Delhi District Court
Sh. Om Praka S H vs Sh. Sus Hil Batra on 28 April, 2010
Suit No. 1435/08
IN THE COURT OF SH. SANJAY SHARMA, JSCC CUMASCJ
CUMGUARDIAN JUDGE (WEST): DELHI
Suit No.14 3 5 / 0 8
Unique Case ID No. ______________________
Sh. Om Praka s h
S /o Sh. Raja Ram
R/o 61, Kilokri
Near Mahara ni Bagh
New Delhi 110014. ......Plaintiff
Versus
Sh. Sus hil Batra
Laxmi Super Service Station
Laxmi Bai Nagar
New Delhi 110003. .....Defenda n t
Date of institution of the suit : 08.07.199 9
Date on which order was reserved : 17.04.201 0
Date of decision : 28.04.201 0
J U D G M E N T
1.The plaintiff filed a suit for perma n e n t injunction against the defenda n t for a decree of perm a n e n t injunction restraining the defenda n t, his agents, represe n t a tives and associates from disposse s sing the plaintiff from a portion of the premises / c o m p o u n d of Laxmi Super Service Station in Laxmi Nagar, New Delhi - 110003 (hereinafter referred as 'the said portion') as shown in red in the site plan Ex. PW 1 / C.
2. The case set out in the plaint is that the plaintiff is a tena n t in respect of the said portion under the defenda n t since 1976. It is stated that initially, rent of the said portion was Rs. 300 per month inclusive of electricity and water charges. The defenda n t enha n ce d the rent from time to time and at present, rent of the said portion is Rs. 600 per mont h inclusive of electricity and water charges. The plaintiff is regularly paying the rent of the said portion to the defenda n t. The defenda n t never issued any rent receipt to the plaintiff.
Page 1/14 Suit No. 1435/083. According to the plaintiff, he is in physical posses sion of the said portion since the inception of his tena ncy. The plaintiff is run ni ng a tyre pu nct u r e and repairs works hop in the said portion. The said busine s s is only source of livelihood of the plaintiff and his family member s. The said portion is open and there is no constr uction. The plaintiff covers the said portion with 'Tripal' in sum m er and rainy season s . The plaintiff was also challaned by the New Delhi Municipal Council (In short 'the NDMC') from time to time and he paid the challan amou n t . It is stated that the plaintiff is a tena nt in respect of the said portion and there exists no constr u ction but the NDMC issued notice of asses s m e n t of house tax of the said portion to the plaintiff. The plaintiff raised objection and explained the facts to the NDMC but the NDMC asses se d the house tax in respect of the said portion in his name. The plaintiff was constrai ned to pay the house tax to the NDMC. It is stated that there are scooter mecha nic, air filling, pollution control centre, mecha nic works hop besides diesel and petrol filling machine s.
4. Main grievance of the plaintiff is that the defenda n t was compelling him to enha n ce the rent from 600 per mont h to Rs. 1,000 per mont h as the rental value increased considera bly. The plaintiff expressed his inability to pay the said rent. The defenda n t started haras si ng the plaintiff and withheld the supply of electricity to the said portion so that the plaintiff cannot use compres sor for filing air in tubes. The defend a n t removed the Tripal forcibly on 07.07.19 9 9 at 11 am and discon nected the electricity supply. The defenda n t and his muscleme n threate ne d the plaintiff to vacate the portion. The plaintiff approac he d the local police but the police did not take any action. Apprehen di ng disposses sion, the plaintiff filed the suit for perm a n e n t injunction against the defenda n t .
5. In the Written Stateme n t, the defenda n t controvert ed the avermen t s made in the plaint. The defenda n t contende d that there is no person with the name of the defenda n t or any busine s s establis h me n t with the name of Luxmi Super Service. It is contended that Laxmi Super Service is entering appear a n c e and filing reply as the defenda n t.
