Delhi District Court
Mamta vs The Commnissioner And Anr on 26 April, 2025
IN THE COURT OF MS ANURADHA JINDAL, ADDL. SENIOR CIVIL JUDGE-CUM- JUDGE SMALL CAUSE COURT-CUM-
GUARDIAN JUDGE, DISTRICT: SOUTH, NEW DELHI CS SCJ 1167/2019 MAMTA GUPTA VS. THE COMMISSIONER & ANR.
CNR No. DLST030018922019 Mamta Gupta w/o Sh. Sanjay Gupta R/o H. No. 140, Block-G, Tigri, Village Devli, Sangam Vihar, New Delhi-110080. .....PLAINTIFF VERSUS
1) The Commissioner of Police Police Headquarter, IP Estate, ITO, New Delhi.
2) The SHO, PS-Tigri, New Delhi-110029.
.....DEFENDANTS
SUIT FOR MANDATORY AND PERMANENT INJUNCTION
Date of institution : 07.12.2019
Date of reserving judgment : 26.03.2025
Date of pronouncement of judgment : 26.04.2025
CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 1 of 37
The Case
1 This is a civil suit instituted by the plaintiff seeking the relief of permanent and mandatory injunction against the defendants, who are public officials representing the Delhi Police. The suit arises from a dispute concerning a stretch of land described by the plaintiff as a gali, a narrow passage or access way, which she claims lies between her residential property and a police structure that was formerly a Police Chowki (police post) and is now being developed into the Police Station Tigri in G Block, Sangam Vihar, New Delhi.
2 According to the plaintiff, she has been residing with her family at Plot No. G-70, measuring 140 square yards, stated to form part of Khasra No. 37, Village Devli, Tehsil Hauz Khas (Mehrauli), New Delhi. She claims to have purchased this property in the year 2003 and to have been in peaceful possession ever since. Adjacent to her property, she asserts, exists an old gali that she and her family have regularly used for access and daily movement. It is her case that over the years, she has acquired easementary rights over this gali, which she describes as being more than 50 years old and commonly used by residents of the area.
3 The plaintiff alleges that during the recent development and construction of a permanent structure for Police Station Tigri, being raised on the site where the old police chowki once stood, the defendants have encroached upon the said gali. She asserts that this has resulted in obstruction to her access and a violation of her easementary rights, and that despite repeated objections, the CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 2 of 37 defendants continued with the construction activity. She claims that the actions of the defendants are illegal and without any lawful authority, and that they are causing irreparable harm to her use and enjoyment of the property. On this basis, she seeks a decree restraining the defendants from proceeding with the construction over the disputed gali.
4 The defendants have contested the suit in entirety. It is their categorical stand that the gali in question is not a private or public passage but rather a portion of government land falling under Khasra No. 25/2, which has been under the control and use of the Delhi Police for over thirty years. They assert that the plaintiff has no title, ownership, or even a right of access over the said portion, and that the construction of the Police Station Tigri is taking place on land which is part of a long-standing police establishment and under lawful government use.
5 The defendants further contend that the documents relied upon by the plaintiff are unregistered and do not establish any enforceable right or title. According to the defendants, the plaintiff herself is an unauthorized occupant of government land, and her present suit is a mere attempt to obstruct a lawful public project by seeking relief through cleverly worded prayers, without asserting any claim for possession or declaration.
6 In view of the above rival contentions, the matter proceeds for determination on the basis of the pleadings, the documents placed on CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 3 of 37 record, and the applicable principles of law. The central issues which emerge for adjudication include the nature and character of the disputed land, the extent of the plaintiff's rights over it, and whether she is entitled to the injunctive reliefs as prayed for in the suit.
7 This Court has duly considered the final arguments advanced by the learned counsel for both parties. The Court has meticulously examined the entire record, giving careful attention to the pleadings, the evidence presented, and the submissions made on behalf of the parties as well as written submissions filed on behalf of defendant. Each aspect of the case has been analysed in light of the relevant facts and law, ensuring that all material brought before the Court has been fully reviewed and assessed in reaching a fair and just decision.
The Plaint 8 The plaintiff is a peace-loving and law-abiding citizen of India and has been residing at the suit property, i.e., Plot No. G-70, measuring 140 square yards, part of Khasra No. 37, situated in G Block, Sangam Vihar, Village Devli, Tehsil Hauz Khas (Mehrauli), New Delhi, along with her family members for the past sixteen years, without any interruption or interference.
9 The plaintiff purchased the said property from Shri Bhagmal, son of Shri Chamaru, resident of B-1226, Sangam Vihar, New Delhi, on 22.04.2003 through a valid transaction. Ever since the purchase, the plaintiff and her family members have been in peaceful, uninterrupted, and exclusive possession and enjoyment of the said CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 4 of 37 property. Adjacent to the plaintiff's property, there existed a temporary police post (Chowki) of PS Sangam Vihar. Over time, a new Police Station named 'Tigri' has been set up at the said location in place of the earlier temporary shed.
10 Between the plaintiff's property and the erstwhile police chowki (now the site of Police Station Tigri), there exists an open gali (lane) which has been in existence for more than 50 years. This gali has historically served as a means of access and easement for the plaintiff, her family members, and other residents of the locality. The plaintiff and her family have regularly used the said gali without obstruction since the time of purchase of the property and have vested easementary rights over the said passage by way of uninterrupted, continuous, and peaceful use.
