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2007 DIGILAW 1419 (DEL)

RAM GOPAL v. BIMLA DEVI

2007-07-19

J.M.MALIK

body2007
J. M. MALIK, J. ( 1 ) THE genesis and sequence of this second appeal filed by the defendants/appellants is this. The deceased respondent, Sunder Lal, filed a suit for permanent injunction and mandatory injunction. Shiv Chand, father of deceased respondent, and after his death in the year 1957, plaintiff/deceased respondent has been in possession of land comprised in Khasra No. 308/30 measuring 3 biswas of Revenue Estate, situated at Giya Sara. On 22. 03. 1978 Ram gopal, appellant no. 1 and his wife Smt. Bimla Devi, appellant no. 2 tried to demolish the boundary wall of the said land, but due to intervention of respondent they could not accomplish the illegal act. Thereafter, the respondent filed a suit for injunction against appellant no. 1 on 22. 03. 1978. The appellant was summoned. During the pendency of that suit counsel for the appellant Sh. R. K. Sharma, made the following statement in the court of Sh. B. L. Garg, Sub-Judge Ist Class, Delhi on 18. 04. 1978 on behalf of the appellant:- 'statement of Shri R. K. Sharma, Adv. for the defendant. I am undertaking that the defendant will not interfere in the physical possession of the plaintiff and that the defendant will not dispossess the plaintiff as the defendant has no concern with the suit premises. ROandac Sd/-B. L. Garg sd/- Sd/- Sub Judge Ist Class: advocate Ram Gopal Delhi 18. 04. 1978 sd/- examiner 24. 04. 1978' ( 2 ) CONSEQUENTLY, the plaintiff/respondent withdrew his suit and the court passed the following order :- 'in view of the statement of the plaintiff and the counsel for the plaintiff, the suit is hereby dismissed as withdrawn and the defendant will be bound by the statement of his counsel. the file be consigned to Record room. ' ( 3 ) ON 05. 06. 1978 at about 8. 00 a. m. the respondent got the wind of appellants' plan to take undue advantage of the fact that the courts were closed due to summer vacation for one month and they would forcibly occupy the suit land and erect structures thereon. On receipt of this information the plaintiff visited the spot where the appellants came there in his presence with a truck loaded with bricks for storing it on suit land but finding that the plaintiff was present on the spot, the appellants vamoosed along with the truck. On receipt of this information the plaintiff visited the spot where the appellants came there in his presence with a truck loaded with bricks for storing it on suit land but finding that the plaintiff was present on the spot, the appellants vamoosed along with the truck. Thereafter, the plaintiff filed the instant suit for permanent injunction with the prayer that the appellants be restrained from interfering with the peaceful enjoyment of the plaintiff in respect of of the suit land or from entering upon and occupying or taking possession of it. In the alternative it was also prayed that in the event the appellants had entered into and occupied or possessed or having succeeded in erecting any constructions / structures on it, a mandatory injunction order be passed directing the appellants to vacate the suit land and remove all structures and buildings erected by them on it. ( 4 ) IN his written statement, Ram Gopal, appellant no. 1 listed the following defences. The appellants have purchased the case property from Smt. Jagan Dev. Smt. Jagan Devi had purchased the same from its previous owners shri Amir Singh and others, benami in the name of Bimla Devi, appellant no. 2. It was explained that Jagan Devi is in possession of the property in dispute and appellant Ram Gopal had no right, title or interest in the property in suit nor he had any control over the property in suit. It was explained that Jagan Devi, mother of appellant no. 1 had purchased the above said property in the beginning of March 1978 and the vacant possession was delivered to her by its previous owners, Shri Amir Singh and others. ( 5 ) JAGAN Devi was also arrayed as defendant no. 3 in the suit. She gave ditto version given by her son in her testimony. She contended that she was in actual and physical possession of the plot. She objected that the respondent should have filed the suit for possession. Again the value of the property in dispute is not less than Rs. 40,000/- and the proper court fees has not been pasted on the plaint. Lastly, the suit is bad for mis-joinder of appellants. Again she is not bound by any order that was passed against others. Any statement made by her son would not affect the merits of this case. 40,000/- and the proper court fees has not been pasted on the plaint. Lastly, the suit is bad for mis-joinder of appellants. Again she is not bound by any order that was passed against others. Any statement made by her son would not affect the merits of this case. ( 6 ) THE Trial Judge vide its order dated 28. 