Page 2/14 Suit No. 1435/086. The case of the defenda n t is that the plaintiff encroached into the premises of the defenda n t in the intervening night of 5 6 th July, 1999. The defenda n t lodged a complaint with the P.S. Sarojini Nagar, New Delhi. It is contended that the plaintiff used to sit on the pedestria n path and therefore, he was challaned by the NDMC for time and again. It is contended that the plaintiff is not a tena nt of the defenda n t in respect of the said portion. It is contended that the plaintiff is a trespa s s er. It is contended that the plaintiff illegally connected his instr u m e n t s with the electricity of the defenda n t. It is stated that the plaintiff is stealing electricity and a report in that regard was lodged with P.S Sarojini Nagar. It is stated that the alleged rent receipt is neither in the name of the plaintiff nor issued for the purpose of rent. It is denied that the plaintiff is in physical posses sion of the said portion. It is stated that the plaintiff has been doing work on the road belonging to NDMC and not in the premises of the defenda n t. It is stated that the plaintiff is a partner of M/s Lovely Tours, Shop No.5, Safdar Hash mi Marg, Mandi House, New Delhi. It is stated that the suit premises was leased by the Hindu s t a n Petroleu m to the defenda n t and house tax of the said premises cannot be in the name of the plaintiff. It is stated that the said portion cannot be indepe nde n tly asses se d in the name of the plaintiff.
7. It is further case of the defenda n t that earlier, there was a mecha nic, namely Jagdis h Logani in the premises who alleged himself a tena n t and filed suit No. 46 of 1988 titled 'Jagdish Logani v. Sushil Kumar '. The said suit was dismissed by the Court of Sh. H.S. Shar m a, Sub Ju dge, Ist Class, Delhi on 13.10.198 9. The said Sh. Jagdis h Logani preferred an appeal against the said dismiss al. The Court of Ms. Deepa Sham a, Senior Civil J udge, Delhi dismissed the appeal on 03.12.19 9 6 . and Hon'ble High Court of Delhi dismis sed the RSA No. 139 / 9 6 on 05.02.19 9 9 and finally, Jagdis h Logani surre ndered the posses sion of the premises to the defenda n t on 05.07.19 9 9 and thereafter, the plaintiff trespa s s e d into the premises of the defenda n t . It is stated that there is an open area in the defenda n t's premises and the defenda n t trespa s s e d into that area. It is stated that the defenda n t can't let out the premises.
Page 3/14 Suit No. 1435/088. In the replication, the plaintiff controvert ed the contentions raised in the written stateme n t and reaffirmed the averme nt s made in the plaint. The plaintiff reiterated that he is a lawful tena nt of the defend a n t and electricity and water are provided by the defenda n t. He denied that he encroac he d upon the premises of the defenda n t . It is stated that the plaintiff is run ni ng his works hop within the compou n d of Laxmi Super Service Station.
9. On the pleadings of the parties, the following issues were framed in this matter on 08.05.200 3:
1. Whether the plaintiff is entitled to relief of perman e n t injuncti o n as claim ed in the plaint ? OPP
2. Relief.
10. In the evidence, the plaintiff appeared as PW1 and Sh.Bab u Ram / h i s employee as PW 2 and examined Sh. Jas p al Singh, Tax Inspector, House Tax Depart me n t , NDMC as PW 3.
11. The defenda n t appeared as DW1 and examined Sh. Jai Narain Mishra, Area Sales Manager, HPCL as DW2.
12. The plaintiff (PW1) filed his evidence by way of an affidavit. He placed on record a receipt dated 21.05.19 9 6 pertaining to charges for tyre repair (which he alleged rent receipt) Ex. PW1 / B, Site plan of the said portion Ex. PW1 / C, Photograp h s Ex. PW1 / D 1 D3, challan s issued by NDMC Ex. PW1 / 1 to PW1 / 6, Notice dated 10.02.19 8 6 issued to the plaintiff by NDMC for asses s m e n t of rateble value and House Tax w.e.f. 01.04.19 8 6 Ex. PW1 / F, Notice issued by the NDMC to the plaintiff for payment of Rs.1284 / on accou n t of Tripal Sheet at Petrol Pump, Aurobindo Marg for the period 01.04.198 6 to 31.03.19 8 7 Mark A and complaint dated 15.07.19 9 9 to the P.S. Sarojini Nagar Ex. PW1 / G. Page 4/14 Suit No. 1435/08
13. In his cross examina tion, Plaintiff (PW1) stated that he is doing the busines s of tyre punct u re and repair at Laxmi Super Service, near Delhi Haat, H.P. Petrol Pump since 1976. He stated that he is a tena n t, initially, the rent was Rs. 300 and subseq ue n tly, it was increased to Rs. 600 in the year 1989. He stated that he had paid the rent to the Manager at relevant times and at present, Mr. Gupta is Manager. He denied the suggestion that he was not a tena n t in respect of the said portion and therefore, no receipt was issued to him by the defenda n t. He stated that the receipt was initially issued towards the rent of three mont h s of Rs.900 / by some Manager, namely Mr. Kisha n which is Ex. PW1 / B and thereafter, no receipt was issued to him but he kept on paying rent to them. He stated that he used to be challaned beca u se he used to keep some tools and machines on the road and therefore, NDMC used to lift them and Challan him.
