Delhi District Court
AscjJsccGj(Central) vs Sh.Din Dayal S/O Sh.Krishan Lal on 24 March, 2011
IN THE COURT OF SH GAUTAM MANAN,
ASCJJSCCGJ(CENTRAL), NEW DELHI.
RCA .218/06
Sh.Gopal Verma
s/o Sh.Babu Lal
r/o 271/12, Gali no.2,
Than Singh Nagar,
Anand Parbat, New Delhi ................Appellant
Versus
1. Sh.Din Dayal s/o Sh.Krishan Lal
2. Sh.Kishan Lal s/o Sh.Budh Ram
3. Sh. Om Parkash @ Parkash s/o Sh.Kishan Lal
4. Sh.Yogesh s/o Sh Kishan Lal
5. Sh. Ritu s/o Sh.Kishan Lal
6. Sh. Teji s/o Sh.Krishan Lal
all r/o 207/1, Gali no.9, Than Singh Nagar, Anand Parbat, New
Delhi & also H.NO. 279 A, Gali no.12, Than singh Nagar, Anand
Parbat, New Delhi
7. Sh.Sita Ram Aggarwal
s/o Sh.Madan Lal
r/o H NO.218/5, Gali NO.10, Than Singh Nagar
Anand Parbat, New Delhi
8.Smt.Sushila Devi
w/o Sh.Shiv Pershad Gupta,
r/o H NO.4947, Gali no.40, Rehgarpura
Karol Bagh, New Delhi
................ Respondents
1 MCA 218/06
Date of Institution of Appeal : 01.12.06
Date of Reserving Judgement : 08.03.11
Date of Judgement : 24.03.11
ORDER
1. By this order I will dispose of an appeal against the judgment/decree passed by ld. Trial Court on 27.10.06 wherein Suit for Mandatory Injunction of the appellant was dismissed.
2. The Appellant filed a Suit for Mandatory Injunction seeking the relief against the respondents to restore the possession of the appellant of the portion shown as red in the site plan of the property bearing no. 207/1, Gali no.9, Than Singh Nagar, Anand Parwat, New Delhi.( hereinafter referred as suit property) The appellant also sought a direction to get his household articles restored from the respondents.
3. The appellant averred in the suit that he is owner of the suit property which comprises of a room, a kitchen, laterine, bathroom and a staircase with terrace. The appellant stated that the respondents were claiming themselves to be a tenant 2 MCA 218/06 of the portion of the suit property which is marked in green color in the site plan and they forcibly trespassed into the portion of the plaintiff shown as red in site plan on or about 11.5.95. The appellant made a complaint to the local police but no action was taken against the respondents and therefore the appellant filed a complaint case u/s 448/380/506/34 IPC against the respondents complaining that he has been illegally dispossessed by the respondents and respondents have illegally removed his household goods illegally on 11.5.1995.
4. The respondents contested the suit by filing Written Statement and averred that the suit property was let out to the respondent no.2 as the plaintiff had already vacated the premises in the month of November, 1992 and had shifted elsewhere. It has been stated that the said portion was let out to the appellant no. 2 and the rent was increased from Rs.200/ to Rs.300/pm which the respondent no.2 was paying regularly to the owner Sh.Sita Ram. The respondents denied to have taken forcible possession of the suit property from the appellant. 3 MCA 218/06
5. Ld. Trial Court on 12.10.06 on the pleadings of the parties framed following issues as under:
(i) Whether the plaintiff has not approached the court with clean hands and if so, its effect? OPD.
(ii)Whether the plaintiff is entitled for relief of mandatory injunction as prayed for? OPP.
(iii)Relief.
6. ld.Trial Court while deciding the suit of the appellant has held that the appellant pleadings and his testimony is inconsistent with each other and as such the appellant was not entitled for the relief of mandatory injunction. ld.Trial Court has also hold that the appellant although is claiming the ownership of the suit property but has failed to prove his title over the same and therefore dismissed the suit of the appellant by holding that there are material contradictions appearing in the pleadings with he deposition of the appellant.
7. The appellant has challenged the impugned judgement on the ground that the Ld.Trial Court has not appreciated the evidence which was led on behalf of the appellant which was in respect of the possession of the appellant of the suit property. The appellant has stated that the only limited question which was 4 MCA 218/06 required to be considered by ld.Trial Court was whether the possession of the portion of the appellant was ever surrendered or could have been taken over by any of the respondents when it was never surrendered and no order of eviction or possession was ever passed against the appellant rather ld. Trial Court has gone into the question of ownership which was not to be considered in the present case.
