Delhi District Court
Sh. Dilbagh Rai Katyal vs Sh. Surjit Singh on 12 April, 2012
IN THE COURT OF SH. LOKESH KUMAR SHARMA, JSCCCUM
ASCJCUMGUARDIAN JUDGE (WEST): DELHI
Suit No. 27A/09
Unique Case I.D. No. 02401C0020691995
Sh. Dilbagh Rai Katyal
S/o Sh Harbans Lal
R/o WZ34/7A, Mukherjee Park Extn.,
Tilak Nagar, New Delhi110028. ...........Plaintiff
Versus
1. Sh. Surjit Singh
S/o Sh. Madan Singh
R/o WZ22, Mukherjee Park,
Tilak Nagar, New Delhi110028.
2. Municipal Corporation of Delhi,
Through its Commissioner,
Town Hall, Chandni Chowk,
Delhi110006. .........Defendants
Date of filing of the application : 03.02.1995
Date of reserving order : 04.04.2012
Date of pronouncement of order : 12.04.2012
J U D G M E N T
1. The plaintiff had filed the present suit for permanent injunction praying therein that defendants be restrained from dispossessing the plaintiff forcibly and illegally from the plot bearing Khasra No. 12/7/1, near Shop No. WZ22A, Mukherjee Park, Tilak Nagar, Delhi measuring 600 sq. yds. in any manner without due process of Suit no. 27A/09 Page No. 20/1 law and further from interfering in the peaceful use and enjoyment of the said plot of the plaintiff in any manner. Briefly stated the facts necessitated for filing of the present suit are succinctly given as under:
2. The plaintiff's father was the actually a tenant in possession of a plot measuring 200 sq. yds. as shown in the site plan and afterwards, plaintiff had purchased the said land along with a plot measuring 400 sq. yards totaling to 600 sq. yards from one Sh. N.N. Verma son of Sh. Raja Ram Verma and thereafter, the plaintiff became absolute owner in possession of the said plot. It had further stated that the plaintiff was running a shop near the said plot and storing his building material in the name and style of M/s. Katyal Building Material since last 14 years. The defendant no. 1 had a grudge against the plaintiff and now and then he had also preferred applications to the police so that the plaintiff could be forced by the police to close down his business activities in the said plot. The police had also registered a case under FIR No. 56/95, under Sections 283/291 of IPC, PS Tilak Nagar on the application of the defendant no. 1, for storing building material in the public place, whereas it was not so and that is why defendant no.2/MCD was made a party to show whether the particular land was comprising of Patri or not or was in actual and physical possession of the plaintiff. Vide Nakal Khasra Girdawari dated 07.07.1993 issued by Tehsildar Mehrauli of Village Chaukhandi, where the suit land was situated, same had been shown in the name of the plaintiff vide column no. 14 and other related documents had also been filed therein. The defendant no. 1 by influencing the police Suit no. 27A/09 Page No. 20/2 had got registered the aforesaid FIR against the plaintiff, which was false, fabricated and had no connection with the suit property. The intention of the defendant no. 1 was that the plaintiff must have shifted his business activities/building material which he had been running in the name and style of M/s. Katyal Building Materials at the disputed site since the year 1982. The defendant no. 2 had never objected to his business activities and was a formal party. The defendant no. 1 with the help of police had come to the spot on 25.01.1995 and again on 28.01.1995 so that the plaintiff be compelled and forced to remove his building material from his own plot by showing the said site as a public place. The cause of action arose on 25.01.1995 and 28.01.1995 when the defendant no.1 came to the suit land and threatened the plaintiff to remove his building material from the said plot and the cause of action was continuing one as the defendant no. 1 was adamant to give threats to the plaintiff to vacate the land by falsely showing the said plot as public land. The parties to the suit were residing and working for gain at Delhi and the cause of action had arisen at Delhi and the suit property was also situated at Delhi. Hence, this court was stated to have territorial jurisdiction to try and entertain the present suit. In the light of aforesaid facts and circumstances, the plaintiff had no other remedy to file the present suit against the defendants with the aforesaid prayer.
3. The defendants were served with the summons of the suit and accordingly, defendants had duly appeared to contest the suit of the plaintiff on its merits and had also filed their respective written statements to the suit.