07. 1980 dismissed the present suit as having become infructuous because the respondent had made a statement wherein he admitted that for last more than two years he was not in possession of the plot in dispute. ( 7 ) THE Senior Sub Judge, Sh. R. C. Chopra, as then his lordship was, vide his order dated 24th April, 1991, remanded the case back to the trial court reminding the trial court that respondent/plaintiff had in the alternative prayed for a mandatory injunction also and the relief was also to be granted or denied after giving him a fair opportunity of establishing his case. ( 8 ) VIDE order dated 15. 02. 1986 the trial court decreed the suit in favour of the plaintiff, wherein it restrained the appellants from interfering in the possession of the plaintiff over the suit land and by way of mandatory injunction directed the appellants to remove the super-structure from the land within 40 days. ( 9 ) IT is not out of place to mention here that the trial court decided all the three issues in favour of the plaintiff. The said issues are reproduced as follows :- '1. Whether the plaintiff is in possession of the land in dispute as alleged' 2. Whether the defendant no. 3 is the owner in possession of property in dispute' 3. Whether the plaintiff is entitled to the relief claimed'' ( 10 ) AGGRIEVED by that order the appeal was preferred before the first Appellate Court. The First Appellate Court vide its order dated 27. 09. 1989 again remanded the case back to the Trial Court because it found that grant of mandatory injunction, under these circumstances without recording any finding as to when the defendants took over possession of the suit land is not warranted by law. He framed the following additional issue and remanded the case for re-trial vide its order dated 27. 09. 1989 again remanded the case back to the Trial Court because it found that grant of mandatory injunction, under these circumstances without recording any finding as to when the defendants took over possession of the suit land is not warranted by law. He framed the following additional issue and remanded the case for re-trial vide its order dated 27. 09. 1989 :- '3-A. Whether the defendants took over possession of the suit land from the plaintiff after the filing of the suit as alleged in the contempt application' If so, to what extent'' ( 11 ) THE trial court vide its order dated 29. 02. 1992 again decreed the suit in favour of the plaintiff. The court came to the conclusion that there was ample evidence on record to prove that defendants had taken over the possession of the suit land after filing of the suit by the respondent and obtaining the injunction order. ( 12 ) AGGRIEVED by this order the appellants filed the first appeal which also did not ring the bell. Aggrieved by this order the present appeal is presented before this court. The learned counsel for the appellants drew the attention of the court towards the statement made by original plaintiff, Late sunder Lal on 28. 07. 1980, wherein he stated :- 'statement of Plaintiff Shri Sunder Lal on S. A. Presently, the defendants are in possession of plot in dispute. They are in possession from last two years and three months. I am no more in possession. He took possession after stay order of this court. ' The suit for permanent injunction was filed on 05. 06. 1978. The learned counsel for the appellants vehemently argued that the statement made by the original plaintiff in the court clearly goes to belly his case. He submitted that as per plaintiff's statement, the appellants are in possession of the suit property w. e. f. 28. 04. 1978. He stressed that the case of respondent stands demolished root and branch. ( 13 ) THE second submission made by the learned counsel for the appellant was that the appellant has produced copy of Khasra Girdawari exhibited as Ex. P2 which goes to show that during the year 1976-77 he was in possession of the suit land. He explained that the said document was not proved in accordance with law. ( 13 ) THE second submission made by the learned counsel for the appellant was that the appellant has produced copy of Khasra Girdawari exhibited as Ex. P2 which goes to show that during the year 1976-77 he was in possession of the suit land. He explained that the said document was not proved in accordance with law. Again that document reveals that the respondent, Sunder Lal, was not the owner but a trespasser simplicitor. ( 14 ) THE learned counsel lastly pleaded that the appellant is the lawful owner of the suit land. His mother had purchased the same from Amir singh through registered power of attorney and agreement to sell. ( 15 ) ALL these arguments have left no impression upon the court. First of all, I advert to the statement made by plaintiff/respondent Sunder Lal on 28. 07. 