14. In his affidavit filed in evidence, Sh. Babu Ram (PW2) deposed that he is working with the plaintiff in his shop since 1985. He deposed that the plaintiff used to pay the rent to the defenda n t / l a n d lord in his presence @ Rs.600 / p.m. inclusive of electricity charges. He deposed that the landlord used to deliver receipts showing other purpose s tha n the receipt of rent. He deposed that plaintiff used to pay rent regularly. He deposed that the shop of the plaintiff was challaned by NDMC Officials several times which were paid by the plaintiff. In his cross examina tion, PW 2 stated that he is working with the plaintiff as a tyre pu nct u r e mecha nic at Petrol Pump Luxmi Super Service since 1989. He stated that the rent of the suit land is Rs.600 / which was paid by the plaintiff to the defenda n t. He deposed that the committee used to lift their goods becau se some of them used to be lying on the footpat h.
15. PW3 brought the sum mo ned record from NDMC. He proved a copy of Resolution No. 46 of the ordinary meeting held on 24.03.198 6 Ex. PW3 / 1 and the stateme n t of accou n t of the plaintiff / a s s e s s ee for the year 1987 88 and 1988 89 Ex.PW 3 / 2. In his cross examina tion, he stated that he was not aware about the docu me n t s submitted by the plaintiff when notice was issued to him. He stated that house tax is dema n de d from the owner as well as occupier of the premises.
Page 5/14 Suit No. 1435/0816. The defenda n t filed affidavit in evidence. He proved partner s hi p deed Ex. DW 1 / 1, Dealers hip Agreement dated 12.07.19 9 4 between the defenda n t and HPCL Ex. DW 1 / 2 , receipts relating to payment of license fee to the HPCL Ex. PW1 / 3 (Colly.) and electricity bills Ex. DW1 / 4 . A copy of the complaint dated 10.07.19 9 9 is Ex. DW1 / 5.
17. In his cross examina tion, DW 1 stated that Luxmi Super Service exists since 1962. He stated that he is one of the part ner s of M/s. Laxmi Super Service since 1962. He stated that the total area of the petrol pu mp is 120 feet x 100 feet. He stated that complaint Ex. DW1 / 5 was not signed by him. He stated that it was signed by Sh. Bashir Ahmed, Manager at that time. He stated that after the complaint, there was an enquiry by the concerned official. He stated that they are maintai ni ng the accoun t s of M/ s Luxmi Super Service. He denied the suggestion that the receipt Ex. PW1 / B was issued by his official. He stated that he cannot produce the receipt book containing the receipt No. 002648 relating to the year 1976. He stated that he did not lodge any complaint agains t the plaintiff as well as his brothers with regard to trespa s s on 05.07.19 9 9 . He stated that on 07.07.19 9 9, there was a dispute between the plaintiff and the defenda n t's official on the issue of water and electricity. He deposed that they had not tried to disposse s s the plaintiff forcibly from the suit premises.
18. Sh. Jai Narain, Area Sales Manager HPCL (DW2) proved the Dealers hip Agreement Ex. DW1 / 2, House Tax receipts and rent receipts including correspon de n ce with L & DO with respect to the land under ne a t h the petrol pump Ex. DW2 /A. He deposed HPCL has a compa ny owned petrol pum p Luxmi Super Service at INA market, New Delhi. He deposed that Mr. Sus hil Kumar is the partner of the defend a n t and their agent for operation of the said petrol pum p. He deposed that Ministry of Urban Developme n t allotted the suit premises to HPCL on rental basis. In his cross examina tion, he deposed that only license to run the Petrol Pump is granted as per their policy. He denied the suggestion that HPCL has not paid property tax to the NDMC prior to 24.12.20 0 7.
