
71. In this regard, the plaintiff even during her cross
examination failed to state as to when the possession of the
property in question was handed over by Trilok Chand to her and
further stated that there are no written documents to the effect of
handing over the possession of the suit property by said Trilok
Chand Jain to her after the alleged compromise. It is apt to
reproduce the relevant extracts of cross examination of PW-1,
which are as under:-
“I do not remember the date, month and year when I
compromised the matter with Sh. Trilok Chand lain. I do not
remember whether the compromise was in writing or not. I
might have told to the concerned Court, where the suit
against Sh. Trilok Chand Jain was pending. about the
compromise as entered between me and Sh. Trilok Chand
Jain. I do not remember in which year Sh. Trilok Chand Jain
handed over the possession of my plot to me. Vol. However,
it was further agreed that he would not enter upon myCS SCJ No. 593801/2016 VIJAY LAXMI Vs. BIR SAIN JAIN & ORS. PAGE NO. 30 OF 50
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property. There is no written documents to the effect of
handing over possession by Sh. Trilok Chand lain to me
after the compromise. I know about this for last 7 years. I
am not in possession of the suit property at present. It is
correct that I have wrongly stated in my affidavit that I am
in possession of the suit property. 1 was not in possession of
the suit property on 10.01.2013 when the affidavit in
evidence was prepared.”
72. The plaintiff has failed to plead or establish that she regained
possession of the suit property at any time after instituting the
earlier suit in 1985. In the absence of specific averments or cogent
evidence on this aspect, it cannot be concluded that she re-entered
or resumed possession of the property after her alleged
dispossession prior to 1985 and before the institution of the present
suit.
73. Moreover, as stated earlier that despite taking the specific
objection by the defendant no. 1 regarding the issue of limitation
after delineating of the entire facts in his WS, the plaintiff did not
even file replication to traverse the averments made in WS, which
tantamount to be deemed admission on her part to the new facts
stated in WS of defendant no. 1 on this issue.
74. Now, as per Limitation Act, 1963 the suit for seeking
possession of immovable property has to be filed within the period
of 12 years from the date of dispossession, whereas the facts
proved on record establish that the plaintiff has lost her possession
over the suit property somewhere prior to 29.05.1985 i.e. prior to
the date of filing of previous suit by the plaintiff against three
persons including predecessor-in-interest of defendant no.1 and
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nothing has come on record to even prima facie indicate that the
plaintiff has regained her possession over the property after her
initial dispossession prior to 1985. Therefore, in the absence of any
evidence on record to prove that the plaintiff was in possession of
the suit property within 12 years prior to filing of the present suit
against defendant no.1, the relief of possession sought by the
plaintiff in this suit is barred by limitation.
75. Since the other reliefs sought by the plaintiff in this case are
merely consequential to the principal relief of possession, and
since the claim for possession is barred by limitation, the entire
suit is consequently rendered barred by limitation.
76. Accordingly, this issue is also decided against the plaintiff.
Issue No.3 – Whether the suit is bad for non-joinder of necessary
parties? OPD
77. Onus to prove this issue was on the defendants. Although
the issue as framed does not specifically indicate which defendant
bears the onus, in light of the defence set out in the written
statements, the burden appropriately rests on defendant No. 1
alone.
78. The basic objection in this regard taken by defendant no.1
in his written statement was that since defendant no.1 has already
transferred the possession of the suit property by
donating/transferring it to registered society namely Sri Digambar
Jain Samaj, Burari, therefore, in the absence of possession of
defendant no.1 over the suit property, the present suit seeking
possession is not maintainable in view of non-joinder of necessary
party i.e. Sri Digambar Jain Samaj, Burari.
