Delhi District Court
Praful Kumar Shahi vs Narain Dass on 8 April, 2026
IN THE COURT OF SH AKBAR SIDDIQUE,
DISTRICT JUDGE 04, NORTH DISTRICT
ROHINI COURTS : DELHI
CS DJ/58044/2016 CNR no. DLNT010003282013
SHRI PRAFUL KUMAR SHAHI,
S/O SHRI S.N. SHAHI
R/O HOUSE NO. 268, GALI NO.6/5,
B-BLOCK, MUKUNDPUR PART-I,
BAZAR SITA RAM,
DELHI-110006.
...........Plaintiff
Versus
1. SHRI. NARAIN DASS (SINCE DECEASED)
THROUGH HIS LEGAL HEIR
(I) SMT. YADO
W/O LATE SHIR NARAIN DASS
(II) MADAN MOHAN
W/o Sh. Rambir Yadav
(III) BHIM SEN
S/O LATE SHRI NARAIN DASS
(IV) DHARAM SINGH
S/O LATE SHRI NARAIN DASS
(V) KANWAR SEN
S/O LATE SHRI NARAIN DASS
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ALL R/O HOUSE NO. 1362, GALI RAVI DASS,
BAZAR SITA RAM,
DELHI-110006.
2. SHRI. B.D DHAWAN
S/o Sh. L.R DHAWAN,
R/o 228-229, POCKET NO. A-2,
SECTOR-8, ROHINI, DELHI-110085.
3. Sh. AJAY KUMAR
S/o Sh. AVADH KISHORE,
R/o L-2B/68, MOHAN GARDEN,
UTTAM NAGAR, NEW DELHI-110059
4. SHRI SHASHI KUMAR,
S/O SHRI AVADH KISHORE
R/o HOUSE NO. 23, SINGHALPUR VILLAGE,
NEAR SHALIMAR BAGH,
DELHI-110088.
........Defendants
Date of Institution 05.01.2013
Date of Final Arguments 16.03.2026
Heard
Date of Pronouncement of 08.04.2026
Judgment
JUDGMENT
1. By way of this judgment, I shall decide the present suit filed by
the Plaintiff seeking following reliefs: –
a. Pass a decree of Specific Performance in favor of the
Plaintiff and against the Defendant No. 1 directing him
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to execute the sale documents of the suit property, in
favor of the Plaintiff by completing all the formalities
which are necessary for the transfer of the suit property
i.e. DDA Janta Flat bearing No. 33-B, in Block BK-1,
Shalimar Bagh, Delhi-110 088, correctly shown in the
site plan attached with the plaint,
b. Pass a decree of declaration declaring that the Plaintiff is
the owner of suit property i.e. DDA Janta Flat bearing
No BK-33B, Shalimar Bagh, Delhi -110 088, as shown
in the site plan, and that the order of eviction dated
12.04 2012, passed by the court of Shri Devendra
Kumar Jangala, Ld. ARC, North-West District, Rohini,
Delhi in Eviction Petition No. 260/2007, titled as ‘B.D.
Dhawan vs. Ajay Kumar & Anr‘ is non-est and
possession of the suit property obtained from the
plaintiff in execution thereof is also illegal and non-est
in the eyes of law.
c. Pass a decree of consequential relief of possession in
favor of the Plaintiff against the Defendant No.2 in
respect of the suit property i.e. DDA Janta Flat bearing
No. BK-33B, Shalimar Bagh, Delhi-110 088, correctly
shown in the site plan;
d. Pass a decree for permanent injunction in favor of the
Plaintiff and against the Defendant No.2, thereby
restraining the Defendant No.2, his attorneys, agents,
representatives, servants or anybody else claiming
through them from selling, alienating or creating third
party interest in the suit property in any manner
whatsoever,
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e. Any such further order(s) or relief(s), which this Hon’ble
Court may deem fit and proper may also be passed in
favor of the plaintiff and against the defendants, in the
interest of justice;
2. CASE OF THE PLAINTIFF AS PER PLAINT
2.1. It averred by Plaintiff in the Plaint that one DDA Janta Flat
bearing No. 33-B, in Block BK-1, Shalimar Bagh, Delhi –
110088, correctly shown in the site plan attached with the
plaint (hereinafter referred to as ‘The Suit Property’), was
originally allotted to Defendant No. 1, Shri. Narain Dass son of
Shri Tara Chand, vide allotment letter dated 28.08.1980. The
Defendant No.1 approached the Plaintiff for sale of the said
flat immediately after its allotment for a sum of ₹ 12,000/-
(Rupees twelve thousand only) and demanded the same in
lumpsum in cash.
2.2. It averred by Plaintiff in the plaint that the Plaintiff agreed to
purchase the suit property from Defendant No.1, Shri Narain
Dass under an ‘Oral Agreement’. The Plaintiff paid ₹ 12,000/-
to Defendant No.1 and the Plaintiff had agreed to pay
installments of the suit property to DDA. Since the
installments covering the costs of the flat were to be paid on
monthly basis, the subsequent installments were paid by the
Plaintiff. The challans of remittance of money to the Delhi
Development Authority through bank are produced by the
plaintiff. The execution of the documents of sale was
postponed to a future date, as the necessary formalities with
the DDA and Shri Narain Dass were not complete. The
Plaintiff was handed over possession of the flat/Suit Property
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by the Defendant No.1 after obtaining its possession from
DDA
2.3. It averred by Plaintiff in the Plaint that since the Lease Deed
from Delhi Development Authority in favor of Defendant No.1
was not executed, it was agreed between the Plaintiff and
Defendant No. 1 that the documents of transfer of rights of
ownership in the flat would be executed after payment of all
the installments to Delhi Development Authority and after
execution of Lease Deed in favor of defendant No.1.
2.4. It averred by Plaintiff in the Plaint that the Plaintiff after
purchase of the flat from Defendant No.1 in 1980 started
residing as well as carrying on Union activities of the Delhi
General Mazdoor Front of which the Plaintiff was General
Secretary and was continuously carrying on its activities from
the Suit Property ever since 1983. The correspondences from
various persons, organizations as well as Government agencies
and the Courts of law including the Labor Courts in Delhi
received by the Plaintiff at the Suit Property are produced on
record to show that the Plaintiff had been in continuous
possession of the suit property. In 1984, 1987 and 1993, the
Plaintiff is recorded as voter from the suit premises. In 1984,
after his marriage, the Plaintiff brought his wife in the suit
premises. The birth of two sons of the Plaintiff is registered at
the suit premises. There are sufficient documentary evidences
to show and prove the possession of the Plaintiff over the suit
premises.
2.5. It averred by Plaintiff in the Plaint that Shri Ajay Kumar,
Defendant No.3, who happens to be the brother-in-law of the
plaintiff (brother of the wife of the plaintiff) came to Delhi
sometime at the end of 1986 or beginning of 1987 and he was
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allowed by the Plaintiff to reside in the Suit Property till the
time he gets some employment and arrange his own
accommodation. While residing in the suit property, Shri Ajay
Kumar’s name was entered into the electoral roll by the
enumerator as he was putting up with the Plaintiff as his family
members, for the electoral rights in 1987.
2.6. It averred by Plaintiff in the Plaint that the Plaintiff continued
residing in the Suit Property as its owner as the Defendant
No.1 had not got Lease Deed executed in his name from the
Delhi Development Authority and the instalments to the Delhi
Development Authority were paid by the Plaintiff as per ‘Oral
Agreement’ with the Defendant No.1. Since Defendant No.1
was a person of confidence of the Plaintiff, the Plaintiff never
thought it necessary to get the agreement reduced into writing
or to take the receipt(s) of the payments in writing.
2.7. It averred by Plaintiff in the Plaint that the defendant No.3 Shri
Ajay Kumar has never been a tenant in the suit property either
under Defendant No. 1 or under Defendant No.2 or any other
person claiming under Defendant No.1.
2.8. It averred by Plaintiff in the Plaint that the Defendant No.2
filed a false eviction petition against the Defendant Nos. 3 and
4, inter alia alleging therein that Defendant No.3 was tenant in
the suit property under him and further that the Defendant
No.3 had sublet, assigned or parted with the possession of the
suit property to Defendant No.4. A copy of the eviction petition
containing averments of Defendant No.2 is placed on record. It
is submitted that the copy of the eviction petition in the closed
envelope address to Defendant No.3 was received by the
plaintiff’s family member.
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2.9. It averred by Plaintiff in the Plaint that the Defendant No.3 and
Defendant No.4 are real brother-in-law (brothers of the wife of
the plaintiff) and they maintain their separate household in
Delhi residing at the different places. The Defendant No.3, at
the time of filing eviction petition was residing at L-2B,
Mohan Garden, Uttam Nagar, New Delhi. The Defendant No.