Page 6/14 Suit No. 1435/0819. I have heard argume n t s of Sh. I.S. Cha u h a n , Advocate for the plaintiff and Sh. R.K. Dhawa n, Advocate for the defenda n t and peru sed the pleadings of the parties and evidence on record. I have also considered the written argume n t s and case law relied by the plaintiff.
20. On careful asses s m e n t of the evidence on record in the light of the pleadings of the parties and argu me n t s addres se d by Ld. Counsel for the parties, issue wise finding is as under:
ISSUE NO.1:
21. Ld. Counsel for the plaintiff argued that the plaintiff is in peaceful posses sion of the said portion shown in red in the site plan Ex. PW1 / C since 1976. He argued that the plaintiff (PW1) exhibited the rent receipt dated 21.05.197 6 Ex. PW1 / B, Photograp h s Ex. PW 1 / D 1 to 3, NDMC Challans Ex. PW1 / 1 to 6, notice dated 10.02.19 8 6 issued by the NDMC to the plaintiff regarding asses s m e n t of the said portion to House Tax Ex. PW1 / F and complaint dated 15.07.19 9 9 Ex. PW1 / G to prove his uninterr u p te d posses sion and tena ncy under the defenda n t since 1976.
22. Ld. Counsel for the plaintiff further argued that the defenda n t did not raise any objection at the time of exhibition of the said docume n t s by PW 1 and PW 2 nor made any suggestion during the cross examina tion. He argued that the defenda n t did not dispute the correctnes s of the site plan Ex. PW 1 /C. He argued that the deposition of the plaintiff (PW1) in his affidavit that he is doing the busine s s of tyre punct u re at the suit property and he is a tena nt over there and initially, the rent was Rs. 300 p.m. and it was increase d to Rs. 600 and he paid the rent to the Manager at the relevant times, remained un rebutte d as the defenda n t did not dispute the correctnes s of the said depositions in his cross examina tion. He argued that there is no suggestion to the plaintiff on the point of relations hip of landlord and tena nt. He argued that the defend a n t neither filed any docu me n t a ry evidence nor examined any witness to prove their defence pertaining to litigation with Jagdis h Logani. He argued that testimony of PW 2 also remained un rebutted.
Page 7/14 Suit No. 1435/0823. Ld. Counsel for the plaintiff further argued that there is no suggestion to the contrary regarding the relations hip of landlord and tena n t between the plaintiff and the defenda n t and rent paid by the plaintiff to the defenda n t in the presence of PW2 and therefore, avermen t s made in the affidavit of PW 1 and PW2 are deemed admitted by the defenda n t as provided under Section 138 of the Evidence Act, 1972 that the absence of cross examina tion on a point of stateme n t in examina tion in chief, the point is deemed admitted. He argued that the testimony of PW 1 and PW2 is creditworthy and un impeac he d. He relied upon 2001 (3) Civil Court Cases 622 (SC) and AIR 2000 SC 3207 in support of his argu me n t s .
24. Ld. Counsel for the plaintiff further argued that the posses sion of the plaintiff is establis hed from the evidence of PW 3. He argued that PW 3 brought the public record. He argued that PW 3 / 1 and PW 3 / 2 prove that the plaintiff is in physical posses sion of the said portion. He argued that the defenda n t (DW1) stated in his cross examina tion that written state me n t was not signed by him. He argued that DW 1 stated that they had not tried to disposse s s the plaintiff from the suit property. He argued that the defenda n t stated that no complaint was filed by him in connection with the incident dated 05.07.199 9. He argued that the defenda n t neither produced Mr. Bashir Beg nor filed docu me n t relating to case of Jagdis h Logani. He argued that the defenda n t did not prod uce receipt no. 002264 8. He argued that the affidavit filed by the defenda n t in evidence is beyond the pleadings.