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79. However, firstly, the defendant No. 1 has failed to place on
record any document evidencing the transfer of the suit property
or delivery of its possession in favour of the said society, Sri
Digambar Jain Samaj. Secondly, the plaintiff has specifically
pleaded her cause of action for the reliefs of injunction and
possession only against defendant No. 1. Thirdly, mere assertion
of an alleged transfer by defendant No. 1 in favour of Sri Digambar
Jain Samaj Society does not, by itself, render the said society a
necessary party to the present proceedings, particularly when
defendant No. 1 has not even disclosed the date of such alleged
transfer, because any transfer of the suit property or its possession
by Defendant No. 1 in favour of Sri Digambar Jain Samaj Society,
if effected after the institution of the present suit, would be hit by
Section 52 of the Transfer of Property Act and, therefore, would
not affect the plaintiff’s rights in the pending litigation.
80. Further, as mentioned earlier that during the pendency of
the present suit, the plaintiff has filed an application u/o 1 Rule 10
CPC to implead Mr. Trilok Chand Jain and Sri Digambar Jain
Samaj Society in the present matter on 13.11.2018, which
application came to be dismissed vide order dated 31.01.2019 of
this court. In the said order, it was observed that in view of overall
facts, the presence of proposed defendants appears to be not
necessary for the effectual and complete adjudication of the
dispute involved in the present suit between the parties. As the
order dated 31.01.2019 has attained finality, the present issue may
even be treated as having become infructuous.
81. Accordingly, the present issue is decided against the
defendant no. 1 and in favour of the plaintiff.
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Issue No.4 – Whether the suit of the plaintiff is barred u/s 140 of
DP Act? OPD-2 (to be considered as OPD-3/SHO in view of
narration given in para no. 2 above)
82. Onus to prove this issue was on defendant no.3/SHO.
Defendant no. 3/SHO in its written statement has taken the
objection that before filing any suit against defendant no.3/SHO
concerned, it is mandatory for a party to serve a mandatory notice
upon it as per Section 140 of the DP Act and, therefore, the present
case filed without serving the prior notice is barred by Section 140
of DP Act.
83. During the cross examination of PW1/plaintiff by defendant
no.3/SHO concerned, PW1/plaintiff admitted that it is correct that
she has not given any notice to Delhi Police u/s 138 & 140 of Delhi
Police Act.
84. But in view of the court, non-serving of any prior notice u/s
140 of DP Act upon defendant no. 3/SHO concerned prior to filing
of this case was not fatal for the case of plaintiff because defendant
no. 3/SHO has been made only a proforma party in this case and
no relief has been sought against defendant no. 3/SHO herein.
Accordingly, the present issue is decided against defendant no.
3/SHO and in favour of plaintiff.
Issue No. 6 and 7
Issue No. 6 – Whether the plaintiff is entitled for decree of
possession as prayed for.? OPP
Issue No. 7 – Whether the plaintiff is entitled for decree of
permanent injunction as prayed for? OPP
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85. For the sake of convenience, these two issues are taken up
before discussion on issue no. 5. Further, since both these issues
are inter-connected and involve common discussion of the facts
and law, therefore, these are taken up together.
86. To be held entitled for relief of possession coupled with
consequential injunction, it was must for the plaintiff to have
proved either her title or her prior settled possession over the
property in question. Though the plaintiff has not mentioned
specifically so in her plaint, but in the application u/o 6 rule 17
filed on behalf of plaintiff during the pendency of the suit, plaintiff
specifically alleged that at the time of filing the suit, the suit
property in question was lying vacant. So, as per the case of
plaintiff the suit property was a vacant piece of land and as per
authoritative pronouncement of Hon’ble Supreme Court in
Anatula Sudhakar Vs. P. Buchi Reddy, (2008) 4 SCC 594, in
disputes involving vacant piece of land, the principle is that the
possession follows title. Accordingly, in the facts and
circumstances of the present case, the plaintiff was required to
establish her ownership of the suit property in order to substantiate
her settled possessory title. Only upon proving such ownership
could she claim entitlement to the relief of possession and the
consequential injunction sought in the present proceedings.