3 had never been a tenant in the Suit Property and Defendant
No.4 had never been a sub-tenant in the suit property under
Defendant No.2. Plaintiff asked his brother-in-law Ajay Kumar
that summons from the Court of Additional Rent Controller
had come in his name. Shashi Kumar was residing separately
at Singhalpur village. He was also told.
2.10. It averred by Plaintiff in the Plaint that Defendant Nos. 3 and 4
appeared in the eviction petition and refuted the allegations of
the Defendant No.2 by filing their written statement,
mentioning inter alia therein that the Defendant No.3 has never
been a tenant and Defendant No.4 is not a sub-tenant.
2.11. It averred by Plaintiff in the Plaint that the Defendant No. 1
produced false and fabricated receipts showing in the name of
Defendant No. 3 as his tenant and on the basis of those forged
and fabricated documents obtained an eviction order dated
12.04.2012 against the Defendant Nos 3 and 4. The eviction
order obtained by defendant No.2 by fraud and
misrepresentation on the basis of forged documents is no
order/decree in the eyes of law.
2.12. It averred by Plaintiff in the Plaint that the Ld. ARC passed an
eviction order in the petition in absence of the Plaintiff as the
Plaintiff was not a party to the eviction proceedings filed by
the Defendant No.2 and the impleadment application under
Order I Rule 10 CPC filed by the Plaintiff was not allowed by
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the Ld. ARC on the grounds contained in Order dated
23.04.2009.
2.13. It averred by Plaintiff in the Plaint that the Plaintiff filed
objections to the execution of the eviction order, but the same
was summarily dismissed by the Ld. ARC which fact led to
filing an appeal bearing No. 47/2012 filed by plaintiff before
the Court of Ld. Addl. Rent Control Tribunal which was
allowed by the Ld. ARCT vide order dated 06.06.2012.
2.14. It averred by Plaintiff in the Plaint that since the Ld. ARCT did
not grant stay order till the objections are finally disposed of
by the Ld. ARCT, the Plaintiff preferred a Civil Misc. (Main)
before the Hon’ble High Court of Delhi against that part of the
order declining the stay and the Plaintiff’s Civil Misc. (Main)
petition was not entertained by the Hon’ble High Court and the
same was dismissed in limini.
2.15. It averred by Plaintiff in the Plaint that during the pendency of
the objections petition of the Plaintiff, the Plaintiff was
dispossessed in execution of the eviction order through
warrants of possession, however the Court of Ld. ARC
directed the Court bailiff to submit the key of the Suit Property
to the Court.
2.16. It averred by Plaintiff in the Plaint that later on the key of the
Suit Property was handed over to the Defendant No.2 by the
Court of Ld. ARC without passing any speaking order on the
application for stay filed by the Plaintiff along with his
objections petition and since then the Defendant No.2 is
retaining the possession of the suit property.
2.17. It averred by Plaintiff in the Plaint that the Plaintiff had
purchased the Suit Property from its original allottee against a
valid consideration and on Oral terms which were agreed to
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between the Plaintiff and the Defendant No.1, Shri Narain
Dass. The documents of transfer could not be executed at that
time since the DDA has not executed the documents in favor of
Defendant No.1 till that point of time. The Plaintiff was in
continuous possession of the Suit Property till 04.07.2012
when he was dispossessed from the Suit Property. The
Defendant No.2 has never been in possession of the suit
property. The Defendant No.3 was never inducted as a tenant
in the suit property by Defendant No.1 and Defendant No.2
was never in a position to sublet the same to Defendant No.3.
The averments in the eviction petition and the documents of
landlord and tenant relationship between the Defendant No.1
and Defendant No.2, particularly the rent receipts were false,
frivolous, fabricated and forged. The order of eviction in
respect of the Suit Property was obtained by the Defendant
No.2 against the Defendant Nos. 3 and 4 by fraud,
misrepresentation and by concealment of fact. The
dispossession of the Plaintiff from the Suit Property on the
basis of an eviction order obtained by fraud and fabrication,
misrepresentation and concealment is not sustainable in the
eyes of law and the same is liable to be declared as non-est.
2.18. It averred by Plaintiff in the Plaint that the Order of Ld. ARC
being the court of limited jurisdiction cannot entertain the plea
of title and cannot decide the question of title and possession.
The objection to the execution of eviction order was filed when
the Plaintiff was in possession. However, the legal and judicial
opinion is that the remedy of the Plaintiff is to file civil suit.
2.19. It averred by Plaintiff in the Plaint that in the meanwhile, the
Plaintiff under a legal advice filed a Civil Suit being Suit No.
193/2012, in the Court of Shri M.K. Gupta, Ld. ADJ, North-
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West District, Rohini, Delhi, seeking relief of Permanent
Injunction. Temporary Injunction and Declaration in the month
of May 2012, however, that suit is bound to fail due to
technical default. The possession of the Suit Property was with
the Plaintiff and subsequently the Plaintiff was dispossessed on
04.07.2012, in execution of an order obtained by the Defendant
No.2 on fraud and misrepresentation and suit for declaration
without seeking relief of possession is not maintainable. The
Plaintiff intends to withdraw that suit for the reason that the
suit suffers from technical defect and also the possession has
not been claimed therein as the Plaintiff was dispossessed
subsequent to the filing of that suit.
2.20. It averred by Plaintiff in the Plaint that that the Plaintiff is
entitled to seek a declaratory relief to the effect that order of
eviction dated 12.04.2012, in Eviction Petition No. 260/2007
passed by the court of Shri Devender Kumar Jangala, Ld.
ARC, North-West District, Rohini, Delhi is non-est having
been obtained by Defendant No.2 by fraud, misrepresentation
and concealment of facts on the basis of forged, fabricated
documents. The Plaintiff is also entitled to consequential relief
of possession.
2.21. It averred by Plaintiff in the Plaint that the plaintiff apprehends
that the Defendant No.2 may sell, transfer and/or create third
party interest in respect of the Suit Property in order to defeat
the lawful rights of the Plaintiff and to thrust multiple
litigations on the Plaintiff. The Defendant No. 2 is liable to be
restrained from selling. alienating, mortgaging or creating third
party interest in the suit property in any manner whatsoever.
The Plaintiff is, therefore, seeking permanent injunction
against the Defendant No.2.
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3. CASE OF DEFENDANT NO 1 AS PER HIS WRITTEN
STATEMENT
3.1. It is the case of answering Defendant that the suit filed by the
Plaintiff is neither maintainable nor tenable in the eyes of law
as the same is based on cooked up story.
3.2. It is the case of answering Defendant that the present suit of
the Plaintiff is not maintainable and is liable to be dismissed on
the ground that no cause of action and hence the same liable to
be dismissed under order 7 rule 11 C.P.C.
3.3. It is the case of answering Defendant that the present suit is
prima facie time barred and hence the same liable to be
dismissed.
3.4. It is the case of answering Defendant that the present suit merit
rejection as the same has not been properly valued for the
purposes of court fee & requisite court fee thereon has not
been paid.
3.5. It is the case of answering Defendant that the present suit of
the Plaintiff is not maintainable and is liable to be dismissed
because the Hon’ble court has no entertain the present suit.
territorial Jurisdiction to entertain the present suit.
3.6. It is the case of answering Defendant that the suit is not only
fabricated but the same is gross abuse and misuse of the
process of law. That the Plaintiff has no right, title, interest in
the suit property.
3.7. It is the case of answering Defendant that the Plaintiff is trying
to misuse the process of law, ulterior motives and malafide
intention just in order to harass the Answering Defendant
which is totally illegal and unlawful.
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3.8. It is the case of answering Defendant that the present suit of
the Plaintiff is not maintainable and is liable to be dismissed
for the reason that the sole purpose of filing the present suit
before the Hon’ble court is to extract undue money from the
LRs of Defendant no.1 who has been suffering in the hands of
the Plaintiff since long.
3.9. It is the case of answering Defendant that the conduct of the
Plaintiff disentitles her from claiming any relief from the
Hon’ble court as the Plaintiff has not come with clean hands
and suppressed material facts from this Hon’ble court.
3.10. It is the case of answering Defendant that one Janta flat
bearing no. 33-B, IN Block-BK-1, Shalimar Bagh,
Delhi-110088, was allotted to our father i.e. Defendant no.1.
The property in question was sold by Late. Sh. Narain Dass to
Sh. Nawal Kishore and all the relevant documents had handed
over to sh. Nawal Kishore by the Defendant no.1.
3.11. It is the case of Answering Defendants that Original
Defendant, Narain Das expired on 24.11.2012.
3.12. The Answering Defendant denied that Defendant no.1
approached the Plaintiff for sale of said flat immediately after
its allotment for a sum of Rs. 12,000/- and demanded the same
in lumsum in cash.