11 It has come to the plaintiff's knowledge that the defendants have commenced construction of a permanent structure for the new Police Station Tigri in place of the temporary shed and are attempting to encroach upon the gali, thereby blocking access to the plaintiff's property and curtailing the lawful use of the lane.
12 The foundation and construction works of the new Police Station structure are being extended into the gali, thereby infringing upon the plaintiff's right of way and creating permanent obstruction. The plaintiff has repeatedly objected to this encroachment and requested the defendants to refrain from raising any construction over the gali, but the defendants have refused to pay heed.
CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 5 of 37 13 The defendants have no legal right, title, or authority to construct or encroach upon the gali, which is a public/common passage and not part of the land earmarked for the Police Station. The actions of the defendants amount to unauthorised encroachment, causing substantial hardship and irreparable injury to the plaintiff.
14 The plaintiff has no other alternative efficacious legal remedy except to approach this Court by way of the present suit in order to protect her easementary and possessory rights, and to prevent further illegal acts of the defendants. The present suit is within limitation and does not suffer from any legal bar. The balance of convenience is also in favour of the plaintiff and against the defendants. If the defendants are not restrained, the plaintiff shall suffer irreparable harm and loss, which cannot be adequately compensated by monetary damages.
15 The cause of action arose in favour of the plaintiff and against the defendants for the first time on 3rd December 2019, when the defendants began laying the foundation for the new Police Station by partially covering the gali. The cause of action is continuous and still subsists as the construction is ongoing. This Court has territorial jurisdiction to try and entertain the present suit as the suit property, including the disputed gali, falls within the jurisdiction of this Court. For the purposes of court fee and jurisdiction, the suit is valued at Rs. 130/- for the relief of permanent injunction and Rs. 130/- for the relief of mandatory injunction, and appropriate court fees have been affixed accordingly.
CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 6 of 37 16 In view of the foregoing facts and circumstances, it is prayed that this Court may kindly be pleased to:
a.aPass a decree of permanent injunction restraining the defendants, their agents, employees, subordinates, representatives, or any other person acting on their behalf from raising any construction, encroaching upon, or interfering with the plaintiff's use of the gali situated between Plot No. G-70, measuring 140 sq. yards, part of Khasra No. 37, G Block, Sangam Vihar, Village Devli, Tehsil Hauz Khas (Mehrauli), New Delhi, and the site of Police Station Tigri (formerly PS Sangam Vihar Temporary Shed), as specifically shown in the annexed photographs. a.b Pass a decree of Mandatory injunction in favour of the plaintiff and against the defendants thereby directing the defendants not to interfere to carry out the construction on the land of Gali between the property bearing Plot No. G-70, measuring 140 sq. yards, out of Khasra No.' 37, situated G Block, Sangam Vihar, Village Devli, Tehsil Hau Khas (Mehrauli), New Delhi and Temporary Shed of Police Station Tigri specifically shown the Photographs. a.cPass any other or further relief(s) as this Court may deem just and proper in the facts and circumstances of the case, in the interest of justice.
The Written Statement
17 The defendants contend that the plaintiff claims to be the owner and occupant of Plot No. G-70, measuring 140 sq. yards, situated in G CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 7 of 37 Block, Sangam Vihar, New Delhi. She alleges that a gali exists between her property and the premises of the erstwhile Police Chowki Sangam Vihar, now being developed as the newly constituted Police Station Tigri. She asserts that she and her family have enjoyed easementary rights over this gali, and alleges illegal encroachment by the defendants during the construction of the new police station. These claims, however, are wholly misconceived, legally untenable, and factually incorrect.
18 At the very outset, it is submitted that the plaintiff is neither in possession of the disputed gali nor does she have any legal right, title, or interest over the same. It is a settled principle of law that a person who is out of possession cannot claim injunctive relief simpliciter without seeking the remedy of possession. The plaintiff, who admits that the disputed gali lies between her premises and the Police Chowki, is clearly not in possession of the same, and has not even pleaded a claim for possession. On this ground alone, the present suit is liable to be rejected.
19 Furthermore, the plaintiff has failed to place on record any valid or registered title documents to establish her ownership over either the suit property or the disputed gali. The documents relied upon, if any, are vague, unregistered, and devoid of any khasra or site-specific identification. There is no official site plan, no sanctioned layout, and no record from any competent authority to support her claim. Her assertion of easementary usage over a public lane is neither supported by law nor by fact.
CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 8 of 37 20 The gali that the plaintiff refers to is, in fact, not a gali at all. The land in question falls within Khasra No. 25/2, not Khasra No. 37 as claimed in the plaint. This fact is corroborated by the demarcation report issued by the Office of SDM, Saket, which clearly identifies the land as government land under the jurisdiction of the Forest Department. The report also confirms that the land has been under the occupation and use of Delhi Police for more than 30 years, functioning continuously as a part of the Police Chowki.
21 Contrary to the plaintiff's allegations, there exists no public right of way between her property and the Police Chowki. The area she claims to be a gali is actually situated at the rear side of her premises, and there is no direct access from within her property to the disputed portion. The claim of an established easementary right is baseless. The land in question has never been used by the public, and certainly not by the plaintiff, as a regular access route.
22 It is apparent that the plaintiff, through this suit, is seeking to assert an indirect claim of ownership or control over a piece of public land, which she is neither entitled to nor in possession of. The reliefs she seeks, although couched as injunctions, are, in essence, declaratory in nature. By moulding the prayer to appear as one for injunction alone, she has deliberately undervalued the suit and evaded the appropriate payment of court fee.
CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 9 of 37 23 The suit also suffers from fatal procedural defects. The plaintiff has not impleaded the Forest Department or the Land Owning Agency, which are necessary and proper parties to the present litigation. The suit is thus bad for non-joinder of necessary parties. The plaint lacks a properly certified site plan, khasra/khatoni entries, or any municipal sanction supporting the existence of the so-called gali. It is a vague, poorly supported claim built on conjecture.
24 Even otherwise, the suit is an attempt to stall the legitimate and long- overdue establishment of Police Station Tigri, which is being developed by converting the old Police Chowki into a formal station, as per administrative reorganization. The Police Department has already approached the competent authorities for allotment and development of this site, which has been in their control for decades.
25 The plaintiff's claim that the balance of convenience lies in her favour is wholly without merit. The construction of the police station is being carried out on public land, for public benefit, and is essential for law and order in the locality. No irreparable loss or hardship will be caused to the plaintiff, whose claim over the disputed land is entirely unfounded. On the contrary, any injunction at this stage would cause serious administrative hardship and obstruct a public project.
26 It is further submitted that as per the Office Report dated 26.02.2020 issued by the Tehsildar, the entirety of Khasra No. 25/2, which includes both the land claimed by the plaintiff and the disputed CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 10 of 37 portion, is government land falling under the Forest Department. The plaintiff, therefore, appears to be an encroacher herself, and cannot seek equitable relief from this Court.
27 In light of the above facts, it is evident that the plaintiff has no enforceable legal right over the land in question. The suit is an abuse of process, filed with the intention to obstruct lawful public construction on government land. The reliefs prayed for are untenable and unsupported either by legal precedent or documentary evidence.
28 In view of the facts and circumstances stated hereinabove, it is prayed that this Court may graciously be pleased to:
a.aDismiss the suit as being devoid of merit and not maintainable in law;
a.b Award costs of the present proceedings in favour of the defendants and against the plaintiff; and a.cPass any other order(s) that this Court may deem just and proper in the interest of justice.
Determination of Issues
29 On the basis of the pleadings, the following issues were identified:-
i Whether plaintiff is entitled to decree of permanent injunction for restraining the defendants from raising construction at the suit property, as prayed for in prayer clause no. (a)? OPP CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 11 of 37 ii Whether the plaintiff is entitled to decree of mandatory injunction for directing the defendants to not interfere in carrying out one construction on the property, as prayed for in prayer clause no.
(b)? OPP iii Whether suit for injunction simplicitor is not maintainable?OPD iv Whether plaintiff has no locus to file the present suit? OPD v Whether present suit has not been properly valued for purposes of court fee and jurisdiction? OPD vi Whether this court has no pecuniary jurisdiction to entertain the present suit? OPD vii Whether present suit is bad for mis-joinder and non-joinder of necessary parties? OPD viii Relief.
Plaintiff Evidence 30 PW-1 tendered her evidence by way of affidavit, which was exhibited as Ex. PW1/A, bearing her signatures at points A and B. In support of her testimony, PW-1 relied upon the following documents:
Ex. PW1/1 (OSR): Copy of Aadhaar Card of PW-1.
Ex. PW1/2 (OSR): Copy of General Power of Attorney dated
22.04.2003 in favour of PW-1.
Ex. PW1/3 (colly): Photographs depicting the gali and
constructions in question.
Evidence Affidavit of PW-1
CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 12 of 37
31 The plaintiff, appeared in the witness box as PW-1 and tendered her affidavit in evidence. In her deposition, she affirmed that she had been residing at House No. 140, Block G, Tigri, Village Devli, Sangam Vihar, New Delhi, along with her family for the past 16 years. She deposed that she had purchased Plot No. G-70, measuring 140 sq. yards, falling under Khasra No. 37, situated in G Block, Sangam Vihar, from one Shri Bhagmal on 22.04.2003, and thereafter began residing in the said property.
32 PW-1 stated that ever since her purchase, she had been in peaceful possession of the said property and regularly using the gali (passage) situated between her house and the then temporary Police Chowki of Sangam Vihar, which, she claimed, had now been converted into the newly established Police Station Tigri. She asserted that this gali, which she described as approximately 50 years old, had always been open and accessible to her and her family, and was being used for access and other daily needs, thereby forming the basis of her claimed easementary rights.
33 The plaintiff alleged that the defendants, in the course of constructing the permanent structure of Police Station Tigri, had encroached upon the gali, thereby obstructing its use and access. She further deposed that the foundation of the new police station was being laid over the passage, despite objections raised by her. According to her, the defendants neither had title nor any lawful authority to construct over the disputed portion.
CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 13 of 37 34 PW-1 claimed that the alleged obstruction by the defendants had interfered with her lawful and continuous use of the gali, causing disturbance to her and her family members. She contended that there existed no alternative remedy available to her and that the filing of the present suit for permanent and mandatory injunction was the only efficacious recourse to safeguard her rights.
35 She further stated that no legal impediment existed in the grant of relief and that the balance of convenience lay in her favour. If the defendants were not restrained, she submitted, she would suffer irreparable harm, which could not be compensated monetarily. PW-1 concluded her deposition by affirming the truthfulness of her statements made on affidavit.
Cross-examination of PW-1 36 PW-1 deposed that she had been residing in Agra prior to shifting to her current residence. (Volunteered: The house in question had been gifted to her by her mother.) PW-1 denied the suggestion that the property in question lay in Khasra No. 25/2 instead of Khasra No. 37, as mentioned in the records. PW-1 stated that she could not confirm whether her house fell within an unauthorised colony as per the records of the Municipal Corporation of Delhi.