87. In the plaint, plaintiff has claimed herself as owner of the
suit property on the basis of sale documents dated 23.09.1981
executed by the erstwhile owner Mr. Om Prakash in favour of
plaintiff, who in turn had allegedly purchased the same from the
initial owner Mr. Kartar Singh by way of sale deed.
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88. In this regard, the plaintiff has placed on record the original
sale deed Ex.PW1/B allegedly executed by initial owner Mr.
Kartar Singh in favour of predecessor-in-interest namely Sh. Om
Prakash of the plaintiff. But interestingly, the plaintiff has placed
on record only the copies of sale documents dated 30.09.1981, vide
which the plaintiff is stated to have purchased the property in
question from said Sh. Om Prakash. Though in her evidence
affidavit, plaintiff has exhibited general power of attorney,
agreement to sell, affidavit, Will and money receipts all dated
30.09.1981 as Ex. PW1/C, Ex. PW1/D, Ex. PW1/E, Ex. PW1/F
and Ex. PW1/G respectively, however, when the said documents
were tendered in evidence before the court, same were de-
exhibited and were marked as Mark-A to Mark-E respectively on
the submission of plaintiff/PW-1 to the effect that original of these
documents are not available with her.
89. So, the said documents being photocopies cannot be stated
to be proved as per the Evidence Act because the plaintiff has
failed to satisfy the pre-requisite for leading secondary evidence as
per section 65 of the Evidence Act. Further, if the original
documents were not available with the plaintiff at the time of her
evidence, the plaintiff could have moved an application to bring
the original documents on record at any subsequent stage during
the trial.
90. Therefore, in the absence of any admissible documents
showing the ownership of the plaintiff over the property in
question, the plaintiff clearly cannot be held entitled for the relief
of possession and injunction as prayed for by her in her plaint.
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91. If for the sake of arguments, the aforesaid documents i.e.
general power of attorney, agreement to sell, affidavit, duly
registered Will and money receipts, marked as Mark-A to Mark-E
respectively are read in favour of the plaintiff, even then, it is
settled position of law that these documents cannot confer any title
on a person over immovable property, because ownership of the
immovable property worth more than Rs.100/- can only be
transferred by way of registered sale deed as per section 54 of
Transfer of Property Act, 1882. Reliance in this regard can be
placed upon authoritative pronouncement of judgment of Hon’ble
Supreme Court in Suraj Lamp & Industries (P) Ltd. vs State Of
Haryana & Anr, AIR 2012 SC 206.
92. Therefore, the plaintiff has evidently failed to establish,
through cogent documentary evidence, any right, title, or interest
in the suit property in question. Furthermore, none of the revenue
records summoned and produced in evidence in the present case
reflect the plaintiff’s name as rightful owner/possessor in relation
to the suit property. Though, it is settled position of law that any
entries in revenue record can never be the proof of ownership of
any person over the immovable property, however, said fact has
been highlighted to indicate that the plaintiff has failed to bring
any iota of evidence to show her ownership over the property in
question and to show that she is entitled for the relief of possession
and injunction as sought by her in her plaint.
93. In addition, in the said alleged sale documents dated
30.09.1981 executed by erstwhile owner in favour of plaintiff, the
description of property purchased by the plaintiff is indicated as
piece of land measuring 200 sq. yds. bearing plot no.12/15 Khasra
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no.937 situated in Village Burari, Delhi. Whereas in the present
plaint the plaintiff has additionally mentioned that the said plot is
situated in “Gali No.8, Sant Nagar” which description is not
mentioned in the aforesaid sale documents of the plaintiff. Further,
from the bare perusal of the site plan Ex. PW1/A relied upon by
the plaintiff, the proper identification of the property is not
possible due to non-mentioning of any identifiable landmark place
and exact direction and distance of suit property from said
landmark. During the cross-examination, plaintiff clearly admitted
that the total area of khasra no. 136/10/2 is 03 bighas and 10 biswas
and further admitted that the plot number in the above mentioned
khasra number has never been given by any Govt. Authority.