8. The appellant has further assailed the judgment of Ld. Trial Court on the ground that even after the appellant was held not to be the owner of the suit property by way of adverse possession or having purchased the same from Nihalu Jat even then as per the evidence of the parties, the appellant was in lawful possession of the disputed portion and he could not have been deprived of the same except by due process of law as such the suit of the appellant was entitled to be decreed and the possession of the appellant ought to have been restored.
9. The appellant has prayed that judgment and decree of ld. Trial Court dated 27.10.06 be set aside and the appeal be accepted. 5 MCA 218/06
10.I have heard the Ld Counsels for the parties and have also perused the record. I have also gone through case laws submitted by appellant in the present matter.
11.The appellant in the suit pleaded a specific case that he is owner of the suit property but during his cross examination the appellant admitted that the suit filed by the owners of the property was decreed against him for the recovery of rent as he had not paid the rent of the property to it's owners. The appellant during his cross examination however deposed that he purchased the property from one Sh.Nihalu Jat but the appellant did not produce any witness or document in order to prove the sale transaction of the suit property in his favour. In the Judgment ld.Trial Court has rightly held that there are material contradictions appearing in pleadings as compared with the deposition of appellant. No fault can be found in the conclusion reached by Ld. Trial Court that the plaintiff has failed to prove his ownership of the suit property. 6 MCA 218/06
12.The contention raised by the appellant is that even if the Ld. Trial Court has reached to a conclusion that the appellant was not the owner of the suit property even then on the evidence of the parties that appellant was enjoying the possession of the suit property the possession of the appellant ought to have been restored. To appreciate this argument let us examine what the appellant has proved before the ld. Trial Court in order to establish his possession over the suit property.
13.The appellant has tendered his evidence by way of an affidavit Ex.PW 2/A. The appellant proved the site plan Ex.PW 1/1, the certified copy of the order showing that case for recover of rent filed by Smt.Satya Naryani was dismissed against him as Ex.PW 1/2, a copy of police report complaining his dispossession as Ex.PW 1/3 & 1/4, the statement of appellant recorded on 23.3.94 in FIR no.59/1991 as Ex.PW 1/5, certified copy of order wherein the respondents were summoned as accused persons as Ex.PW 1/6 and copy of appeal against the search orders of Ld. MM as Ex.PW 1/7.
7 MCA 218/06
14.I am afraid that none of these documents prove the possession of the appellant over the suit property as on May,2005. In order to succeed in the present suit the appellant was not only under the obligation to prove his bonafide before the Trial Court but was also bound to establish his possession over the suit property but the appellant has failed to do so.
15.It may also be noted that in the suit the appellant has made allegation that the respondents have not only illegally dispossessed him in his absence but respondents have also illegally removed his household articles and other articles around 11.05.95 but the appellant has not proved on record any such list of articles for which he is alleging that the articles were removed by the respondents. Although, a prayer has been made in the Suit that the respondents be directed to return those house hold goods as stated above but no list showing the household goods have been filed or proved by the appellant. This also goes to prove that no articles of the appellant were lying in the suit property.
8 MCA 218/06
16.In these facts of the case, I find that appellant not only has failed to establish his title over the suit property but is guilty of not coming before the Court with clean hands. It is well settled law that the relief of injunction cannot be granted to a person who does not approach the Court with clean hands. The appellant has based his suit not only claiming the possession but also his ownership. As stated above the appellant has proved none of the two. Thus, the Ld Trial Court has rightly decided both the issues against the appellant.
17.In the light of aforesaid discussion, the present appeal has no merits and is hereby dismissed. However, there shall be no order as to cost.
Copy of this order as well as Trial court Record be sent to the concerned Trial Court / Successor Court.
Appeal file be consigned to Record Room.
Announced in the open court on 24th March, 2011.
Gautam Manan
ASCJJSCCGJ
24.03.11
9 MCA 218/06
RCA .218/06
Sh.Gopal Verma V. Din Dayal & Ors
24.3.11
Present: None.
Vide separate order of even date, appeal has been dismissed. there shall be no order as to cost. Copy of this order as well as Trial court Record be sent to the concerned Trial Court / Successor Court. Appeal file be consigned to Record Room.
(Gautam Manan) ASCJ/Delhi/24.3.11 10 MCA 218/06