37 PW-1 denied the suggestion that the construction of her house stood on Gram Sabha land. PW-1 also denied the suggestion that there was no window in her house facing the gali/suit property. (Volunteered:
CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 14 of 37 The defendants had raised a wall on that side and had closed the window.) PW-1 further denied the suggestion that no such window ever existed in her house. PW-1 admitted that she had been served with a notice prior to the demarcation carried out by the SDM.
38 PW-1 denied the suggestion that the concerned SDM had informed her that the gali/suit property fell within Khasra No. 25/2 and not Khasra No. 37. PW-1 stated that she did not know the exact length and breadth of the gali/suit property. (Again said: The width of the gali before the alleged encroachment by the defendants had been approximately 10 feet.) PW-1 denied the suggestion that the gali/suit property had been closed from one end.
39 PW-1 also denied the suggestion that the land described as gali/suit property was not a passageway but a vacant piece of land belonging to the Police Chowki. PW-1 denied the suggestion that, at the time of filing of the present suit, the suit property had been under the possession of the defendants. PW-1 further denied that the suit property had not been used by the local residents as a passage. PW-1 denied the suggestion that her house had been constructed on government land or that the construction thereon was illegal. PW-1 denied the suggestion that she had deposed falsely in the present proceedings.
Defendant Evidence CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 15 of 37 DW-1/ Shri Rajendra Prasad Yadav, Patwari posted in the office of the SDM, Saket, New Delhi 40 DW-1, Shri Rajendra Prasad Yadav, Patwari posted in the office of the SDM, Saket, New Delhi, appeared as a summoned witness in the present matter. He stated that summons in the present case had been issued to the Tehsildar, Saket, for production of specific documents pertaining to demarcation and land allocation in relation to the proposed Police Station Tigri.
41 He deposed that the following documents were sought in the summons:
A request letter dated 14.01.2020 addressed to the Deputy Commissioner of Police, South District, seeking allotment of land for establishing the Police Station at Tigri; A request letter dated 24.02.2020 addressed to the SDM, Saket, for conducting demarcation in respect of Khasra No. 37, Sangam Vihar, and Khasra No. 416, Village Devli, New Delhi; A request letter dated 26.02.2020 addressed to the SDM, Saket, for providing land for the said police station; and The demarcation report dated 26.02.2020, along with Khasra Girdawari entries and rough site plans prepared and submitted by the Tehsildar, from the records of the Revenue Department, Office of the SDM, Saket.
42 DW-1 submitted that he had conducted a thorough search in the record room of the Revenue Office and confirmed that none of the CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 16 of 37 aforementioned documents were traceable or available in the official records as on the date of his appearance.
Final Arguments Submissions on behalf of plaintiff 43 Learned counsel for the plaintiff submitted that the plaintiff has been in uninterrupted possession of Plot No. G-70 since 2003 and has continuously used the adjacent gali as a passage for over 16 years. The said gali, claimed to be in existence for more than 50 years, has become an easement of necessity and convenience for the plaintiff and nearby residents. It was contended that the defendants, in constructing the new Police Station Tigri, have unlawfully encroached upon the gali, thereby obstructing access to the plaintiff's property and infringing her easementary rights. The obstruction has caused substantial hardship, and despite objections, the defendants have continued construction without authority.
44 The plaintiff placed reliance on documentary evidence (GPA, photographs) and oral testimony to prove long-standing user. It was argued that the demarcation report relied upon by the defendants is inconclusive and that the plaintiff's house and the gali fall under Khasra No. 37, not Khasra No. 25/2. It was further submitted that the reliefs sought, permanent and mandatory injunctions, are preventive and restorative in nature, and the balance of convenience lies in favour of the plaintiff, who would suffer irreparable harm otherwise.
CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 17 of 37 The plaintiff, having no alternative remedy, is entitled to the reliefs prayed.
Submissions on behalf of defendant 45 The defendants, in their written synopsis, have contested the plaintiff's claim primarily on the ground that the plaintiff is seeking injunctive relief in respect of government land without any legal entitlement or ownership. It is submitted that the plaintiff purchased property bearing No. G-70, measuring 140 sq. yards, claimed to be part of Khasra No. 37, from one Bhagmal on 22.04.2003 and has been residing there. The plaintiff herself admitted the existence of a temporary police chowki adjacent to her property, which has now been developed into Police Station Tigri.
46 The defendants contend that the construction of the police station is being carried out on government land, and the plaintiff has falsely claimed a gali (lane) adjacent to her property as a public passage being obstructed. It is argued that the plaintiff has not filed any site plan or impleaded necessary parties such as the Forest Department or MCD, rendering the suit defective for non-joinder of necessary parties.
47 Reliance is placed on the demarcation report filed by the SDM, which establishes that the disputed land falls under Khasra No. 25/2 and not Khasra No. 37, and is government land under the Forest Department. It is further pointed out that the plaintiff has not prayed for possession or declaration, nor does she have possession of the CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 18 of 37 alleged gali. It is also contended that the plaintiff's own property is not sanctioned by any municipal authority and is constructed without approval, making her an unauthorised occupant.
48 Therefore, the defendants assert that the plaintiff has no legal right, title, or interest in the disputed land, and the suit is devoid of merit, not maintainable, and deserves dismissal.