Plaintiff even expressed her ignorance about site plan Ex. PW1/A
during her cross-examination by stating that she does not know
what is document Ex. PW1/A.
94. Moreover, no evidence has been led on behalf of plaintiff to
even prove that suit property forms part of old khasra no. 937 and
to lead evidence on this aspect was important because specific case
of defendant no. 1 was that the suit property forms part of old
khasra no. 1060.
95. Further, in her amended plaint, the plaintiff has claimed the
suit property was initially part of old khasra no.937, which khasra
number 937 is now new Khasra No. 136/10/2 after chakbandi. It
will be discussed later while making discussion on issue no.5 that
the plaintiff has even failed to prove that the said khasra no.937
has been changed to new khasra no.136/10/2 as allegedly claimed
by the plaintiff in her petition.
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96. Therefore, even due to lack of proper identification of suit
property, the plaintiff is not entitled to any relief.
97. As discussed earlier while giving findings on issue no. 1 &
2 that the plaintiff has suppressed complete facts regarding her past
litigation with predecessor-in-interest namely Trilok Chand Jain of
the defendant no. 1, which facts were brought and proved on
record by defendant no. 1 by placing on record judgement dated
08.08.2001 Mark A and order dated 13.09.2002 Ex. DW4/1. The
plaintiff has baldly denied the suggestion in her cross-examination
that her application of restoration of previous civil suit filed by her
against Mr. Trilok Chand Jain & Ors. was dismissed with cost vide
order dated 13.09.2002, which denial clearly shows that the
plaintiff has deposed against the record.
98. In addition, the plaintiff has made bald averments in the
plaint as well as her evidence regarding the factum of compromise
in the past with predecessor-in-interest namely Trilok Chand Jain
of the defendant no. 1, which averments were against the facts
proved on record by defendant no. 1. Moreover, when questioned,
the plaintiff herself gave evasive responses regarding the alleged
past compromise with Mr. Trilok Chand Jain, professing ignorance
as to the date, month, or year of such compromise and even as to
whether the compromise had been reduced into writing or not.
99. These facts on record clearly put a dent on the credibility of
plaintiff as a witness.
100. At this stage, the court deems it appropriate to mention other
false/wrong submissions/averments made by the plaintiff in her
plaint as well as during her evidence, which further impeaches the
credibility of the plaintiff as witness and which disentitles her to
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seek any relief from this Court. The necessary facts in this regard
are being discussed in ensuing paragraphs.
101. As stated, the plaintiff has initially filed the present suit on
08.08.2007 by specifically stating in original plaint that the suit
property falls in khasra no.937 and not in khasra no.136/10/2 and
it was specifically stated that the property of defendant no.1 forms
part of khasra no.136/10/2 and therefore, the suit property shown
in the site plan, which is part of kharsa no.937, pertains to plaintiff.
With these averments, the plaintiff has specifically sought a
declaration to the effect that the suit property falls in khasra no.937
instead of khasra no.136/10/2. It is also highlighted earlier that the
defence of the defendant no. 1 was that the suit property falling in
old khasra no. 1060 belongs to defendant no.1 and in his initial WS
itself, defendant no. 1 has relied upon one report dated 30.05.1983
so as to plead that old khasra number 1060 has changed now to
new khasra no.136/10/2.
102. Even in the demarcation report dated 19.12.2007 filed by
Tehsildar concerned in compliance of order dated 01.09.2007 of
this court, it has been specifically mentioned that as per the
revenue record, the suit property presently falls in khasra
no.136/10/2. Later on, the plaintiff after relying upon the RTI reply
of revenue department dated 23.07.2008 Ex.PW1/H stated that the
an RTI was filed by her husband Phiraya Lal with the Revenue
Department and it was revealed vide said RTI reply dated
23.07.2008 that old khasra no. 937 is now known as khasra no.