25. Ld. Counsel argued that the plaintiff is entitled to a judgme nt in view of Order 8 Rule 5 CPC as there is no specific denial of the averme n t s made in the plaint as held in Ram p a l v. Savi t a Verm a . He argued that adverse inference should be drawn against the defenda n t for withholding the evidence. He relied on 2009 (3) Civil Court Cases 498 (Allahab a d). He argued that the defenda n t did not file any docu me n t to prove that the plaintiff trespa s s e d into the suit premises on 05.07.19 9 9 whereas DW 1 admitted in his cross examination that there was a dispute between the plaintiff & his officials on accou n t of water and electricity on 07.07.19 9 9.
Page 8/14 Suit No. 1435/0826. Ld. Counsel further argued that PW1, PW 2 and PW 3 and docume n t a ry evidence proved on record show that the posses sion of the plaintiff is valid, lawful and un obstr ucted. He argued that relied upon AIR 1982 A.P. 1953, 43 (1991) DLT 570, AIR 1980 Kerala 224 and 2004 (1) SCC 769 in support of his argu me n t that plaintiff cannot be disposses s ed without due process of law. Finally, he argued that the defenda n t cannot derive any advant age from the order passed by Ld. ARC on his application under Section 27 of the Delhi Rent Control Act as the plaintiff had withdraw n his appeal without prejudice to his rights and contention s in the civil suit.
27. Ld. Counsel for the defenda n t argued that the plaintiff is a trespa s s e r. He argued that the petition U/S 27 of the Delhi Rent Control Act filed by the plaintiff for deposit of rent of the said portion was dismissed with the observation that there is no jural relations hip of landlord and tena n t between the plaintiff and the defenda n t . He argued that the plaintiff encroac he d upon the premises of the defenda n t on 05.07.19 9 9. He argued that the plaintiff used to sit on the pavement and he was challaned by the NDMC several times in that connection. He argued that the paymen t of House Tax to the NDMC and deposit of challan amou n t with the NDMC would not create a contract of tena n cy between the plaintiff and the defenda n t. He argued that the suit premises is the property of L & DO which was given on lease to HPCL by the Governme n t of India. He argued that Clause 34 of the Dealers hip Agreement between the defenda n t and HPCL Ex. DW1 / 2 provides that the dealer shall not assign, mortgage or part with or otherwise tran sfer his interest in the suit premises to anyone. He argued that the suit premises was given on license to the defenda n t by HPCL. He argued that DW2 proved the Dealers hip Agreement Ex. DW1 / 2 and House Tax Receipts and Rent Receipts with regard to payment of House Tax of the suit premises to the NDMC and L & DO. He argued that land meas u ri ng 106.29 sq. mtrs. is alloted to Delhi Metro Rail Corporation for MRTC project vide Ex. DW2 /A. He argued that the plaintiff encroac he d upon the public land and he is not entitled to any protection by law.
Page 9/14 Suit No. 1435/0828. Onus to prove the issue no. 1 was upon the plaintiff. It is the specific case of the plaintiff that he is a tena nt in respect of the said portion forming part of the premises of Luxmi Super Service Station since 1976. It is further case of the plaintiff that initially, rent of the said portion was Rs.300 / per mont h inclusive of water and electricity charges and the defenda n t enha nce d the rent, from time to time, and presently, the rent of the said portion is Rs.600 / per mont h inclusive of water and electricity charges.
29. From the careful perus al of the record, it is clear that the plaintiff has not placed any docu me n t a ry evidence on record to establish the existence of relations hip of landlord and tena n t between the plaintiff and the defenda n t. The plaintiff relied upon Ex. PW1 / B to prove that he paid rent of Rs.900 on 21.05.1 9 7 6. On perus al of Ex. PW1 / B, it is clear that it is a receipt dated 21.05.1 9 7 6 for Rs. 900 on accou n t of tyre repairs. It is nowhere mentioned therein that it was issued to the plaintiff. It is not mentioned therein that the said receipt was issued for three mont h' s rent of the said portion in favour of the plaintiff. Moreover, the plaintiff in his cross examina tion stated that he paid the rent to the Manager at the relevant times and at present, Mr.Gupt a is Manager. He stated in his cross examina tion that receipt of Rs.900 / was initially, issued toward s the rent of three mont h s by Mr. Kisha n and thereafter, no receipt was issued to him but he kept on paying rent. Besides Ex. PW1 / B, there is no other docume n t a ry evidence to prove the payment of rent to the defenda n t. It is evident that the plaintiff never paid rent of the said portion to the defenda n t.