4. CASE OF DEFENDANT NO 2 AS WRITTEN HIS WRITTEN
STATEMENT
4.1. It is the case of answering Defendant that the Defendant No.2
had instituted an Eviction Petition bearing No. E-260/2007
Under Section 14(1)(a), (b), (d) & (h) of Delhi Rent Control
Act against the Defendants No.3 & 4, who are the real brother-
in-Law of Plaintiff. In reply to the petition filed by the
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Defendant No.2 against Defendants No.3 & 4 the Defendants
No.3 & 4 had filed separate written statements along with an
Application Under Order VII Rule 11 read with Section 151
C.P.C and also filed another application Under Order 1 Rule 10
read with Section 151 C.P.C in which they had alleged that the
Plaintiff is the owner of suit premises and they were never
tenant/ sub tenant. Both the Defendants No.3 & 4 had
withdrawn the applications filed by them.
4.2. It is the case of answering Defendant that that is important to
note that the Plaintiff herein also filed an application Under
Order 1 Rule 10 of Civil Procedure Code on 16.10.2008 on
similar lines alleging himself as owner of the property and
filed number of documents before the then Addl. Rent
Controller, Shri Manish Gupta, Rohini Courts, Delhi.
4.3. It is the case of answering Defendant that Defendant No.2
submitted his reply and produced the documents and explained
that the property came in the hands of Petitioner from Shri
Narain Dass through two more purchasers of the property viz.
Shri Nawal Kishore and Ms. Dimple.
4.4. It is the case of answering Defendant that the property in
question was sold by Shri Narain Dass to Shri Nawal Kishore
and subsequently from Shri Nawal Kishore to Ms. Dimple who
is the daughter of Defendant No.2. The Defendant No.2 further
produced the documents executed by Delhi Development
Authority consisting of Allotment Letter dated 28.8.1980 and
with regard to the electricity connection, water connection,
possession letter, certificate of registration and further the
documents executed by Shri Narain Dass in favour of Shri
Nawal Kishore and in terms of the sale by way of Agreement
to Sell, receipt, Will and G.PA including all other documents
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and Shri Narain Dass had handed over all the original
documents of Delhi Development Authority to Shri Nawal
Kishore. Shri Nawal Kishore had further sold the property by
way of Agreement to Sell, Receipt, Will, G.P.A, Possession
letter, etc. to Ms. Dimple and it is further sold by Ms. Dimple
(daughter of Defendant No.2) to Defendant No.2 and all the
originals mentioned above delivered to Defendant No. 2.
4.5. It is the case of answering Defendant that the Plaintiff herein
had alleged that there is no title document in his favour and
that there was Oral Sale of the property in question. On the
basis of these documents, the Hon’ble Judge, Shri Manish
Gupta, the then A.R.C. Rohini, Delhi had dismissed the said
application vide Order dated 23.4.2009 on the principal of law
that immoveable property having value more than Rs. 100/-
cannot be transferred on the basis of Oral Sale.
4.6. It is the case of answering Defendant that the Plaintiff herein
had filed appeal against the said Order dated 23.04.2009 and
Hon’ble Ms. Bimla Maken, the then Judge, R.C.T. Delhi had
dismissed the appeal by passing speaking Order dated
06.11.2009 observing that the Plaintiff herein had failed to
produce any document of title executed by Shri Narain Dass in
his favour and disbelieve the Plaintiff with regard to the oral
sale of property in favour of Plaintiff by Shri Narain Dass.
4.7. It is the case of answering Defendant that thereafter the
Plaintiff herein had filed review petition which was dismissed
by the Hon’ble Shri S.K. Sarvaria, District Judge, Rohini, Delhi
vide Order dated 4.8.2011.
4.8. It is the case of answering Defendant that the Plaintiff herein
had further filed the C.M (Main) bearing No. 1358/2011 before
the Hon’ble High Court of Delhi and after number of dates and
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arguments, the Hon’ble High Court of Delhi, without issuing
any notice to Defendant No.2, had not admitted the petition
and subsequently the Plaintiff had withdrawn the said petition
before the Hon’ble High Court of Delhi.
4.9. It is the case of answering Defendant that the Plaintiff herein
also appeared before the Hon’ble Trial Court in Eviction
Proceedings as witness of Defendants No.3 & 4. That the
Defendants No.3 & 4 and Plaintiff herein had produced all the
witnesses to prove that the Defendant No.2 is not the owner of
property and Plaintiff is the owner of property which they
failed to do so and the issue was decided in favor of the
Defendant No.2 categorically. The Defendant No.2 herein is
able to prove that the Defendant No.2 is the owner of property
in question.
4.10. It is the case of answering Defendant that the Hon’ble Court of
Shri D.K. Jangala, the then A.R.C. Rohini Courts, Delhi in the
above Eviction proceedings passed the eviction Order Under
the provisions of Delhi Rent Control Act vide Order dated
11.4.2012.
4.11. It is the case of answering Defendant that the Plaintiff herein
had filed the objections in the execution petition vide No.24/12
filed by the Defendant No.2 in the Court of Shri D.K. Jangala,
the then A.R.C. Rohini Courts, Delhi.
4.12. It is the case of answering Defendant that the Defendants No.3
& 4 had filed the objections of the execution petition. All the
objections are argued and the Court of Shri D.K. Jangala, the
then A.R.C. Rohini Courts, Delhi had dismissed the objections
filed by Plaintiff and the Defendants no. 3& 4 vide Order dated
25.5.2012.
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4.13. It is the case of answering Defendant that Defendant No.3 had
also filed appeal against the main order which was dismissed
on merits by the Court of Shri S.K. Sarvaria, RCT/ District
Judge, Delhi.
4.14. It is the case of answering Defendant that the Plaintiff herein
had filed appeal against the dismissal of objections. The
Hon’ble Court of Shri S.K. Sarvaria had partly allowed the
appeal of Plaintiff and given change to prove his averment
before the Hon’ble Trial Court vide Order dated 6.6.2012 and
the said objection later on was withdrawn by the Plaintiff
herein on 11.1.2013. It is right place to mention that the
Plaintiff herein had also filed further C.M (Main) against the
Order of Shri S.K. Sarvaria, RCT/ District Judge, Delhi and
same was dismissed by Justice M.L Mehta, Delhi High Court
vide Order dated 02.07.2012.
4.15. It is the case of answering Defendant that the Plaintiff herein
had filed Civil Suit bearing No.193/2012 earlier deliberately
and Plaintiff had not placed the plaint of the said suit before
the Hon’ble Court in which the Plaintiff had admitted the
specific fact that he had lodged complaint dated 29.9.1992
with the Police Station Shalimar Bagh and sent the copies to
the authorities and the said document is not placed deliberately
by the Plaintiff. The above said fact is not mentioned in the
plaint for the reasons best known to him. The said document is
filed by the Plaintiff in his earlier suit which was dismissed as
withdrawn on 05.01.2013. It is right place to mention here that
one Constable Shri Ramesh Kumar was got examined and the
cross examination in the eviction proceedings mentioned
above on the same lines on the basis of said complaint dated
23.09.1992.
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4.16. It is the case of answering Defendant that the Plaintiff with the
connivance of Defendants No.3 & 4 and with illegal desire and
by ulterior motive are harassing the Defendant No.2 without
any cause and reasons. Numbers of litigations are already
carried out by these 3 persons as mentioned above.
5. CASE OF DEFENDANT NO 3 AS PER HIS WRITTEN
STATEMENT
5.1. It is the case of answering Defendant that the Plaintiff without
any rhyme or reason made the party to the answering
Defendant in the present suit no claim or relief claimed against
the answering Defendant. The answering Defendant has no
concern with the suit property. It is the Defendant No.2 who
filed the Eviction Petition against the Answering Defendant
before the Ld. Rent controller, Rohini Courts, Delhi with a
malafide intention to evict the Plaintiff by misusing the Delhi
Rent Control Act. The Answering Defendant never resided in
the suit premises in capacity of a tenant either under the
Plaintiff or the Defendant no.2.
5.2. It is the case of answering Defendant that the Answering
Defendant is brother of Plaintiff’s wife and he had come to
Delhi in 1986 and resided with the Plaintiff as a guest of
Plaintiff. It is submitted Answering Defendant left the suit
premises immediately after his marriage in the year 1994.
Thereafter, he resided along with his wife in Singalpur
Extension, Shalimar Bagh and later on in Sagarpur, Delhi as a
tenant up to the year 2003 of purchasing his own property at
Mohan Garden, Uttam Nagar, Delhi.
5.3. It is the case of answering Defendant that the notice of
Eviction Petition was served to the Answering Defendant at his
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address at Mohan Garden, Uttam Nagar, Delhi. It is submitted
that prior to filing the eviction petition no notice was served as
the Answering Defendant. It is submitted that on 10.10.2006.
date on which notice was alleged issued by the Defendant no.2,
the was Answering Defendant residing in his own house at
Mohan Garden, Uttam Nagar, Delhi. That legal notice was not
served on the Answering Defendant.