136/10/2. Said reply dated 23.07.2008 was also exhibited during
the evidence of PW2 as Ex.PW2/1. Perusal of said reply dated
23.07.2008 reveals that vide said RTI, details of new Khasra
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number after chakbandi in respect of old khasra number 937 were
sought by husband of the plaintiff and in reply to said question, the
new khasra numbers of old khasra number 937 after chakbandi
were mentioned as 136/10/1/1, 10/1/2, 10/2, 10/3, 10/4 and
137/6.
103. It is further clear from the record that said RTI reply dated
23.07.2008 was made the basis by the plaintiff to move an
application u/o 6 Rule 17 CPC with the averments that by way of
said RTI reply, plaintiff has come to know that the new khasra
number pertaining to old khasra no. 937 is khasra number 136/10/2
and accordingly, believing the said version of the plaintiff, the
court vide order dated 05.05.2012, allowed the said application of
the plaintiff and allowed her to amend her plaint.
104. But interestingly, the said factum about the knowledge of
plaintiff about new khasra number in respect of old khasra number
937 only through RTI reply dated 23.07.2008 is completely against
the facts proved on record. In this regard, the defendant no. 1 in
her written statement has mentioned about some past litigations
initiated by husband Phiraya Lal of the plaintiff against few
persons in the year 1994 vide civil suit no.32/94, which civil suit
was dismissed by concerned court on 19.01.2005. Though the
purpose of defendant no. 1 in mentioning the factum of past
litigations by husband of plaintiff, was to highlight the habit of
plaintiff and her husband in initiating false and frivolous litigations
against various people so as to harass them, however, the details of
said past litigation reveals that plaintiff/her husband had the
knowledge regarding new khasra number in respect of old khasra
no. 937 way back in the year 1994 itself.
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105. In this regard, defendant no.1, during his evidence
summoned DW-2 Bal Krishan Sharma (a private witness who was
one of the defendants in said past case filed by husband of plaintiff)
and DW-2 tendered the certified copy of judgment dated
19.01.2005 passed in said civil suit as Ex.DW2/1. Despite
opportunity, the said witness DW-2 was not cross examined on
behalf of plaintiff and therefore, the genuineness of said document
Ex.DW2/1 remained uncontroverted.
106. Now perusal of Ex.DW2/1 reveals that a civil suit bearing
no.32/94 was filed by husband of the plaintiff against three persons
(including witness DW-2 herein) seeking relief of permanent and
mandatory injunction as well as a decree of possession in respect
of a plot bearing no.12/14 measuring 200 sq. yds. falling in khasra
no.937, Gali No.8, situated in Sant Nagar, Burari, Delhi. Perusal
of the site plan Ex.PW1/A as filed by the plaintiff in the present
case indicates that the said plot bearing no.12/14 is immediately
adjacent to the suit property in question in this case and is stated
on the south side of the suit property in question and, therefore, the
same is also part of khasra no.937 as per the case of the plaintiff.
107. But interestingly, in para no.2 of the said judgment Ex.
DW2/1, while mentioning the brief case of the plaintiff in that case,
it has been recorded that the new number of the said khasra no.937
is 136/10/3. It is apt to reproduce para no.1 of the said judgment
dated 19.01.2005 Ex. DW2/1, as passed by the concerned court, in
the aforesaid suit filed in the year 1994 by husband of the plaintiff
against few other persons and the same is as under:-
“Plaintiff has filed a suit for permanent and mandatory
injunction restraining defendant no.3 from raising andCS SCJ No. 593801/2016 VIJAY LAXMI Vs. BIR SAIN JAIN & ORS. PAGE NO. 42 OF 50
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constructing any plot ad-measuring 200 Sq. Yds in
Khasra no. 937, Plot No. 12/14, new Khasra
no.136/10/3 and Gali no.8, situated in Sant Nagar, Burari,
Delhi and from parting with, the possession of any 3 rd
person and directing defendant no.1 and 2 to demolish
unauthorised and illegal construction as shown in the site
plan and restore the plot in its original position and also
for possession of the said plot.”