30. PW2 did not support the case of the plaintiff. He deposed that he was working with the plaintiff since 1985. He deposed that the plaintiff used to pay the rent to the landlord / d efe n d a n t in his presence @ Rs.600 / per mont h inclusive of electricity charges and the defenda n t / landlord used to deliver receipts showing other purposes other than the receipt of the rent. It is the admitted case of the plaintiff that the defenda n t never issued any rent receipt in token thereof except one i.e. Ex. PW 1 /B dated 21.05.19 7 6.
Page 10/14 Suit No. 1435/0831. I am of the considered opinion that the plaintiff has failed to establis h the relations hip of landlord and tena nt between the plaintiff and the defenda n t.
32. It is the admitted case of the plaintiff that NDMC used to challan him for keeping tools and machine s on the pedestria n way. Ex. PW1 / 1 to PW1 / 6 are the challan s issued by the NDMC against the plaintiff for keeping his tools and machi nes over the pavement during 16.12.198 0 to 15.07.19 9 9. If the plaintiff was run ni ng his works hop in the said portion as shown in the site plan Ex. PW 1 / C then why the plaintiff was challaned by NDMC from 16.12.198 0 to 15.07.19 9 9 for keeping tools and machine s on the pedestria n way. It is relevant to note that the plaintiff apprehe n d e d dispos se s sion on 07.07.99 and filed the suit on 08.07.1 9 9 9 whereas he made the complaint Ex. PW 1 /G to the police on 15.07.1 9 9 9 after filing of the suit. It is relevant to note that thereafter, the plaintiff was never challaned by the NDMC. It is clear that before 15.07.199 9, the plaintiff was run ni ng his tyre repair workshop on the pavement in front of the Luxmi Super Service and therefore, he was challaned by the NDMC for keeping his tools and machines on the pavemen t as deposed by PW 2 that the shop of the plaintiff was challaned by the officials of the NDMC several times which was paid by the plaintiff.
33. In his plaint and para no.4 of his affidavit filed in evidence, the plaintiff stated that he filed several objections to the notice issued by the NDMC for asses s m e n t of House Tax in respect of the said portion in his name. The plaintiff has not filed anything on record to show that he raised any objection for asses s m e n t of House Tax in respect of the said portion in his name. PW 3 stated that he cannot say what docume n t s were sub mitted by the defenda n t. Moreover, Ex. PW3 / 1 shows that the plaintiff neither appeared before the committee nor filed any objection in respect of the notice issued to him by the NDMC for asses s m e n t of House Tax in respect of the said portion in his name. The plaintiff neither informed the defenda n t nor HPCL regarding his asses s m e n t for H. Tax by the NDMC. It is not clear in what capacity he was assess ed to H. Tax.
Page 11/14 Suit No. 1435/0834. It is clear from Ex. DW2 /A that HPCL was paying property tax to the NDMC as an owner of the premises given on license to Laxmi Super Service Station Petrol Pump. Mere asses s m e n t of House Tax in the name of the plaintiff for two years i.e. 1987 88 and 1988 89 could not create a contract of tena ncy between the plaintiff and the defenda n t.