Analysis and Findings Issue No. (i) Whether plaintiff is entitled to decree of permanent injunction for restraining the defendants from raising construction at the suit property, as prayed for in prayer clause no. (a)? OPP 49 The onus to prove this issue lies on the plaintiff. Prayer clause no. (a) of the plaint reads as follows:
a Pass a decree of permanent injunction thereby restraining the defendants, their associates, agents, assigns, employees, representatives, successors from raising construction at the suit property i.e. land of Gali between the property bearing Plot No. G-70, measuring 140 sq. yards, out of Khasra No. 37, situated G Block, Sangam Vihar, Village Devli, Tehsil Hau Khas (Mehrauli), New Delhi and Temporary Shed of Police Station Tigri specially shown in the Photographs.
50 The onus to prove this issue lies upon the plaintiff. The plaintiff has sought a decree of permanent injunction to restrain the defendants from raising any construction over the gali situated between her CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 19 of 37 property, i.e., Plot No. G-70, G Block, Sangam Vihar, New Delhi, and the premises where the Police Station Tigri is now established.
51 In support of her claim, the plaintiff, examined as PW-1, deposed that she is residing at House No. 140, G Block, Tigri, Village Devli, Sangam Vihar, which she claims to have purchased through a General Power of Attorney dated 22.04.2003. She stated that ever since the purchase, she and her family members have been in peaceful possession and regular use of a gali (passage) situated between her property and the premises of the erstwhile Police Chowki Sangam Vihar, now being developed into Police Station Tigri. She claimed to have acquired easementary rights over the said gali through long and uninterrupted use, and further deposed that the defendants have now raised a boundary wall and initiated construction activities on the disputed land, thereby obstructing her access and causing permanent injury.
52 PW-1 relied on Ex. PW1/1 (Aadhaar card), Ex. PW1/2 (GPA dated 22.04.2003), and Ex. PW1/3 (colly) (photographs of the gali and construction) in support of her case. In cross-examination, she admitted having received notice from the SDM prior to demarcation proceedings and also stated that she could not specify the exact length or breadth of the suit property, though she claimed the width of the gali to have been approximately 10 feet prior to construction by the defendants.
53 On the other hand, the defendants examined DW-1, Rajendra Prasad Yadav, Patwari from the SDM Office, Saket. He deposed that the CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 20 of 37 documents sought in the summons such as the request for demarcation, Khasra Girdawari, and the demarcation report were not traceable in the record room. However, the defendants placed on record through their pleadings and cross-examination that the land in question forms part of Khasra No. 25/2, and not Khasra No. 37 as claimed by the plaintiff. They contended that the land has been under the control and possession of the Delhi Police for over 30 years and forms part of the existing police establishment, and that the plaintiff's property lies at a distance from the disputed land with no direct access to it.
54 The plaintiff has not produced any sanctioned site plan, certified khasra records, or revenue entries to demonstrate that the alleged gali lies adjacent to her property or forms part of Khasra No. 37. The documents relied upon namely, the GPA and photographs are insufficient to prove either title or possession over the disputed portion. Furthermore, the plaintiff has failed to establish that the defendants' construction is unauthorized or illegal. No municipal or revenue authority has been examined or summoned to substantiate her claim that the gali was a recognized public passage or that her access thereto has been unlawfully obstructed.
55 The plaintiff has failed to establish the essential ingredients necessary for claiming an easement by prescription under Section 15 of the Indian Easements Act, 1882. As per the said provision, a right of easement may be acquired by the user of a way or watercourse, or by the enjoyment of any other easement continuously, openly, peaceably, and as of right, without interruption, for a period of twenty CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 21 of 37 years. These four elements, continuity, openness, peaceable and as- of-right enjoyment, must be affirmatively proved through cogent and credible evidence.
56 In the present case, the plaintiff has merely made a bald assertion in her testimony that the gali in question has been used by her and her family since 2003, and that the said passage is over 50 years old. However, there is no documentary evidence or credible oral evidence brought on record to substantiate these claims. The plaintiff has not produced any site plan, khasra entries, municipal records, or sanctioned building layout to reflect the existence of the passage as a public right of way or its continuous user.
57 Crucially, no independent witnesses from the locality have been examined to corroborate the plaintiff's assertion that the gali was being regularly and uninterruptedly used by her or other members of the public as a passage. The absence of such corroborative testimony from disinterested neighbours or public residents severely undermines the credibility of the plaintiff's claim.
58 It is a settled principle of law that for grant of permanent injunction, the plaintiff must demonstrate (i) a legal right, (ii) actual or apprehended infringement of such right, and (iii) that the balance of convenience lies in her favour, and (iv) that irreparable loss would be caused if the injunction is denied. In the present case, the plaintiff has failed to establish the foundational legal right, i.e., ownership, possession, or recognized easement over the disputed gali.
CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 22 of 37 59 Moreover, the photographic evidence merely shows ongoing construction activity but does not conclusively prove the plaintiff's claim of obstruction or encroachment upon any specific access route. Given these circumstances, and the absence of corroborative documentary evidence supporting the plaintiff's exclusive use or right over the suit property, the Court is of the view that the plaintiff has failed to discharge the burden of proof that lay upon her.
60 Accordingly, Issue No. (i) is decided against the plaintiff and in favour of the defendants.
Issue No. (ii) Whether the plaintiff is entitled to decree of mandatory injunction for directing the defendants to not interfere in carrying out one construction on the property, as prayed for in prayer clause no. (b)? OPP 61 The burden to prove this issue lies on the plaintiff. Prayer clause no.