108. Bare perusal of the said judgment Ex. DW-2/1 reveals that
it was clearly within the knowledge of husband of the plaintiff way
back in the year 1994 itself that the new khasra number of old
khasra no.937 is 136/10/3, whereas in the present case filed in the
year 2007, the plaintiff has clearly alleged that she had come to
know about the new khasra number bearing 136/10/2 in respect of
old khasra no.937 only on the basis of an RTI reply of revenue
department, as received by her husband in the year 2008.
109. The aforesaid facts on record clearly indicates that the
plaintiff has made completely false averments in her application
for amendment and by making such false averments, she has been
able to obtain an order for amendment of plaint from this court and
reiterated the averments regarding new khasra number in her plaint
as well as evidence. The plaintiff made the aforesaid false
averments for reasons best known to her, however, it appears that
the same were prompted by the unfavourable demarcation report
dated 19.12.2007 submitted by the concerned Tehsildar in
compliance with the Court’s order dated 01.09.2007, wherein it
was recorded that the suit property falls within Khasra No.
136/10/2.
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110. Notably, in the RTI reply dated 23.07.2008 issued by the
Revenue Department, the new khasra numbers corresponding to
old Khasra No. 937 after chakbandi were specified as Khasra Nos.
136/10/1/1, 136/10/1/2, 136/10/2, 136/10/3, 136/10/4, and 137/6.
Despite this, the plaintiff amended her plaint by mentioning only
Khasra No. 136/10/2 as the new khasra number in place of old
Khasra No. 937, apparently with the intention of aligning her
pleadings with the demarcation report dated 19.12.2007, which
stated that the suit property formed part only of Khasra No.
136/10/2.
111. Therefore, the conduct of the plaintiff in suppressing and
concealing material facts in general as highlighted above, coupled
with making the false averments to the effect that she has come to
know about new khasra number in respect of old khasra no.937
only through an RTI reply dated 23.07.2008 received by her
husband from the revenue department, completely impeaches the
credibility of plaintiff as a witness and completely demolishes her
case. Due to such suppression and wrong averments, the plaintiff
has been able to drag the defendants in this litigation for more than
one and a half decade. These facts on record clearly disentitles the
plaintiff to seek the equitable relief of possession and injunction as
sought by her in this case. Therefore, both the issues no. 6 & 7 are
decided against the plaintiff.
Issue No.5 – Whether the plaintiff is entitled to a decree of
declaration as prayed for? OPP
112. Onus to prove this issue was on the plaintiff. In this regard,
in view of the discussion made while giving findings on issue no.
6 and 7, it is clear that the plaintiff has failed to prove her right,
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interest or title over the suit property in question by producing the
admissible documents of her title and therefore, she has failed to
show her locus to seek relief sought by way of prayer no.(a) made
in her plaint, in pursuance of which prayer, the present issue was
framed. Therefore, only on the basis of this ground, the plaintiff is
not entitled to seek any adjudication on the present issue. However,
this Court deems it appropriate to discuss this issue in brief on
merits and on the basis of evidence led on behalf of parties.
113. In this regard, the entire evidence led on behalf of plaintiff
is restricted to the aspect that old khasra no.937 has been given
new khasra no.136/10/2 but, as stated above, the plaintiff has failed
to lead any evidence to show that the suit property as indicated in
the site plan forms part of khasra no. 937. In addition, perusal of
the evidence, which will be discussed in ensuing paragraphs,
reveals that the plaintiff has even failed to prove that the old khasra
number 937 has been changed to new khasra no.136/10/2 after
chakbandi.