6. REPLICATION TO WRITTEN STATEMENT OF
DEFENDANTS
The Plaintiff filed the replication to the written statement of
Defendant no. 1-4, denying the averments and claims of the
Defendant no 2.
7. ISSUES IN THE PRESENT LIS
7.1. After completion of pleadings, vide order dated 13.08.2015
following issues have been settled for trial:
1. Whether the plaintiff is entitled for a decree of specific
performance against Defendant no.1/LRs of Defendant
no.1 by directing them to execute the sale documents of
the Suit Property i.e. DDA Janat Flat bearing No. 33-B,
Block-BK-1, Shalimar Bagh, Delhi in favor of Plaintiff?
OPP.
2. Whether the Plaintiff is entitled for a decree of declaration
directing the Plaintiff as owner of the Suit Property i.e.
DDA Janta Flat bearing no. 33-B, Block-BK-1, Shalimar
Bagh, Delhi? OPP
3. Whether the Plaintiff is entitled for a decree of possession
against Defendant no.2 of the Suit Property DDA Janta
Flat bearing no. 33-B, Block-BK-1, Shalimar Bagh,
Delhi? OPP
4. Whether Plaintiff is entitled for a decree of permanent
injunction against Defendant no.2 of the Suit Property i.e.
DDA Janta Flat bearing no. 33-B, Block-BK-1, Shalimar
Bagh, Delhi ? OPP
5. Whether the suit of Plaintiff is maintainable in the present
form and the same is without any cause of action? OPD
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6. Whether the suit of the Plaintiff is barred by law of
limitation? OPD
7. Whether the suit of the Plaintiff is bad for non-joinder or
mis-joinder of necessary parties? OPD
8. PLAINTIFF’S EVIDENCE
8.1. In order to discharge the onus of proof and establish her case,
the plaintiff entered into the witness box and examined herself
as PW1. PW1 tendered her evidence by way of affidavit
exhibited as Ex. PW1/A. Relied upon the following documents
in support of her case:
i. Original Birth Certificate of Sh. Sanjog Kumar, ExPW1/1.
ii. Original Letter dated 29.12.1993 received from DDA,
ExPW1/2.
iii. Communication Letters received from Labor Department in
the name of Delhi General Mazdoor Front, ExPW1/3.
iv. Communication Letter dated 28.09.1986, 24.01.1991,
24.04.1991, 29.04.1992, 13.06.1997, 18.06.1997, 14.08.1998,
24.09.1999, 14.03.2002, 20.03.2002 & 03.07.2004,
ExPW1/4(Colly).
v. Original Electricity Bill of June 1992, ExPW1/5.
vi. Original Bank Challan Receipts, payment acknowledgement
receipts and letter submitted before DDA, ExPW1/6.
vii. Ex. PW1/7 (Colly.) are the original letters dated 16.05.1985,
19.08.1985 and 24.04.1986 sent to General Secretary, Delhi
General Mazdoor Front.
viii. Ex. PW1/8 (page no. 255 to 263) (Colly.) are the list of
Electoral Roll.
ix. Ex. PW1/9 (page no. 267 to 271) (Colly.) are the certified
copies of eviction petition containing averments of defendant
no. 2.
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x. Ex. PW1/11 is the certified copy of the Eviction Order dated
11.04.2012 passed in Eviction Petition NO. 260/2007.
xi. Ex. PW1/12 (Colly.) is the certified copy of Memorandum of
Appeal.
xii. Ex. PW1/13, Certified Copy of the Order dated 11.01.2013
8.2. Plaintiff was not cross-examined as defendants have already
been proceeded Ex-Parte and defendants did not lead any
evidence to rebut the claim of the Plaintiff.
9. FINAL ARGUMENTS
9.1. It is argued by the Ld. Counsel for the Plaintiff that the
Plaintiff is the owner of the Suit Property and in support of his
contentions, the Plaintiff has brought on record various
documents including Date of Certificates of his sons,
Correspondences between him and various department, DDA
receipts of payment electoral roll of relevant year showing the
Plaintiff on the said roll as voter. It is also argued that the
documents filed by the Plaintiff clearly signifies uninterrupted
possession by the Plaintiff.
9.2. It is the case of Plaintiff that he is the owner of the Suit
Property and entered into the possession on the basis of Oral
Agreement to Sale with the Defendant no 1 for a consideration
of ₹12,000/-
9.3. It is argued by the Ld. Counsel appearing for Plaintiff that the
Defendants are Ex-Parte, and no evidence was led by the
Defendants to rebut the claim of the Plaintiff, thus, in view of
the unrebutted evidence of the Plaintiff, the Plaintiff is entitled
to succeed in the present case.
9.4. It is the case of Plaintiff that the present suit is within
limitation as the Plaintiff was evicted from the Suit Property
vide Eviction Order dated 11.04.2012. Thus, in view of Article
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54 of Schedule to Limitation Act, 1963, the date of Eviction
Order be considered as date of refusal. The present suit was
filed in January, 2013; thus the suit is filed with three years
from the date of refusal as per Article 54 of Schedule to
Limitation Act, 1963.
10.ISSUE WISE ANALYSIS AND FINDINGS
10.1. I have heard the Ld. Counsel for the Plaintiff and have given
my anxious and thoughtful consideration to the submissions
made. Further, I have also carefully gone through the entire
record. My Issue wise findings are as Under:
ISSUE NO 1: Whether the Plaintiff is entitled for a decree of specific
performance against Defendant no.1/LRs of Defendant no.1 by directing
them to execute the sale documents of the suit property i.e. DDA Janat
Flat bearing No. 33-B, Block-BK-1, Shalimar Bagh, Delhi in favour of
Plaintiff? OPP.
ISSUE No 2: Whether the Plaintiff is entitled for a decree of declaration
directing the Plaintiff as owner of the Suit Property i.e. DDA Janta Flat
bearing no. 33-B, Block-BK-1, Shalimar Bagh, Delhi? OPPISSUE NO 3:Whether the Plaintiff is entitled for a decree of possession
against Defendant no.2 of the Suit Property DDA Janta Flat bearing no.
33-B, Block-BK-1, Shalimar Bagh, Delhi? OPP10.2. I am of the opinion that the Issue No 1 & 2 & 3 are
interconnected, thus, both are taken together to be considered
for adjudication.
10.3. The onus to prove the Issue No 1, 2 & 3 is on the Plaintiff, it is
the Plaintiff who has to stand on his legs and prove his case. It
is correct that the defendants are Ex-Parte and they did not lead
any evidence to rebut the claim of the Plaintiff but the initial
onus is on the Plaintiff to prove the case by leading cogent
evidence.
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10.4. It is well settled law that even in the Ex-Parte suit or where the
defence of defendant is struck off, the Plaintiff has to stand on
his own legs. The weakness of the Defendant does not give
ipso facto right to the Plaintiff to get the relief from the court
of law. Reliance in this regard is placed upon the judgment of
Hon’ble High Court of Delhi titled as Harish Mansukhani vs.
Ashok Jain reported as 2009(109) DRJ (DB) wherein the
Hon’ble High Court has held that the Plaintiff has to prove his
own case in accordance with the law and has to stand on his
own legs. The Hon’ble Delhi High Court in another judgment
titled as Sunil Dang vs. RL Gupta reported as CS(OS)
1617/2007 decided on 13.01.2009 has held that on the contrary
if the defendant is Ex Parte, the onus is high on the Plaintiff to
prove its case and when the defendant is contesting the matter,
the fact, which are not disputed are deemed to be proved and
need not to be proved. Further when the Defendant fails to
appear, there can be no admission and the Plaintiff has to prove
the entire case in accordance with law.
10.5. It may be relevant now to consider the law pertaining to
discharge of burden of proof of the issues as relevant and
applicable to the Civil Jurisdiction. In the binding authority of
the Hon’ble Supreme Court of India, in M/s. Gian Chand &
Brothers and Another v. Rattan Lal@ Rattan Singh : [2013] 3
S.C.R. 601; it has been laid down:-
1.3. It is well settled principle of law that a
person who asserts a particular fact is required
to affirmatively establish it. The burden of
proving the facts rests on the party who
substantially asserts the affirmative issues and
not the party who denies it but the said
principle may not be universal in its application
and there may be an exception thereto.
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10.6. The various aspects of proving the facts of a case and
exceptions, if any, have been duly considered by Hon’ble
Supreme Court of India in Anil Rishi vs Gurbaksh Singh in
Appeal (civil) 2413 of 2006 on 2 May, 2006, wherein the
binding legal position has been reinforced as under :-
“Pleading is not evidence, far less proof. Issues
are raised on the basis of the pleadings.