(b) of the plaint reads as follows:
b Pass a decree of Mandatory injunction in favour of the plaintiff and against the defendants thereby directing the defendants not to interfere to carry out the construction on the land of Gali between the property bearing Plot No. G-70, measuring 140 sq. yards, out of Khasra No.' 37, situated G Block, Sangam Vihar, Village Devli, Tehsil Hau Khas (Mehrauli), New Delhi and Temporary Shed of Police Station Tigri specifically shown the Photographs.
CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 23 of 37
62 The burden of proving this issue lies on the plaintiff. Through prayer clause (b), the plaintiff seeks a decree of mandatory injunction against the defendants, with a specific request that they be restrained from interfering in any construction sought to be carried out by the plaintiff on a piece of land described as a gali (lane) lying between her property, Plot No. G-70, measuring 140 sq. yards, out of Khasra No. 37, G Block, Sangam Vihar, and the site where the Police Station Tigri now stands, formerly occupied by a temporary police post.
63 In her affidavit and oral deposition, the plaintiff, examined as PW-1, deposed that she is residing at House No. 140, Block G, Tigri, Village Devli, Sangam Vihar, and claimed to have purchased Plot No. G-70, measuring 140 sq. yards, falling in Khasra No. 37, through a General Power of Attorney dated 22.04.2003. She alleged that a gali (passage) between her house and the erstwhile Police Chowki Sangam Vihar, now being converted into Police Station Tigri, has historically been used by her family and other residents as a means of access, and that the ongoing construction by the defendants has not only obstructed that passage but has also affected her own use and enjoyment of the suit property.
64 However, on careful examination of the pleadings, evidence, and cross-examination, this Court finds that the plaintiff has neither clearly pleaded nor specifically proved the nature of the construction she intends to carry out on her own property. The prayer clause (b) as framed in the plaint lacks clarity. It seeks a mandatory injunction to restrain the defendants "from interfering to carry out the construction CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 24 of 37 on the land of gali," which grammatically and substantively appears ambiguous unclear as to whether the plaintiff is claiming a right to construct on the gali or alleging that the defendants are preventing her from making construction on her own land. Such ambiguity in pleadings is fatal to the grant of equitable relief like mandatory injunction.
65 It is further observed that no sanctioned building plan, construction approval, or even a specific statement of proposed construction has been brought on record. The plaintiff has not demonstrated any attempt by the defendants to interfere with construction on her own property, nor has she shown any construction activity undertaken or proposed by her which is being hindered by the defendants.
66 Additionally, it is the consistent case of the defendants that the disputed land, referred to by the plaintiff as a gali, is in fact part of government land falling under Khasra No. 25/2, as per the demarcation report from the office of SDM, Saket, and that the plaintiff herself is in unauthorized occupation. This position has not been effectively rebutted by the plaintiff, nor has she brought forth any documentary proof of municipal sanction or ownership entitling her to raise construction adjacent to or upon the disputed land.
67 In the absence of a clear right asserted, no demonstrated interference by the defendants, and no specific construction-related activity being obstructed, the plaintiff has failed to make out a case for grant of mandatory injunction, which is a discretionary and stringent remedy requiring higher standards of proof.
CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 25 of 37 68 Thus, the Court finds no justification to direct the defendants to refrain from interfering with any alleged construction when no such right or construction is substantiated on record. Accordingly, Issue No. (ii) is decided against the plaintiff and in favour of the defendants.
Issue no. (iii) Whether suit for injunction simplicitor is not maintainable? OPD 69 The Onus to prove this issue was upon the defendants. In the present matter, the defendants have raised a preliminary objection regarding the very maintainability of the suit, asserting that the plaintiff's claim for permanent and mandatory injunction, without seeking any declaratory relief or relief of possession, is legally untenable. The issue requires a careful examination of the nature of the relief claimed, the pleadings on record, and the well-settled legal position governing suits for injunction simplicitor.
70 The plaintiff, in the instant case, seeks a decree of permanent injunction to restrain the defendants from raising any construction over a strip of land described as a gali (lane) adjacent to her residential property. Significantly, however, she does not seek a declaration of any legal right, whether ownership, possessory title, or easementary entitlement, over the land in question. Her case is premised on long-standing user of the gali for ingress and egress to her house and a claim of easement by prescription. CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 26 of 37 71 The legal position on this point is well-settled. A suit for injunction simplicitor is maintainable only when the plaintiff is in lawful and peaceful possession of the property and is merely seeking protection against unlawful interference. However, when the title, nature of possession, or the legal right itself is seriously disputed, or where the plaintiff does not possess the property but seeks to prevent others from asserting control over it, a mere claim for injunction is not sufficient. The plaintiff, in such circumstances, is required to institute a properly framed suit for declaration of her rights, accompanied by consequential reliefs.
72 This principle has been clearly enunciated in the decision of the Hon'ble Supreme Court in Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594, wherein it was held that where the title of the plaintiff is under a cloud or disputed, and possession is not admitted or proved, the plaintiff must file a suit for declaration and possession, rather than for injunction alone.
73 Applying this principle to the facts of the present case, it is evident that the plaintiff herself does not claim to be in possession of the gali. Rather, she asserts an easementary right of use, based on long- standing access. In these circumstances, where the plaintiff is neither in exclusive possession nor claiming ownership of the disputed land, and the very basis of her alleged right is contested, the suit cannot be sustained as one for injunction alone. She was required to seek a declaratory relief under Section 34 of the Specific Relief Act to CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 27 of 37 establish her rights, if any, before seeking an injunction. The omission to do so renders the suit legally deficient.