114. Firstly, the plaintiff has alleged her knowledge about the
new khasra number in respect of old khasra no.937 on the basis of
RTI reply dated 23.08.2007 Ex.PW2/1, but as discussed earlier, in
the said reply, the revenue department has given various new
khasra numbers in respect of old khasra no.937, which new khasra
numbers are 136/10/1/1, 136/10/1/2, 10/2, 10/3, 10/4. So, the claim
of the plaintiff that the suit property in question is part of
specifically khasra no.136/10/2, is not made out even as per the
case set up by plaintiff herself in the amended plaint. In other
words, plaintiff has failed to give any basis as to how she has
assumed that the suit property i.e. plot bearing no.12/15 falling in
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old khasra number 937, forms part of new khasra no.136/10/2 only
and not part of any other new khasra numbers as indicated in the
RTI reply. Further, as stated above, in the previous suit bearing
no.32/94 filed by husband of the plaintiff against few persons, the
adjacent plot bearing no.12/14 (the plot indicated as immediately
adjacent towards south of the suit property in site plan Ex. PW1/A
in this case), is stated to be part of new khasra no.136/10/3.
115. Now, various witnesses from the Revenue Department have
been examined on behalf of plaintiff to prove new khasra number
in respect of old khasra no.937. In this regard, PW2 Sh. Yogesh
Kumar, Patwari has specifically stated that he has brought the
summoned record i.e. Khatoni of village Burari for the year 1993-
94 in respect of khasra no. 136/10/1/1, 136/10/1/2, 10/2, 10/3, 10/4
and as per the said witness, the old khasra number in respect of the
said khasra numbers is khasra no. 937 and said khatoni was
exhibited as Ex.PW2/2 (colly.) during evidence of said witness.
But PW-2, in his cross examination clearly as under-
“it is correct that the old Khasra numbers have not
been specified in Ex.PW2/2 (colly) specifically with
regard to Khasra no. 136/10/1/2. It is correct that from the
record as placed by me it is not clarified that the khasra
numbers 136/10/1/1, 10/1/2, 10/2, 10/3, 10/4 and 137/6 are
the part of old Khasra no. 937.”
116. Similarly, PW3 also tendered various documents in his
evidence pertaining to khatoni, chakbandi and field book of old
khasra no.937 & 1060 but perusal of the said documents nowhere
clarifies that the suit property in question specifically falls in new
khasra no.136/10/2. During cross examination of said witness
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PW-3, even the court asked a specific question that whether khasra
no.937 & 938 were changed to khasra no.136 & 136/10/2,
whereupon witness stated that he has no knowledge about the
same.
117. Likewise, the evidence of PW4 Sh. Santosh Dutt Tiwari,
Patwari office of Civil Lines, Burari also could not establish that
the suit property allegedly falling in old khasra no.937 became part
of new khasra no.136/10/2. The relevant portion of cross
examination of the said witness is being reproduced as under:-
“I cannot say which land and kasra no. was allotted in
lieu of khasra no. 1060 or 937. (witness is shown the first
page of Ex. PW4/2 and asked by the court whether previous
khasra numbers as mentioned in column no. 1938-937 were
changed to new khasra no. 136/10/2 as mentioned in column
no. 2, witness stated that new khasra number may be one of
the new khasra numbers but it can not besaid with
certainty that how many khasra numbers were made from
old khasra no. 938-937, that can be ascertained from old
sizra/map)”
118. Therefore, from the aforesaid evidence on record, the
plaintiff has firstly failed to prove that the suit property i.e. plot
bearing no.12/15, Gali No.8, Sant Nagar is part of old khasra no.
937 and plaintiff has further failed to prove that the old khasra no.
937 has changed to new khasra no.136/10/2. Accordingly, this
issue is also decided against the plaintiff.
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Issue No. 8 – Relief
119. Since, the issues no. 1, 2, 5, 6 and 7, have been decided
against the plaintiff, therefore, the plaintiff is not entitled to any
relief.