Indisputably, the relationship between the
parties itself would be an issue. The suit will
fail if both the parties do not adduce any
evidence, in view of Section 102 of the
Evidence Act. Thus, ordinarily, the burden of
proof would be on the party who asserts the
affirmative of the issue and it rests, after
evidence is gone into, upon the party against
whom, at the time the question arises, judgment
would be given, if no further evidence were to
be adduced by either side.”
It has been further laid down (supra) :-
“A distinction exists between a burden of proof
and onus of proof. The right to begin follows
onus probandi. It assumes importance in the
early stage of a case. The question of onus of
proof has greater force, where the question is
which party is to begin. Burden of proof is used
in three ways : (i) to indicate the duty of
bringing forward evidence in support of a
proposition at the beginning or later; (ii) to
make that of establishing a proposition as
against all counter evidence; and (iii) an
indiscriminate use in which it may mean either
or both of the others. The elementary rule
is Section 101 is inflexible. In terms of Section
102 the initial onus is always on the plaintiff
and if he discharges that onus and makes out a
case which entitles him to a relief, the onus
shifts to the defendant to prove those
circumstances, if any, which would disentitle
the plaintiff to the same.”.
10.7. As per law of the land, the onus to prove is upon the plaintiff
and if the plaintiff discharges that onus and makes out a case to
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entitle him to the relief asserted, in this circumstance, the onus
shifts upon the defendant to prove such circumstances which
may disentitle the plaintiff to the relief claimed.
10.8. Coming to the case in hand, it is the case of the plaintiff that
the Plaintiff entered into an ‘Oral Agreement’ with the
Defendant no 1 for the purchase of the suit property. The
Plaintiff averred that he was in the possession of the suit
property since 1980 and he has been carrying Union activities
of the Delhi Mazdoor Front of which the Plaintiff was General
Secretary. The Plaintiff has categorically averred that after
marriage his both sons were born in the suit premises. Further,
the Plaintiff got into the electoral rolls wherein the suit
premises is the address. The Plaintiff by way of these
evidences tries to show the possession was with him. The
documents produced by Plaintiff cannot in any manner be
considered as proof of ownership or title. Further, no
documentary proof either oral or documentary has been
brought on record to show the existence of any Oral
Agreement with the Defendant no 1. It is pertinent to reiterate
that the present suit is filed by the Plaintiff seeking Specific
Performance of Oral Contract which was purportedly executed
between Plaintiff and Defendant no 1 in the year 1980.
10.9. It is the case of Plaintiff that in consonance of Oral Agreement
to Sell the Plaintiff took over the possession but did not get the
relevant sale document executed in his favor. Pertinently, the
Oral Agreement to Sale is undated and no witness is produced
by Plaintiff to prove the factum of execution of Oral
Agreement. No Sale document was ever executed between
Plaintiff and Defendant no 1, even there is no correspondences
between the Plaintiff and Defendant no 1 regarding the
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execution of relevant Sale documents.
10.10.The present suit is filed by the Plaintiff seeking Specific
performance of contract of Oral Agreement to Sale directing
Defendant no 1 to execute the sale documents of the suit
property, in favor of the plaintiff by completing all the
formalities which are necessary for the transfer of the suit
property i.e. DDA Janta Flat bearing No. 33-B, in Block BK-1,
Shalimar Bagh, Delhi-110088. It is the specific case of the
Plaintiff that he is the owner of suit property.
10.11. In Brij Mohan and Others v. Sugra Begum and Others [(1990)
4 SCC 147) the Apex Court held that in a case where the
Plaintiffs come forward to seek a decree for specific
performance of a contract of sale of immovable property on the
basis of an oral agreement alone, a heavy burden lies on the
plaintiffs to prove that there was consensus ad idem between
the parties for a concluded oral agreement for the sale of
immovable property.
10.12.In the present case, the Plaintiff has failed to bring on record
any evidence qua the existence of Oral Agreement. It is correct
the Defendants did lead any evidence to rebut the claim of
Plaintiff but in order to establish his case it is the Plaintiff who
has to stand on his own leg and prove his case by leading
cogent evidences. This court is of the view that the plaintiff
failed to establish evidence on the touchstone of the principles
discussed above to establish the existence of an oral contract as
pleaded and no convincing evidence is available to show that
there was an Oral Agreement. The Plaintiff as failed to show
that any consideration amount was paid to the Defendant no 1.
10.13.The seminal question arises Whether the Plaintiff is entitled to
get Specific Performance of Contract for Oral Agreement with
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respect to the Suit property?
10.14.In order to decide the aforesaid question, it is paramount to
consider whether the Plaintiff is able to bring on record
relevant material and evidence to show the existence of Oral
Agreement between Plaintiff and Defendant no 1. It is
pertinent to mention that it is the specific case of the Plaintiff
that he had purchased the suit property being the owner of the
property. The Plaintiff in order to prove his case qua the factum
of ‘Oral Agreement’ has brought on record following
documents:
i. Original Birth Certificate of Sh. Sanjog Kumar, ExPW1/1.
ii. Original Letter dated 29.12.1993 received from DDA,
ExPW1/2.
iii. Communication Letters received from Labor Department in
the name of Delhi General Mazdoor Front, ExPW1/3.
iv. Communication Letter dated 28.09.1986, 24.01.1991,
24.04.1991, 29.04.1992, 13.06.1997, 18.06.1997,
14.08.1998, 24.09.1999, 14.03.2002, 20.03.2002 &
03.07.2004, ExPW1/4(Colly).
v. Original Electricity Bill of June 1992, ExPW1/5.
vi. Original Bank Challan Receipts, payment
Acknowledgement receipts and letter submitted before
DDA, ExPW1/6.
vii. Ex. PW1/7 (Colly.) are the Original letters dated
16.05.1985, 19.08.1985 and 24.04.1986 sent to General
Secretary, Delhi General Mazdoor Front.
viii. Ex. PW1/8 (page no. 255 to 263) (Colly.) are the list of
Electoral Roll.
ix. Ex. PW1/9 (page no. 267 to 271) (Colly.) are the certified
Copies of Eviction Petition containing averments of
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Defendant no. 2.
x. Ex. PW1/11 is the Certified copy of the Eviction Order
dated 11.04.2012 passed in Eviction Petition NO. 260/2007.
xi. Ex. PW1/12 (Colly.) is the certified copy of Memorandum
of Appeal.
xii. Ex. PW1/13, Certified Copy of the Order dated 11.01.2013
10.15.The perusal of the evidence brought on record by the Plaintiff
clearly show that there is not a single document which can
prove the existence of Oral Agreement between Plaintiff and
Defendant no 1. In fact, the communications received from
DDA, which are ExPw1/2 and ExPw1/6 are addressed to the
Defendant no 1 and in ExPw1/6, there are Original Bank
Challans wherein the payment is made by the Defendant no1
under his signatures. It is the specific plea of the Plaintiff that
the documents were not executed by the Defendant no 1 as no
lease document was executed by DDA. Further, ExPw1/5,
Original Electricity Bill of June 1992, clearly shows that the
electricity bill was in the name of Defendant no 1. The Plaintiff
also failed to bring on record the Original Allotment letter
which was issued in the name of Defendant no 1.
10.16.The Plaintiff has brought on record, ExPw1/1, ExPw1/3,
ExPw1/4 & ExPw1/7 are the documents which show that the
suit property was in the possession of the Plaintiff since 1980.
Pertinently, there is not a single document which show that the
Plaintiff was in the possession of suit property since 1980 and
the contention of Plaintiffs that he is the owner of Suit Property
miserably fails as he failed to bring on record even the
Allotment Letter issued by DDA in favor of Defendant no 1.
The birth of children of Plaintiff (ExPw1/1), Communication
Letters from Labor Department (ExPw1/2), Various
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Communication Letters addressed to Plaintiff in the capacity of
General Secretary of Union, ExPw1/4(Colly) & ExPw1/8, List
of electoral rolls are of the year 1984,985 etc., does not show
the existence of Oral Agreement as pleaded by the Plaintiff.
10.17.In this regard the para 5 of the Plaint is worth mentioning. The
para 5 is reproduced as follows:
5.That Shri Ajay Kumar, defendant No.3 who
happens to be the brother-in- law of the
plaintiff (brother of the wife of the plaintiff)
came to Delhi sometime at the end of 1986 or
beginning of 1987 and he was allowed by the
plaintiff to reside in the suit property till the
time he gets some employment and arrange his
own accommodation. While residing in the suit
property, Shri Ajay Kumar’s name was entered
into the electoral roll by the enumerator as he
was putting up with the plaintiff as his family
members, for the electoral rights in 1987.
10.18.Upon examination of para 5 of the Plaint, it is apparent that it
was very easy to get in to the electoral rolls in 1986 and in fact,
the Defendant no 3, who is the brother-in-law of Plaintiff, got
his name in the electoral name very easily. Thus, it is very
unsafe and inappropriate to rely on the fact that the Plaintiff
got the name entered in electoral rolls, which would signify
that the Plaintiff had the possession of suit property. Even the
Defendant no 3, being outsider was entered in the electoral
roll.