74 Accordingly, in view of the legal position and the factual matrix of the case, it is held that the present suit for injunction simplicitor, without a prayer for declaration or possession, is not maintainable. The issue is, therefore, decided in favour of the defendants and against the plaintiff.
Issue no. (iv) Whether plaintiff has no locus to file the present suit? OPD 75 The Onus to prove this issue was upon the defendants. This issue concerns the foundational question of whether the plaintiff has the legal standing or locus standi to institute the present suit for permanent and mandatory injunction in respect of the land described as a gali (lane) situated between her residential property and the newly constructed Police Station Tigri.
76 The plaintiff claims to be the owner and occupant of Plot No. G-70, measuring 140 square yards, forming part of Khasra No. 37 in G Block, Sangam Vihar, Village Devli, New Delhi. She asserts that there exists a public lane or gali adjacent to her property, which she and her family members have used uninterruptedly for more than sixteen years for ingress and egress, thereby claiming an easementary right of usage.
CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 28 of 37 77 The defendants, however, contend that the plaintiff lacks the requisite locus to maintain the present suit, primarily on the grounds that she neither owns the disputed land nor holds any valid right, title, or interest over it. They argue that the gali in question does not fall within Khasra No. 37 but lies in Khasra No. 25/2 , which, as per demarcation reports and official records, is government land vested with the Forest Department and currently being used by the Delhi Police for construction of the Police Station Tigri. The defendants also argue that the plaintiff has not impleaded the Forest Department or the Land Owning Agency as a party to the suit, and that she is in fact seeking control over public land under the guise of injunctive reliefs.
78 Notably, there is no document proving that the plaintiff has any possessory or customary right of access formally recognized by the competent authority. Even the photographs and oral testimony produced by her do not conclusively prove uninterrupted public access or user-based easement.
79 It is also a settled proposition of law that for a party to be entitled to maintain a suit for injunction, they must either be in possession of the disputed property or assert a legal or equitable right over it. In the present case, the plaintiff neither claims ownership nor exclusive possession over the gali and, in fact, refers to it as a common passage or public land. She has not filed a declaratory suit asserting an easementary right or sought a declaration of her entitlement to use the gali. In the absence of a specific legal right, her locus to seek CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 29 of 37 injunctive relief over public land, without impleading the State or the land-owning authority, becomes questionable.
80 Therefore, in view of the lack of ownership, absence of any recognised easementary right, and the omission of necessary parties, it is held that the plaintiff has failed to establish her locus standi to maintain the present suit in its current form. This issue is accordingly decided in favour of the defendants and against the plaintiff.
Issue No. (v) Whether present suit has not been properly valued for purposes of court fee and jurisdiction? OPD 81 The Onus to prove this issue was upon the defendants. The present issue calls for examination of whether the plaintiff has correctly valued the suit in accordance with law, both for the purpose of court fee and jurisdiction, particularly in light of the nature of reliefs sought.
82 The defendants have objected to the maintainability of the present suit on the ground that it has not been properly valued for the purposes of court fee and jurisdiction. It has been contended that the plaintiff, despite seeking reliefs that in substance pertain to title, possession, and enforcement of alleged easementary rights over a disputed portion of land claimed to be part of a public or government property, has styled her claim as one for bare injunction and arbitrarily valued the suit at Rs. 130/-for each relief, merely to attract CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 30 of 37 the pecuniary jurisdiction of this Court and evade appropriate court fee.
83 In response, the plaintiff has pleaded that she is in possession of her residential property and is only seeking to restrain the defendants from encroaching upon the adjacent gali and interfering with her access to the same. She has assessed the reliefs of permanent and mandatory injunction at Rs. 130/- each, and affixed court fee accordingly.
84 It is a settled principle of law that in suits for injunction simplicitor, the plaintiff is permitted to assign a notional value to the relief, provided it is done in good faith and the nature of the relief truly reflects the stated valuation. However, where the real nature of the relief is not merely injunctive but involves determination of title, possession, or declaration of rights over immovable property, then the suit is required to be valued as per the market value of the property or in accordance with specific provisions under the Court Fees Act, 1870 and the Suits Valuation Act, 1887.
85 In the present case, a careful reading of the plaint and evidence reveals that the plaintiff is seeking to assert long-standing user rights over a disputed strip of land, referred to as a gali, and claims to have acquired easementary rights by way of usage. However, she has not sought declaration of such a right, nor produced any document establishing lawful ownership or possession over the suit property. Her claim is contested by the defendants, who assert that the land in CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 31 of 37 question is government property forming part of Khasra No. 25/2, and belongs to the Delhi Police and Forest Department.
86 Despite these contested facts, the plaintiff has valued both the reliefs permanent and mandatory injunction at a nominal Rs. 130/- each, without explaining the basis of such valuation or substantiating possession over the suit property. Given the nature of the dispute and the assertion of quasi-proprietary and access rights over immovable property whose character and ownership is disputed, this Court finds that the suit, in substance, involves issues that go beyond mere injunction and attract provisions relating to declaration and easement, for which appropriate valuation and court fee are required.
87 Thus, this Court is of the view that the plaintiff has undervalued the suit, and the court fee affixed is not commensurate with the nature of the relief sought. The valuation does not reflect a bona fide assessment, and therefore the objection of the defendants is found to be legally sustainable.