35. In his testimony, DW 2 proved on record that Ministry of Urban Developme n t leased the land under ne a t h the petrol pum p to the HPCL. HPCL owned the Petrol Pump and the defenda n t is the agent of the HPCL to operate their petrol Pump. He has proved that the premises was given to the Laxmi Super Service for run ni ng a Petrol Pump as a licensee vide dealers hip agreeme n t Ex. DW1 / 2. M/s. Laxmi Super Service Station has no authority in terms of Clause no. 34 of the dealers hip agreeme nt Ex. DW 1 / 2 to let out or grant any licence in respect of any portion of the suit premises to anyone. PW1 also stated in his cross examination that the suit premises is a HPCL Petrol Pump. Moreover, in Notice of asses s m e n t of House Tax to the plaintiff Ex. PW 1 / F, House Tax Reciept dated 16.12.88 of Rs. 1284.10 / Ex.PW 1 / 3 and House Tax Receipt dated 27.01.19 8 8 of Rs. 2560.48 Ex. PW1 / 4, the description of the plaintiff is Sh. Om Prakas h, H.P. Petor Pump, New Luxmi Super Service, Aurobindo Marg, New Delhi. The plaintiff was well aware that the suit premises was owned by the HPCL. It is proved that the suit premises is a Public Land leased out to the HPCL for Petrol Pump.
36. Contention of Counsel for the plaintiff that non cross examina tion of PW1 & PW2 on vital parts of their testimony with regard to relations hip of landlord and tena nt and rate of rent would not advance his case. On careful consideration of testimony of PW 1 and PW 2, it is clear that their testimony suffer from inherent contradictions as noticed above. Further, PW 1 and PW 2 were cross examined on the issue of relations hip of landlord and tena nt and rate of rent etc. and the defenda n t elicited material contradictions in their testimony as stated above. The plaintiff had to prove his case by leading cogent evidence. The plaintiff has failed to prove that he is a tena n t of the defenda n t in respect of the said portion @ Rs. 600 / per mont h.
Page 12/14 Suit No. 1435/0837. Let us have a glimpse of the case law relied by the plaintiff. In Babu Lal v. D.D.A. [43 (1991) DLT 570], Hon'ble High Court was dealing with an appeal arising out of an order dismis sing application under O.39 R. 1 & 2, CPC of the petitioner. Hon'ble High Court directed the parties to maintain stat u s quo as of posses sion during the pende ncy of the suit. Moreover, in that case, the petitioner claimed himself in posses sio n of the shop as on owner. In the present case, the plaintiff is not claiming himself as an owner of the suit premises.
38. In Kar t h i n y a y a n i Amm a v. Govin d a n , AIR 1980 Kerala 224; the plaintiff filed a suit for a declaration of title and posses sion and also for an injunction to restrain the defenda n t s from interfering with the suit property. Herein, the plaintiff is not claiming any title to the said portion.
39. In Rame Gowd a (Dead) by LRs v. M. Vara d a p p a Naidu (Dead) by LRs. , (2004) 1 SCC 769; Hon'bel Supreme Court held that it is the settled posses sion or effective posses sion of a person which would entitle him to protect his posses sion even as against the true owner. Such person is entitled to be protected against disposses sion.
40. The plaintiff has also failed to prove that his posses sion is settled. An encroacher cannot be said to be in settled posses sion. The plaintiff has no legal right in the said portion forming part of the premises of the HPCL. The plaintiff encroached upon the public land belonging to the L & DO, which is presently on lease with HPCL and licensed to Laxmi Super Service for run ni ng a Petrol Pump. The plaintiff is an encroac her of public land. It is well settled that an encroac her of public land is not entitled to be protected by way of injunction.
41. Possession of public property by individuals or group of individu als will not create any right and the court has to act guardia n of public property and should not pass order of injunction in favour of encroach er. Reference can be made to Mohan Lal v. Mohan Singh , 1995 PLJ 48. Public property cannot be allowed to be encroac hed. No right can be claimed to encroac h upon public property. No injunction could be granted to any encroacher agains t a true owner.
Page 13/14 Suit No. 1435/0842. In view of the aforesaid discus sion, the plaintiff is not entitled to the relief of perma n e n t injunction as prayed in the suit. Accordingly, issue no. 1 is decided in favour of the defenda n t and against the plaintiff.
ISSUE NO. 2 (RELIEF):
43. In view of the above discus sion, the suit for perma n e n t injunction filed by the plaintiff against the defenda n t is dismisse d with costs.
44. Decree sheet be drawn accordingly.
45. File be consigned to Record Room.
Annou nced in the open court today the 29 th April, 2010.
(SANJAY SHARMA) JSCC cum ASCJ cum Guardia n Ju dge (West), Delhi 29.04.2 0 1 0 Page 14/14