1980. Due to twin reasons, I do not pin importance with the argument urged by the learned counsel for the appellant. First of all, human memory is vicissitudinary. With the passage of time one can have nebulous recollection of memory. Every person does not have a tenacious or retentive memory. The statement made by the plaintiff without seeing the record can be said to be a guess work only. ( 16 ) SECONDLY, the duty of the court is to read the statement as a whole and not in vacua to the benefit of one and to the detriment of other. Sunder Lal clearly, specifically and unequivocally stated that the defendants had taken possession after grant of stay order in his favour. ( 17 ) MOREOVER, the evidence led by the appellant on record clearly goes to show that the appellants took the possession of the premises in dispute after the stay order was granted in favour of the plaintiff. In his testimony the respondent deposed that in the month of October 1978 he came to know that the accused had taken over the possession of his land. He explained that he was ailing during those days and he visited the suit land before filing the contempt application. The lower court was pleased to observe :- 'it would be relevant to mention here that witnesses of defendants could not prove that defendants were in possession of suit property before filing of the suit and granting of injunction in favour of the plaintiff. The lower court was pleased to observe :- 'it would be relevant to mention here that witnesses of defendants could not prove that defendants were in possession of suit property before filing of the suit and granting of injunction in favour of the plaintiff. The statement of defendant witnesses are contradictory to each other. For example DW-2 deposed that his mother had taken possession of premises in dispute in March 1978 and construction was started immediately after taking the possession of land in march 1978. And Sh. Buch Singh Mistri had completed the construction by the april end. On the other hand DW-3 had deposed that said plot was sold in the month of March 1978 and possession was given one and a half month thereafter and smt. Jagan Devi had constructed the said plot within one month if this witness is relied on this would suggest that possession of the plot was taken by Smt. Jagan Devi in the month of April last and construction was completed upto end of may 1978. As stated above this is contradictory to the statement of other witnesses. Regarding period of construction statement of witnesses are also different. According to Sh. B. L. Goel DW-2, the construction was started soon after taking the possession after buying the land in the month of March 1978 and was completed by the April end. If time is calculated, this shows that construction was going on for more than one and a half month. Moreover, this witness was not consistent about the period. Sometimes he deposed that construction was done and completed in one and a half month and he again changed his version by deposing one or one and a half month. DW-4 Sh. Bhudh Singh stated that construction was completed within 20 or 25 days and he did not remember the month but it was about the Holi festival. In my view statement of defendant no. 3 and defendant no. 4 could not provide any benefit to the defendant. ' ( 18 ) NOW, I advert to the statement made by the advocate of the appellants on 18. 04. 1978. He made a statement before the court on 18. 04. 1978 that appellants would not interfere with the physical possession of the respondents and the appellants would not dispossess the respondents as the appellants had no concern with the suit premises. 04. 1978. He made a statement before the court on 18. 04. 1978 that appellants would not interfere with the physical possession of the respondents and the appellants would not dispossess the respondents as the appellants had no concern with the suit premises. This document is main pillar, foundation on which the respondent's case rests, the heart of the matter. It clearly reveals that the appellant is making a vain attempt to take the courts for a ride. He has no hesitation to pull the wires in the eyes of law. After giving undertaking before the court he had no qualms about lying or to put forth a mendacious defence. How could he got into possession of suit property which was possessed by the respondent on 18. 04. 1978. Dallops of mystery surround his version. ( 19 ) IT is not understood as to what Amir Singh has got any interest in the case property. Any person can execute GPO, even though he may be its fake owner. Original papers of ownership from where Amir Singh got the right did not see the light of the day. Khasra Girdawari is per se admissible in evidence, though no presumption of truth can be attached to it. This documentary evidence read in conjunction with undertaking given by the appellant outweighs the other. ( 20 ) THE appeal is meritless and is dismissed at the stage of admission. Copy of this judgment and lower court record be sent to the trial court forthwith.