10.19. Importantly, there is something more to the picture presented
by the Plaintiff, the Ex. PW1/9 (Colly.) are the certified copies
of eviction petition filed by Defendant no 2 against Defendant
no 3 & 4. The Defendant no 3 & 4 are the brother-in-law of the
Plaintiff as admitted by the Plaintiff in para 5 of the Plaint. In
the eviction petition the Defendant no 2 claims to be the
landlord of the suit property and Defendant no 3 & 4 are
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shown as tenant.
10.20.The plaintiff had the knowledge of the eviction petition Ex.
PW1/9 (Colly.). In this regard the para 8 of the plaint needs
attention. The para 8 is as follows:
8.That the defendant No.2 filed a false eviction
petition against the defendant Nos. 3 and 4,
inter alia alleging therein that defendant No.3
was tenant in the suit property under him and
further that the defendant No.3 had sublet,
assigned or parted with the possession of the
suit property to defendant No.4. A copy of the
eviction petition containing averments of
defendant No.2 is placed on record. It is
submitted that the copy of the eviction petition
in the closed envelope address to defendant
No.3 was received by the plaintiff’s family
member.
10.21.The Plaintiff was well aware about the filing of the eviction
petition and the Defendant no 2 was categorically asserting his
right as landlord of the suit property and Defendant no 3 & 4
was his tenant. The averment of para 8 clearly shows that the
Plaintiff had the complete knowledge of the eviction suit and
Plaintiff and Defendant no 3 & 4 were in collusion with each
other. Moreover, the Plaintiff was a witness in the Eviction
Petition Ex. PW1/9 (Colly.) in the capacity of the owner of suit
property which was categorically rejected by the Ld. ARC,
vide its order dated 11.04.2012, which is Ex. PW1/11. The
relevant paragraphs are as follows:
32. In the present case the petitioner has
claimed the ownership of the suit premises by
virtue of document EX AW 1/1 to EX AW 1/5.
The petitioner has also stood the test of cross-
examination that he is the owner and landlord
of the suit premises. The respondent raised the
objection that the documents filed by the
petitioner cannot be relied upon.
In the present case to decide the existence of
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relationship of landlord and tenant between the
parties the evidence led by both the parties
need to be weighed carefully. In the present
case the petitioner has claimed the ownership
of the suit premises by virtue of chain of
documents starting from original allottee in his
favor The petitioner has also filed on record the
original allotment letter of DDA, possession
letter and other documents executed by the
DDA at the time of initial allotment in favour
of original allottee. On the other hand the
respondent has merely denied the existence of
relationship of landlord and tenant and
produced no documentary evidence in support
of his submissions. The respondent has
produced only oral evidence to rebut the
documentary evidence led by the petitioner.
The respondent has stated that Sh. P. K. Sahi is
the owner of the suit premises, however Sh.
P.K. Sahi was also examined as RW-3 but even
said Sh. P.K. Sahi has failed to place on record
any document in support of his submissions
regarding the ownership of the suit premises.
Therefore, at one hand the petitioner is having
all the original documents regarding allotment
from DDA and chain of documents starting
from original allottee. On the other hand the
respondent is merely relying upon the oral
testimony of the witnesses without filing any
proof of ownership.
10.22.The Order dated 11.04.2012, which is Ex. PW1/11, passed by
Ld. ARC is categorically clear that the Plaintiff and Defendant
no 3 & 4 are in collusion with each other. The Plaintiff failed
to bring on record single document as to claim of his
ownership of suit property. The Order dated 11.04.2012 is
specifically referring to the chain of documents filed by
Defendant no 2 to show that he is the landlord of the Suit
Property, which was considered by the Ld. ARC. Per Contra,
Plaintiff did not bring on record single document to prove his
ownership.
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10.23. Now coming to important aspect, the Plaintiff filed a suit for
permanent and temporary injunction, bearing number
CS-193/2012, ExPW1/12, against Defendant no 2, 3 & 4. The
Plaintiff in the aforesaid suit, ExPW1/12, claimed to be owner
of Suit Property. Pertinently, Defendant no 1 was not the party
to the said suit. The perusal of ExPW1/12, Suit for Permanent
Injunction, points out following important points for the
consideration of this Court:
a. It has been specifically averred, in ExPW1/12, that the
Plaintiff was apprehensive of the Defendant no 2, as he
was creating hinderance in the peaceful enjoyment of the
Suit Property.
b. In consonance of the apprehension the Plaintiff filed a
criminal complaint dated 23.09.1992, against Defendant
no 2, complaining about threatening of dire consequence
if the property is not vacated and handed over to
Defendant no 2. The Complaint Dated 23.09.1992
clearly shows that the Plaintiff was well aware about the
hostile response from Defendant no 2 towards the
Plaintiff with respect to Suit Property.
c. Pertinently, no ownership document was produced bythe Plaintiff to assert his right over the Suit Property.
d. Plaintiff admits that he filed impleadment application inthe Eviction Petition to get himself impleaded which
was dismissed by the Ld.ARC, thereafter the Appeal was
also dismissed by Hon’ble Rent Controller. The review
was also dismissed. The Civil Miscellaneous
Application filed before the Hon’ble High Court of
Delhi was also dismissed.
e. In the aforesaid suit, ExPW1/12, there is no mention
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how the ownership of Suit Property was acquired by the
Plaintiff.
f. The Plaintiff specifically plead in the aforesaid suit,
ExPW1/12 that he made the payment to DDA of
complete installment of ₹20,000/- till the year 2009.
This fact is not mentioned in the present suit.
g. The Plaintiff application under Order 1 Rule 10 seekingimpleadment in the Eviction Petition was dismissed by
the Ld. ARC on 23.04.2019. The dismissal of
application Order 1 Rule 10, clearly shows that the
Plaintiff was aware about the fact that Defendant no 2
was contesting the Eviction Petition on the basis of his
ownership and he had filed chain of ownership
document in the proceedings.
10.24.The Suit for Permanent Injunction, ExPW1/12, clearly shows
that the Plaintiff misused the process of law by filing frivolous
suit to circumvent the implementation of Eviction Order
passed by Ld.ARC. Further, the Suit, ExPW1/12, was filed on
the basis of being owner of the Suit Property but no document
was filed by the Plaintiff.
10.25.Thus, in view of aforesaid discussion and keeping in view the
totality of facts and circumstances of present case, I am of the
view that the Plaintiff is not entitled to relief of Specific
Performance as the Plaintiff has failed to bring on record the
factum of existence of Oral Agreement to Sale with Defendant
no 1. Consequently, upon examination of above discussion, I
arrive at the irresistible conclusion supported by mandate of
law that the Plaintiff has failed to prove existence of Oral
Agreement, thus as a consequence of the above discussion the
Issue no 1 to 3 are decided against the Plaintiff and in favor of
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Defendants. Once the Oral Agreement is not proved then the
suit of the Plaintiff also fails on the aspect of Declaration of
ownership of Suit Property and its possession.
ISSUE NO 4: Whether Plaintiff is entitled for a decree of permanent
injunction against Defendant no.2 of the Suit Property i.e. DDA Janta
Flat bearing no. 33-B, Block-BK-1, Shalimar Bagh, Delhi ? OPP
10.26.The Issue no 1 to 3 have been decided against the Plaintiff. The
Plaintiff failed to prove the existence of Oral Agreement on the
basis of which the Plaintiff was alleged occupying the Suit
Property. Further, in the absence of Oral Agreement and
relevant document and evidence the Plaintiff cannot be given
benefit of Permanent Injunction as no Prima Facie case is
made out, no balance of convenience is in favor of Plaintiff
and the no loss is caused to him.
10.27.In view of the above, where Plaintiff does not have any right,
title or interest in the Suit property, I am of the view that no
benefit of permanent injunction can be granted in favor of the
Plaintiff.
10.28.In Padhiyar Prahladji Chenaji (Deceased) Through L.R.s
Versus Maniben Jagmalbhai (Deceased) Through L.R.s and
Ors, 2022 SCCONLINE SC 258, the Hon’ble Supreme Court
held as follows:
6. At the outset, it is required to be noted that the
suit filed by the original plaintiff was for
cancellation of the registered Sale Deed dated
17.06.1975 and for a declaration that the
registered Sale Deed dated 17.06.1975 is bogus
and not binding to the plaintiff. While praying for
the substantive relief of declaration that the
aforesaid sale deed is not binding on her, the
plaintiff also prayed for return of the land
admeasuring 1-0 guntha, which even according to
the plaintiff was in possession of the defendant
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No.1. The plaintiff also prayed for permanent
injunction with respect to the entire agricultural
land admeasuring 6 acres and 15 gunthas, though
even according to the plaintiff also the defendant
No.1 was handed over the possession of 1-0
guntha of land out of 6 acres and 15 gunthas of
land.