Suit no. 27A/09 Page No. 20/3
4. The defendant no. 1 besides denying the factual assertions as wrong and incorrect had also taken the preliminary objections that the present suit was filed malafidely by the plaintiff with ulterior motive to grab the Corporation's land and had impleaded the answering defendant wrongly without any cause of action against him and as such the suit was liable to be dismissed under Order 7 Rule 11 CPC. The plaintiff had knowingly and intentionally concealed the material information and had misrepresented the facts with the sole object to take an undue advantage of the process of law. The plaintiff had filed a wrong site plan of the suit property mischievously and had wrongly described the property in the plaint. The suit property in respect of which the plaintiff had filed the present suit was stated to be a vacant portion of land situated in the colony of Mukherji Park and was a portion of land in Khasra No. 12/4, Chaukhandi, New Delhi which was acquired by the Government vide Award No. 1955 and the record of the same was available in Notification Cell, Tis Hazari Court, Delhi. The suit property was lying vacant since 1955 and was in the use of the residents of Mukherji Park. Residents of Mukherji Park had also filed a suit for permanent injunction in respect of the suit property against the plaintiff and other parties who were attempting to grab the said portion of the land. The said suit was pending in the Court of Sh. V.K. Maheshwari, the then Ld. Civil Judge wherein the plaintiff was restrained from making any construction over the MCD land.
5. The defendant no. 2 besides denying the factual assertions as wrong and incorrect had also taken the preliminary objections that the suit was barred by the provisions of Section 477/478 of DMC Suit no. 27A/09 Page No. 20/4 Act for want of service of statutory notice. The suit was also barred by the provisions of Section 321/322 of the DMC Act as the plaintiff had encroached upon the municipal/public land and thus the same was liable to be removed. The plaintiff had no locusstandi to file the present suit as the suit site was a municipal/public land and the plaintiff had no legal right, title or interest therein. The plaintiff was not entitled to any protection of law bring an encroacher of municipal/public land. The suit was defective and deficient as no copy of the alleged site plan, ownership documents and other relevant documents had been supplied by the plaintiff herein to the answering defendant.
6. In the replications to the written statements of the defendants, the plaintiff had denied the averments made therein and had reiterated and reaffirmed the averments made in his plaint as correct.
7. On 25.01.1999, Ld. Predecessor of this Court had framed the following issues:
1. Whether the suit is without any cause of action? OPD
2. Whether the suit property is lying vacant since 1995 and is under the use of residents of Mukherji Park in respect of which another suit is pending in other court? OPP
3. Whether the plaintiff has concealed the material facts from the court? OPD Suit no. 27A/09 Page No. 20/5
4. Whether the plaintiff is owner in possession of the plot in questions? OPP
5. Whether the plaintiff is entitled to the decree for permanent injunction as asked for in the plaint? OPP
6. Relief.
8. After hearing Ld. Counsels for the parties as well as perusing the evidence adduced by them as well as on their behalf on record, my issue wise findings are as under:
ISSUE NO. 1
"Whether the suit is without any cause of action? OPD"
9. The onus to prove this issue was upon the defendant. However, the defendant no. 1 had not led any evidence in discharge of this issue. So far as the defendant/MCD was concerned, it had already been stated by the plaintiff in para no. 3 of his plaint that no relief had been sought against the defendant no. 2 and the defendant no. 2 was impleaded only as proforma party to the suit. It is the settled proposition of law that in order to ascertain a cause of action for filing of the suit, only the averments made in the plaint have to be seen and from the perusal of the plaint, it becomes amply clear that the plaintiff had leveled specific allegations against the defendant no. 1 to usurp his property. Hence, in the absence of any evidence being led on behalf of the defendant to controvert these allegations, Suit no. 27A/09 Page No. 20/6 there remains no hesitation in my kind in holding that the suit has disclosed a valid cause of action for its filing. Issue is accordingly, answered in negative and is decided against the defendants and in favour of the plaintiff.
ISSUE NO. 2
"Whether the suit property is lying vacant since 1995 and is under the use of residents of Mukherji Park in respect of which another suit is pending in other court? OPP"
10.Although it has been shown as that onus to prove this issue was upon the plaintiff. However, from the language of the issue itself it becomes amply clear that onus to prove this issue was again upon the defendant no. 1 who had taken this plea in his preliminary objection no. 4 in the written statement. Further it appears that year has been wrongly mentioned as 1995 instead of 1955 However, no evidence had been adduced on his behalf to discharge the onus and hence, the issue is accordingly answered against the defendants and in favour of the plaintiff.
ISSUE NO. 3
"Whether the plaintiff has concealed the material facts from the court? OPD"
11.Onus to prove this issue was again upon the defendant no.1 but no evidence had been adduced on behalf of the defendant no. 1 nor it had been cited as to what were those material facts which were Suit no. 27A/09 Page No. 20/7 concealed and suppressed by the plaintiff. Hence, issue is accordingly, decided against the defendants and in favour of the plaintiff.
