DHARAMPAL Vs. SATISH KHATANA AND OTHERS

JUDGEMENT

(1.) Feeling aggrieved against the impugned judgment and decree dated 21.11.2016 passed by the learned Additional District Judge, Gurgaon, whereby first appeal of the defendants was dismissed, upholding the judgment and decree dated 05.01.2015 of the learned trial Court, decreeing the suit of the plaintiffs-contesting respondents, defendant No.1 has approached this Court by way of instant regular second appeal.

(2.) Brief facts of the case, as noticed by learned first appellate court in para 3 of its impugned judgment, are that plaintiffs filed the suit for permanent and mandatory injunction on the allegations that a colony which is known as Palam Vihar Extension, was carved out in the land comprising in Khasra No. 88/2 min, 21 min, 20, 89/16/1, 88/19, 88/22, 23, 24, 89/15, 88/11, 12/1, 17 and 18 and 93/1, 2/1 situated within the village Chauma, Tehsil and District Gurgaon. Plaintiff No.2 purchased two plots bearing No.65 and 66 situated in the above named colony vide registered sale-deed dated 17.07.1995 from Sh. C.S.V. Nair etc. Plaintiff No.2 has sold the plot in question bearing Nos.65 and 66 to plaintiff No.1 for a total consideration of Rs.2 lacs. An agreement to sell in this regard was executed by plaintiff No.2 on 104.2005 in favour of plaintiff No.1. The entire sale consideration was paid to plaintiff No.2 on execution of agreement. The plaintiff No.2 had executed a registered irrevocable GPA in respect of the plot in question on 18.07.2005 along with affidavit, receipt, possession letter and indemnity bond in favour of plaintiff No.1. Since execution of the agreement dated 104.2005, plaintiff was coming in possession of the plots in question and only the formalities regarding execution of formal sale-deed were remaining. Therefore, plaintiff No.1 was sole and absolute owner in exclusive possession of the suit property. On 24.10.2007 at about 11.25 a.m., plaintiff received a telephonic call from one of the local residents of the said colony namely Mr. Raj Singh, who informed the plaintiff that defendant Nos. 1 to 4 were conspiring with each other in order to illegally grab the suit property of the plaintiff. On receiving the information, plaintiff reached at the site of the suit property at about 1.00 a.m. and was shocked to see that some construction materials were lying outside the suit property and some labourers were working there and digging the foundation. On being asked, labourers present there informed the plaintiff that they have been employed by Mr. Dharampal, Mukesh Sharma, Anuj Kumar, Adesh Kumar i.e. defendant Nos.1 to 4. Thereafter, plaintiff made a call to the police but the police officials who attended the call refused to come there and asked him to go the local police station. Thereafter, all the laborers left the site and ran away from the site. Upon inquiry, it was found that the gang of above named defendant Nos.1 to 4 were involved in grabbing the property of others illegally by trespassing on the same. The matter was reported to the police and on 30.10.2007, plaintiff and defendant Nos.1 to 4 were called by local police for discussion and mutual settlement. Defendant Nos.1 to 4 threatened the plaintiff of dire consequences, if the plaintiff pursue that complaint further. Even after repeated request of the plaintiff, no action was taken against defendant Nos.1 to 4. Because of this conduct on the part of local police, plaintiff was left no option but to inform the Higher Authorities regarding the land grabbing by the defendant Nos.1 to 4. In this regard, complaint through Email as well as in writing was sent to Director Vigilance Haryana Police, Additional Director Vigilance Haryana Police, Commissioner of Police, Gurgaon, Chief Minister of Haryana as well as Lt. Governor of Haryana, CBI etc. However, no action was taken by any of the authorities against defendant Nos.1 to 4 and they continued to threaten the plaintiff of dire consequences. Due to this act on part of defendant, plaintiff and his family have been living in constant fear to their life and property. The defendants have no right, title or interest in any manner, whatsoever in the suit property and there is eminent threat on the part of defendants to dispossess the plaintiff forcibly and to create third party interest to the suit property. During the proceedings, an application U/o 6 Rule 17 of CPC was filed by the plaintiff for amendment in plaint, which was allowed. In the amended plaint, it was stated that on account of non-granting of interim stay, the defendants illegally encroached upon the plaintiff's land and took possession of the suit property during the pendency of the suit and has raised illegal and unauthorized construction thereon.

(3.) Having been put to notice, defendants appeared and filed their contesting written statement, raising more than one preliminary objections. Plaintiffs filed their replication. On completion of pleadings of the parties, learned trial Court framed the following issues: -