88 Accordingly, this issue is decided in favour of the defendants and against the plaintiff.
Issue No. (v) CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 32 of 37 Whether this court has no pecuniary jurisdiction to entertain the present suit? OPD 89 The Onus to prove this issue was upon the defendnats. This issue requires examination of whether the suit, as instituted by the plaintiff, falls within the pecuniary jurisdiction of this Court in accordance with the applicable statutory thresholds and court fee valuation.
90 The plaintiff has valued the suit for the purposes of jurisdiction at Rs.
260/, i.e., Rs. 130/- for each relief sought, permanent injunction and mandatory injunction, and has accordingly affixed a fixed court fee. The claim is that the nature of the suit is simpliciter for injunction, and hence falls within the monetary limits of this Court's pecuniary jurisdiction.
91 It is a settled principle of law that the determination of pecuniary jurisdiction depends on the valuation of the suit as disclosed in the plaint, but such valuation must be bona fide and not illusory or arbitrary. The Court is entitled to examine whether the suit has been deliberately undervalued to bring it within the jurisdiction of a particular court. If the relief claimed, in substance, relates to title, possession, or user rights over immovable property, the plaintiff cannot bypass jurisdictional limits by couching the prayer in the form of a bare injunction.
92 In the present case, the plaintiff has sought not only to restrain the defendants from raising construction on the disputed land, described as a gali, but also to assert a right to carry out construction herself on CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 33 of 37 the same. This relief goes beyond a mere negative injunction and seeks affirmative rights over the land. The land in question, as per the defence, forms part of Khasra No. 25/2 and is recorded as government land under the jurisdiction of the Forest Department and has been in the use of Delhi Police for decades. The plaintiff has neither asserted ownership nor filed a declaratory suit. Nevertheless, the nature of the prayers suggests that she is asserting possessory and usage rights of a substantive nature.
93 Given the above, the valuation adopted by the plaintiff for jurisdictional purposes appears not only arbitrary but intended to bring the suit within the limited jurisdiction of this Court. If the plaintiff indeed seeks to establish a right of easement or possession over public land, the market value of such land ought to be disclosed and the valuation must reflect that. The undervaluation of the suit deprives the Court of the power to entertain it unless jurisdiction is otherwise clearly established.
94 Accordingly, the defendants have successfully raised a substantial objection to the maintainability of the suit on the ground of lack of pecuniary jurisdiction. The plaintiff has failed to rebut the same or demonstrate that the jurisdictional valuation is legally sustainable.
95 This issue is decided in favour of the defendants and against the plaintiff. This Court does not have the pecuniary jurisdiction to entertain the present suit as presently valued.
Issue No. (vi) CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 34 of 37 Whether present suit is bad for mis-joinder and non-joinder of necessary parties? OPD 96 The Onus to prove this issue was upon the defendants. This issue raises the question of whether the suit is liable to be dismissed or otherwise affected on account of the improper joining of parties or omission of necessary parties whose presence is essential for the adjudication of the matter.
97 The plaintiff has instituted the present suit against the Delhi Police authorities, seeking permanent and mandatory injunctions in respect of a portion of land described as a gali situated between her property and the site of the newly established Police Station Tigri. She claims easementary and possessory rights over the said gali and alleges obstruction by the defendants due to construction work.
98 The defendants, however, have specifically pleaded that the land in question is government land falling under Khasra No. 25/2, which, as per the official records and the demarcation report of the SDM and Tehsildar, belongs to the Forest Department and has been under the occupation of the Delhi Police for over three decades. It is further contended that the plaintiff has not impleaded the Forest Department or the relevant land-owning authority, i.e., the Government of NCT of Delhi or its departments dealing with public lands, as parties to the present suit. The suit is therefore bad for non-joinder of these necessary parties.
CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 35 of 37 99 A necessary party is one whose presence before the Court is essential for a complete and effective adjudication of the dispute. Without such a party, the Court may either not be able to grant the relief sought or any relief granted may be rendered ineffective or unenforceable. If the title, control, or administration of the land in question lies with a third party, and such party is not impleaded, any order passed would be inchoate and possibly infructuous.
100 Furthermore, the plaintiff is seeking to restrain construction over land that she does not own, which, according to the defence, is government land. Without bringing the legal custodian of such land on record, the relief sought cannot be adjudicated comprehensively. In such a scenario, the non-joinder is not a mere procedural defect but strikes at the root of effective adjudication.
101 No explanation has been offered by the plaintiff as to the land- owning agency has not been impleaded. The plaintiff has also not taken any steps to implead them even after service of the written statement raising the said objection.
102 Insofar as mis-joinder is concerned, no superfluous or irrelevant parties have been specifically pointed out by the defendants. Hence, no finding of mis-joinder is recorded. However, the non-joinder of the land-owning authority remains a material defect.
103 This issue is answered in favour of the defendants and against the plaintiff. The present suit suffers from non-joinder of necessary CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 36 of 37 parties particularly the land-owning agency, whose presence is essential for effective adjudication of the matter.
Relief:
104 In light of the analysis and findings on all the issues, no relief can be granted to the plaintiff. In view thereof, the suit filed by the plaintiff is hereby dismissed. No order as to costs. Decree sheet be prepared accordingly.
File be consigned to the Record Room after due compliance.
Announced in the open court on 26.04.2025.
Digitally signed ANURADHA by ANURADHA JINDAL JINDAL Date: 2025.04.26 16:20:38 (ANURADHA JINDAL)+0530 ASCJ-cum-JSCC-CUM-GJ (South) Saket Courts, New Delhi CS SCJ 1167/19 MAMTA GUPTA VS. THE COMMISSIONER & ANR 37 of 37