Imposition of cost –
120. Before parting with the matter, it is pertinent to observe that,
in light of the findings recorded in paragraphs 97 to 111
hereinabove, it is evident that the plaintiff made incorrect
averments before this Court. It is also clear that the plaintiff has
deliberately suppressed the true facts about the disposal of
previous litigation between her and three persons including the
predecessor-in-interest of defendant no.1, on merits and falsely
claimed that the said suit was disposed of on account of
compromise between the plaintiff and predecessor-in-interest of
defendant no.1. On the basis of such misstatements and
suppression of facts, plaintiff has initiated this second round of
litigation against the defendants herein and also succeeded in
prolonging the present litigation for over one and a half decades,
despite having neither any equity nor any valid cause of action in
her favour. Consequently, this Court finds the present suit to be
wholly frivolous.
121. Although the plaintiff’s conduct in making incorrect and
false averments in her plaint and in her evidence renders her prima
facie liable for perjury, but the court is restraining itself to initiate
perjury proceedings against the plaintiff. However, in view of the
authoritative pronouncements of the Hon’ble Supreme Court
passed in various cases including Ramrameshwari Devi Vs.
Nirmala Devi & Ors., (2011) 8 SCC 249, the court deems it
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appropriate to impose appropriate cost while dismissing the
present suit filed by the plaintiff. Before quantifying cost, it would
be apt to mention the following observations o Hon’ble Supreme
Court in the judgment of Maria Margadia Sequeria Fernandes &
Ors. Vs. Erasmo Jack De Sequeria (D) Tr. Lrs.& Ors. (2012) 5
SCC 370 –
“82. This Court in a recent judgment in Ramrameshwari
Devi and Others (supra) aptly observed at page 266 that
unless wrongdoers are denied profit from frivolous
litigation, it would be difficult to prevent it. In order to curb
uncalled for and frivolous litigation, the Courts have to
ensure that there is no incentive or motive for uncalled for
litigation. It is a matter of common experience that Court’s
otherwise scarce time is consumed or more appropriately,
wasted in a large number of uncalled for cases. In this very
judgment, the Court provided that this problem can be
solved or at least be minimized if exemplary cost is imposed
for instituting frivolous litigation. The Court observed at
pages 267-268 that imposition of actual, realistic or proper
costs and/or ordering prosecution in appropriate cases
would go a long way in controlling the tendency of
introducing false pleadings and forged and fabricated
documents by the litigants. Imposition of heavy costs would
also control unnecessary adjournments by the parties. In
appropriate cases, the Courts may consider ordering
prosecution otherwise it may not be possible to maintain
purity and sanctity of judicial proceedings.”
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122. So, the Court is of the opinion that imposition of exemplary
cost on the plaintiff in the present matter is not only desirable but
mandatory duty to cast upon the court. Accordingly, the plaintiff is
burdened with the cost of Rs. One lakh (out of which the plaintiff
shall pay Rs. 50,000/- to defendant no. 1 and plaintiff shall deposit
Rs. 50,000/- with District Legal Service Authority, Central
District, Tis Hazari Courts, Delhi).
123. In view of the aforesaid discussion, the suit of the plaintiff
qua defendant no. 1, 3 & 4 stands dismissed with cost of Rs. One
lakh (out of which the plaintiff shall pay Rs. 50,000/- to defendant
no. 1 and plaintiff shall deposit Rs. 50,000/- with District Legal
Service Authority, Central District, Tis Hazari Courts, Delhi).
Plaintiff shall pay/deposit the said cost within 02 months from
today. Suit qua defendant no. 2/Sumit Jain has already been
dismissed vide order dated 19.03.2008 of the court.
124. Decree sheet be prepared accordingly.
Announced in the open Court Digitally
signed by
on this 18th Day of February, 2026 Gopal Gopal Krishan
Date:
Krishan 2026.02.18
15:26:52
+0530
(GOPAL KRISHAN)
JSCC/ASCJ/GJ-01 (CENTRAL)
TIS HAZARI COURTS/DELHI
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