6.1 On appreciation of the entire evidence on
record, the trial court refused to pass the decree
for cancellation of the registered sale deed and
refused to grant a declaration as prayed.
Therefore, so far as on the aspect of title of the
land in question is concerned, the plaintiff lost.
On appreciation of evidence, the trial court held
that the husband of the plaintiff executed the
registered sale deed in favour of the defendant
No.1 for a value consideration. The judgment and
order passed by the trial court refusing to grant
the decree of cancellation of the registered sale
deed and the declaration has attained finality.
This is because no appeal was filed by the
plaintiff.
8.3 Therefore, once the suit is held to be barred
by limitation qua the declaratory relief and when
the relief for permanent injunction was a
consequential relief, the prayer for permanent
injunction, which was a consequential relief can
also be said to be barred by limitation. It is true
that under normal circumstances, the relief of
permanent injunction sought is a substantive
relief and the period of limitation would
commence from the date on which the possession
is sought to be disturbed so long as the
interference in possession continuous. However,
in the case of a consequential relief, when the
substantive relief of declaration is held to be
barred by limitation, the said principle shall not
be applicable.
9. Even otherwise on merits also, the Courts
below have erred in passing the decree of
permanent injunction restraining the defendant
No.1 from disturbing the alleged possession of
the plaintiff. Assuming for the sake of argument
that the plaintiff is found to be in possession, in
that case also, once the plaintiff has lost so far as
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the relief of declaration and title is concerned and
the defendant No.1 is held to be the true and
absolute owner of the property in question,
pursuant to the execution of the sale deed dated
17.06.1975 in his favour, the true owner cannot
be restrained by way of an injunction against
him. In a given case, the plaintiff may succeed in
getting the injunction even by filing a simple suit
for permanent injunction in a case where there is
a cloud on the title. However, once the dispute
with respect to title is settled and it is held against
the plaintiff, in that case, the suit by the plaintiff
for permanent injunction shall not be
maintainable against the true owner. In such a
situation, it will not be open for the plaintiff to
contend that though he/she has lost the case so far
as the title dispute is concerned, the defendant –
the true owner still be restrained from disturbing
his/her possession and his/her possession be
protected. In the present case, as observed
hereinabove and it is not in dispute that the suit
filed by the plaintiff for cancellation of the
registered sale deed and declaration has been
dismissed and the registered sale deed in favour
of the defendant No.1 has been believed and
thereby defendant No.1 is held to be the true and
absolute owner of the suit land in question. The
judgment and decree passed by the trial court in
so far as refusing to grant the relief for
cancellation of the registered sale deed and
declaration has attained finality. Despite the fact
that the plaintiff has lost so far as the title is
concerned, still the Courts below have granted
relief of permanent injunction against the
defendant No.1 – the absolute owner of the land
in question, which is unsustainable, both, on law
as well as on facts. An injunction cannot be
issued against a true owner or title holder and in
favour of a trespasser or a person in unlawful
possession.
10.29.In view of above deliberation, once this court has arrived at a
conclusion that the Plaintiff is not able to prove his case, on the
basis of cogent evidence and materials, proving the existence
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of Oral Agreement on the strength of which the present suit is
filed seeking Specific Performance. Thus, in view of aforesaid
finding the Issue no 4 is decided against the Plaintiff and in
favor of Defendants.
ISSUE NO 5: Whether the suit of Plaintiff is maintainable in the present
form and the same is without any cause of action? OPD
ISSUE NO 6: Whether the suit of the Plaintiff is barred by law of
limitation? OPD
10.30. Coming to Issue no 5 &. 6, the onus to prove the Issue no 5 &
6 is on the Defendants. It is admitted fact that the Defendants
though filed their respective written statements but none of the
Defendants led any evidence to rebut the case of the Plaintiff
but the issue of limitation can still be considered at the
inception. In this regard it is pertinent to mention Section 3 of
the Limitation Act, 1963:-
3. Bar of limitation.–(1) Subject to the
provisions contained in sections 4 to 24
(inclusive), every suit instituted, appeal
preferred, and application made after the
prescribed period shall be dismissed, although
limitation has not been set up as a defence. (2)
For the purposes of this Act,– (a) a suit is
instituted,– (i) in an ordinary case, when the
plaint is presented to the proper officer; (ii) in
the case of a pauper, when his application for
leave to sue as a pauper is made; and (iii) in the
case of a claim against a company which is
being wound up by the court, when the
claimant first sends in his claim to the official
liquidator; (b) any claim by way of a set off or
a counter claim, shall be treated as a separate
suit and shall be deemed to have been instituted
— (i) in the case of a set off, on the same date
as the suit in which the set off is pleaded; (ii) in
the case of a counter claim, on the date on
which the counter claim is made in court; (c) an
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application by notice of motion in a High Court
is made when the application is presented to
the proper officer of that court.
10.31. The Section 3 of Limitation Act, 1963 is crystal clear on the
aspect that if a suit is instituted or appeal is preferred or an
application is made after the expiry of the period of limitation,
then the said suit, appeal or application be dismissed even if
the limitation is not set up as defense. Further, this Court, in
the performance of its duty, mandated under Section 3 of the
Limitation Act, 1963, has to take up the question of limitation.
10.32.The Hon’ble Supreme Court has held in the case of V.M.
Salgaocar and Bros. v. Board of Trustees of Port of Mormugao
and Another, (2005) 4 SCC 613 wherein the Hon’ble Court
has held as follows:
“20. The mandate of Section 3 of the
Limitation Act is that it is the duty of the court
to dismiss any suit instituted after the
prescribed period of limitation irrespective of
the fact that limitation has not been set up as a
defence. If a suit is ex facie barred by the law
of limitation, a court has no choice but to
dismiss the same even if the defendant
intentionally has not raised the plea of
limitation.
21. This Court in Manindra Land & Building
Corpn. Ltd. v. Bhutnath Banerjee [(1964) 3
SCR 495: AIR 1964 SC 1336] held (AIR para
9):
“Section 3 of the Limitation Act, enjoins the
court to dismiss any suit instituted, appeal
preferred and application made, after the period
of limitation prescribed therefor by Schedule I
irrespective of the fact whether the opponent
had set up the plea of limitation or not. It is the
duty of the court not to proceed with the
application if it is made beyond the period of
limitation prescribed. The Court had no choice
and if in construing the necessary provision of
the Limitation Act or in determining which
CS DJ No. 58044/2016 PRAFUL KUMAR SHAHI & ORS VS NARAIN DASS & ORS Page No. 37/44
provision of the Limitation Act applies, the
subordinate court comes to an erroneous
decision, it is open to the court in revision to
interfere with that conclusion as that
conclusion led the court to assume or not to
assume the jurisdiction to proceed with the
determination of that matter.”
10.33. Now coming to the case in hand , in order to arrive at just
conclusion to decide the Issue of limitation, it is pertinent to
refer to the relevant pleadings of plaint. The relevant pleadings
are as follows:
That the suit property DDA Janta Flat bearing
No. 33-B, in Block BK-1, Shalimar Bagh,
Delhi – 110088, correctly shown in the site plan
attached with the plaint (hereinafter referred to
as ‘the suit property’), was originally allotted to
defendant No. 1 Shri Narain Dass son of Shri
Tara Chand vide allotment letter dated
28.08.1980. The defendant No.1 approached
the plaintiff for sale of the said flat immediately
after its allotment for a sum of Rs. 12,000/-
(Rupees twelve thousand only) and demanded
the same in lumpsum in cash.
It is further submitted by ld. counsel for
plaintiff that the plaintiff agreed to purchase the
suit property from defendant No.1 Shri Narain
Dass under an oral agreement. The plaintiff
paid Rs 12,000/-to defendant No.1 and the
plaintiff had agreed to pay installments of the
suit property to DDA. Since the installments
covering the costs of the flat were to be paid on
monthly basis, the subsequent installments
were paid by the plaintiff. The challans of
remittance of money to the Delhi Development
Authority through bank are produced by the
plaintiff. The execution of the documents of
sale was postponed to a future date, as the
necessary formalities with the DDA and Shri
Narain Dass were not complete. The plaintiff
was handed over possession of the flat/suit
property by the defendant No.1 after obtaining
its possession from DDA.
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The plaintiff after purchase of the flat from
defendant No.1 in 1980 started residing as well
as carrying on union activities of the Delhi
General Mazdoor Front of which the plaintiff
was General Secretary and was continuously
carrying on its activities from the suit property
ever since 1983.
The plaintiff continued residing in the suit
property as its owner as the defendant No.1 had
not got Lease Deed executed in his name from
the Delhi Development Authority and the
instalments to the Delhi Development
Authority were paid by the plaintiff as per oral
agreement with the defendant No.1. Since
defendant No.1 was a person of confidence of
the plaintiff, the plaintiff never thought it
necessary to get the agreement reduced into
writing or to take the receipt(s) of the payments
in writing.