ISSUE NO. 4 & 5 Issue no. 4 :"Whether the plaintiff is owner in possession of the plot in questions? OPP"
Issue no. 5: " Whether the plaintiff is entitled to the decree for permanent injunction as asked for in the plaint? OPP"
12.These issues have been taken up together for the purpose of their adjudication as they are interconnected by nature and onus to prove these issues was upon the plaintiff. However, I fail to understand as to why in a suit for permanent injunction simplicitor, an issue with respect to ownership of the plaintiff and his possession had been framed as is reflected from the language of issue no.4. Be that as it may, in order to discharge the onus of both the aforesaid issues, plaintiff had appeared in the witness box as his own witness and had stated on oath that Sh. Amir Chand was the actual owner of the peace of land measuring about 2000 sq. yds. in village Chaukhandi, now known as Mukherji Park. The suit land was stated to be located in Khasra no. 12/7/8. The Khasra Girdawari in this regard was placed on record as Ex.PW1/1 and PW1/2 respectively along with their English translation as Ex. PW1/3 and PW1/4 respectively. The aforesaid land was sold by Sh. Amir Chand to Sh. N.N. Verma son of Sh. Raja Ram Verma vide copy of agreement Mark A and later on plaintiff had purchased a total piece of land measuring 600 sq. yds. from Sh. N.N. Verma Suit no. 27A/09 Page No. 20/8 including that plot of 200 sq. yds. as well in respect of which his father was a tenant. The photocopy of agreement alongwith other relevant documents in respect of purchase of both the aforesaid plots have been placed on record as Ex. PW1/5 to PW1/10. The Rent Agreement executed between the father of the plaintiff and its erstwhile owner Sh. N.N. Verma has been placed on record as Ex. PW1/11 and two rent receipts executed by his father were being placed on record as Ex. PW1/12 and PW1/13 respectively. It was also stated by the plaintiff that initially when he had entered into an agreement to sell with Sh. N.N. Verma in the year 1985, his father was a tenant in respect of the said land and an agreement to sell was also executed, the copy of which was exhibited as Ex. PW1/5. However, the said agreement could not materialized and later on it was only in the year 1992 that the plaintiff had again made an offer of purchase which was acceded by Sh. N.N. Verma and the aforesaid plot was purchased by him. The land in question was stated to be in possession of the plaintiff as well as his father even prior to 1985. Further, it was stated that earlier the plaintiff was only in possession of 400 sq. yds. of the land, however later on he came into possession of entire 600 sq. yds. which meant that plot of 400 sq. yds. was purchased prior to plot of 200 sq. yds. which fact was contrary to record as agreement to sell in respect of plot of 200 sq. yds. was executed on 21.12.1994 and in respect of plot of 400 sq. yds., it was executed on 22.12.1994 and the land was stated to be situated in Khasra no. 12/4/2. The suit land was shown in red colour in the site plan Ex. PW1/14 and his own shop was also shown in the said site plan bearing no. WZ22A. Plaintiff was stated to be using this land for the purpose of stocking of Suit no. 27A/09 Page No. 20/9 building material and was stated to be carrying on sale and purchase of the same. Further, he had claimed himself to be the owner of the suit land and in continuous peaceful possession thereof since the time of his father where he had also installed one public telephone connection in respect of his shop. He had also got the property demarcated through concerned SDM and his application had been placed on record as Ex. PW1/15 along with demarcation report Ex. PW1/16 and original sazra as Ex.PW1/17 and his license to run the business of sale and purchase of building material had been placed on record as Ex. PW1/18 along with Khasra Girdawari of the property Ex. PW1/19. The said license was stated to be annually got renewed by him as well. He was also stated to have been challaned by the Court under DMC Act twice in the year 1988 as well as in the year 1991 respectively. Though earlier he was carrying on his business under the name and style of Katyal Paint and Building but now same was being run under the name and style of Katyal Buildings. The defendant no. 1 was stated to have had threatened him to remove his building material from the suit property and hence, the present suit was filed by him because the defendant no. 1 wanted to dispossess him forcibly and in an illegal manner and wanted to interfere in his peaceful enjoyment and possession of the suit property.