10.34.The limitation for filing a suit for specific performance, as per
Article 54 of the Schedule to The Limitation Act, 1963 is 3
years ‘from the date fixed for performance or if no such date is
fixed, when the plaintiff has notice that the performance is
refused.’
10.35.The Hon’ble Supreme Court in the case of In Ghewarchand v
Mahendra Singh, (2018) 10 SCC 588, it was observed that
when deciding upon the question of limitation, it is mainly
required to see the plaint allegations and how the plaintiff has
pleaded the accrual of cause of action for filing of the suit.
Apropos limitation, this Court observed, in Basawaraj v Land
Acquisition Officer, (2013) 14 SCC 81 as under:
’12. It is a settled legal proposition that law of
limitation may harshly affect a particular party
but it has to be applied with all its rigour when
the statute so prescribes. The court has no
power to extend the period of limitation on
equitable grounds. “A result flowing from a
statutory provision is never an evil. A court has
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no power to ignore that provision to relieve
what it considers a distress resulting from its
operation.” The statutory provision may cause
hardship or inconvenience to a particular party
but the court has no choice but to enforce it
giving full effect to the same. The legal maxim
dura lex sed lex which means “the law is hard
but it is the law”, stands attracted in such a
situation. It has consistently been held that,
“inconvenience is not” a decisive factor to be
considered while interpreting a statute.
13. The statute of limitation is founded on
public policy, its aim being to secure peace in
the community, to suppress fraud and perjury,
to quicken diligence and to prevent oppression.
It seeks to bury all 12 acts of the past which
have not been agitated unexplainably and have
from lapse of time become stale. According to
Halsbury’s Laws of England, Vol. 28, p. 266:
“605. Policy of the Limitation Acts.– The
courts have expressed at least three differing
reasons supporting the existence of statutes of
limitations namely, (1) that long dormant
claims have more of cruelty than justice in
them, (2) that a defendant might have lost the
evidence to disprove a stale claim, and (3) that
persons with good causes of actions should
pursue them with reasonable diligence.” An
unlimited limitation would lead to a sense of
insecurity and uncertainty, and therefore,
limitation prevents disturbance or deprivation
of what may have been acquired in equity and
justice by long enjoyment or what may have
been lost by a party’s own inaction, negligence
or laches. (See Popat and Kotecha Property v.
SBI Staff Assn. [(2005) 7 SCC 510], Rajender
Singh v. Santa Singh [(1973) 2 SCC 705: AIR
1973 SC 2537] and Pundlik Jalam Patil v.
Jalgaon Medium Project [(2008) 17 SCC 448:
(2009) 5 SCC (Civ) 907].)’ (emphasis supplied)
10.36.Article 54 of Schedule to the Limitation Act, 1963 provides for
3 years limitation period ‘from the date fixed for performance
or if no such date is fixed, when the plaintiff has notice that the
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performance is refused. In the present case admitted there is no
written document and entire case of the Plaintiff is based on
the Oral Agreement to Sale, which is unproved. Thus, the
question of date fixed for performance of contract does not
arise at all. Now, Coming to later part of Article 54 of Schedule
to Limitation Act, which talks about when the plaintiff has
notice that the performance is refused. In the present case
though there was no written agreement but the materials are
there which shows the scenario was hostile to the Plaintiff. The
Suit, ExPW1/12, wherein the Criminal Complaint dated
23.09.1992 is annexed which was filed by Plaintiff against the
Defendant no 2 with respect to suit property. The Plaintiff was
well aware about the fact that he is not the owner of the
property and Defendant no 2 was asserting his right over the
Suit Property.
10.37.The Hon’ble Supreme Court in the case of A.VALLIAMMAI
VERSUS K.P. MURALI AND OTHERS, 2023 INSC 823,
wherein it is held by Hon’ble Supreme Court which is as
follows:
20. Article 54 of Part II of the Schedule to the
Limitation Act, 19637 stipulates the limitation
period for filing a suit for specific performance
as three years from the date fixed for
performance, and in alternative when no date is
fixed, three years from the date when the
plaintiff has notice that performance has been
refused. Section 9 of the Limitation Act, 1963
stipulates that once the limitation period has
commenced, it continues to run, irrespective of
any subsequent disability or inability to
institute a suit or make an application.
It is an accepted position that Rs. 1,00,000/-
was paid at the time of execution of the
agreement to sell (Exhibit A-1), and the
balance consideration of Rs. 31,45,000 was
required to be paid by 26.05.1989. Time for
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payment of Rs.31,45,000/- and execution of the
sale deed was extended till 26.11.1989 vide the
endorsement (Exhibit A-3). If we take the date
26.11.1989 as the date for performance, the suit
for specific performance filed on 27.09.1995, is
barred by limitation. However, we agree with
the submission raised on behalf of K.P. Murali
and S.P. Duraisamy, that the aforesaid time, as
fixed vide the agreement to sell and the
endorsement (Exhibit A-1 and A-3), was not
the essence of the contract and therefore, the
first part of Article 54 will not be applicable.10
Instead, the second part of Article 54 will
apply.11 On the interpretation of Article 54,
this Court in Pachanan Dhara and Others v.
Monmatha Nath Maity12, has held that for
determining applicability of the first or the
second part, the court will have to see whether
any time was fixed for performance of the
agreement to sell and if so fixed, whether the
suit was filed beyond the prescribed period,
unless a case for extension of time or
performance was pleaded or established.
However, when no time is fixed for
performance, the court will have to determine
the date on which the plaintiff had notice of
refusal on part of the defendant to perform the
contract. Therefore, we have to examine
whether K. Sriram or his assignees, K.P. Murali
or S.P. Duraisamy, had notice that performance
had been refused by A. Valliammai and, if so,
from which date.
10.38.Keeping in view the facts and circumstances adumbrated
above and having held that the Plaintiff failed to bring on
record relevant material and evidence to show the existence of
Oral Agreement to Sale, I am of the view that, the 3-year
limitation, if any as there is no Oral Agreement, could have
started from the date when the Plaintiff’s application under
Order 1 Rule 10 seeking impleadment in the Eviction Petition
was dismissed by the Ld. ARC on 23.04.2019. The dismissal
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of application Order 1 Rule 10, clearly shows that the Plaintiff
was aware about the fact that Defendant no 2 was contesting
the Eviction Petition on the basis of his ownership and he had
filed chain of ownership document in the proceedings. It is the
case of Plaintiff that cause of action to file the present suit
accrued in favor of the Plaintiff on 04.07.2012 when the
Plaintiff was dispossessed from the Suit Property. The cause of
action against the Defendant no 1 accrues on 04.07.2012 when
the Defendant no 1 refused to refused to execute Sale Deed in
respect of Suit Property in favor of Plaintiff.
10.39. Firstly, the Plaintiff tried to circumvent the execution of
Eviction Order passed by Ld. ARC by filing frivolous
applications and appeals. Pertinently, the Plaintiff was very
well aware about the Eviction Proceedings. Secondly, there is
not a single document or evidence brought on record to show
that the Defendant no 1 refused to execute the Sale Deed in
favor of Plaintiff. I am of the view that the reason of not
bringing on record evidence with respect to Oral Agreement to
Sale and refusal to execute the Sale Deed by the Plaintiff is
that there is neither the existence of Oral Agreement nor there
was any refusal by the Defendant no 1. In any case if the
period of limitation is calculated from 23.04.2019 i.e. the date
of dismissal of Plaintiff’s application under Order 1 Rule 9,
seeking impleadment in the Eviction Petition, then the 3-year
period for specific performance ends on 23.03.2022. The
present suit was filed on 03.01.2013, thus the present Suit of
the Plaintiff seeking specific performance of Oral Agreement is
time barred.
10.40. Thus, in view of aforesaid discussions I am of the view that the
Plaintiff failed to prove the fact of existence of Oral
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Agreement to Sale and fact of refusal to execute Sale Deed in
favor of Plaintiff, by leading cogent evidence. The present Suit
of the Plaintiff is time barred and thus, liable to be dismissed.
The Issue no 5 & 6 are decided against the Plaintiff and in
favor of Defendants.
11.RELIEF
11.1. In view of totality of facts and circumstances of the present
suit, the present suit of Plaintiff is dismissed.
11.2. Decree sheet be prepared accordingly.
11.3. File be consigned to record room after due compliance.
11.4. No Order as to Cost.
Digitally
signed by
AKBAR
AKBAR SIDDIQUE
SIDDIQUE Date:
2026.04.08
16:22:09
+0530
Announced in open (Akbar Siddique)
Court on 08.04.2026 DJ-04, North, Rohini Courts,
Delhi/ 08.04.2026
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