13.Witness was not crossexamined on behalf of the defendant no. 1. However, during his crossexamination by Ld. Counsel for the defendant no. 2/MCD, it was stated by him that no notice was given by him to the MCD prior to filing of the present suit and had denied the suggestion that the suit property was MCD property, Suit no. 27A/09 Page No. 20/10 which was encroached upon by the plaintiff. However, it was admitted by him that a suit had also been filed against him by Mukherji Park Association after filing of the present suit.
14.In its evidence in defence, the defendant had examined one Sh. Dalip Singh, who was at the relevant point of time working as Assistant Commissioner of MCD. This witness had placed on record his examinationinchief by way of affidavit Ex. DW1, wherein he had stated the suit land to be belonging to the municipality/MCD and had been shown as 'Tot Lot' i.e. meant for small park for children in the approved layout plan of the colony, which had been shown in red colour in the layout plan which was exhibited as Ex. DW1/1. It was also denied by him that the plaintiff had been running a building material store at the suit premises since 1982 and had stated further that no building material had been stored at the suit site but some building material was stacked of side the boundary wall of the suit property towards Chaukhandi road, which road was constructed by the MCD and the suit property was municipal land, which did not belong to any other person including the plaintiff.
15.However, during his crossexamination, he had not been able to sustain his version as he had stated that he had remained posted as Assistant Commissioner in the Western Zone for the period June, 2004 till approximately June, 2006. He had not brought any record of his posting as was deposed by him. Further it was stated that he had no concern with the site plan Ex. DW1/1 as it was the job of Engineering Department. He had shown his ignorance Suit no. 27A/09 Page No. 20/11 regarding the period when Ex. DW1/1 was prepared nor he could admit its authenticity or otherwise as it was stated to be a technical job, for which only Engineering Department could have furnished any satisfactory answer. No correspondence was placed on record by him to show that Ex. DW1/1 was requisitioned by him from the Engineering Department and it was also admitted by him that the site plan brought by him was not the original one but the photocopy, which was exhibited by him in his examinationinchief and further there was an admission on his part that even that photocopy also did not contain any seal and signature of the Town Planning Department of MCD. The witness had no knowledge about the structure or otherwise, which was actually in existence at the site nor he was sure about the accuracy and correctness of the site plan placed on record by him. He had never visited the site in question nor he had maintained any record in respect thereof and he had failed to furnish any record with regard to the action taken by him regarding the encroachment. It was further stated by him that the duty of the office of Assistant Commissioner comprised of licensing and removal of encroachment. However, he had not seen any revenue record in respect of the suit property and had no knowledge as to whether it formed a part of the agricultural land or not. Further he had no knowledge as to whether the suit property was ever acquired by the government or not and he had failed to produce any record to show that the suit property had ever vested in MCD. Even the marking on the site plan Ex. DW1/1 was not done by him but by the Engineering Department and that too not even in his presence. He was stated to be not acquainted with the plaintiff and could not confirm as to whether the plaintiff was Suit no. 27A/09 Page No. 20/12 running a shop in WZ22A, Mukherji Park nor he had any knowledge about the demarcation proceedings carried out by the officials of Government's Revenue Department or that the suit property was falling in Khasra no. 12/7/1 nor he had any knowledge as to whether the site in question earlier belonged to and was owned by Sh. Amir Chand. Hence, the examination of this witness could not yield any fruits to the defendant no.2/MCD.
16.One Sh. Vipin Kumar, Assistant Engineer (M)III of Western Zone, MCD was also examined as a witness who had placed on record, his examinationinchief by way of affidavit Ex. DW2/A, wherein he had stated that the plot bearing Khasra no. 12/7/1 near ship No. 22A, Mukherji Park was a triangular piece of land reserved and earmarked as a 'Tot Lot' as per layout plan of MCD and as on the date of filing of his affidavit, no building material was lying there and it was being used by the residents of the area for parking of their cars as the suit property was a government land and the plaintiff had no right, title or interest of any kind whatsoever in the same.
17.During his crossexamination, he had stated that he was posted in the Western Zone, Rajouri Garden, Maintenance Department of MCD since June, 2009. He could not cite the exact date of his visit for the first time to the suit property. However, it was stated to be in June, 2009 itself and thereafter, it was visited by him almost every month as it was located on the main road. His duty as Assistant Engineer, Maintenance was related to maintenance of roads and drains and there construction. 'Tot Lot' was stated to be Suit no. 27A/09 Page No. 20/13 meant for the development of greenery and its maintenance by Horticulture Department. However, his Department or he himself were not in possession of any record with regard to the maintenance of the suit property as green. The witness could not tell as to whom the vehicles parked belonged to nor he could tell their registration number or make. The witness had also seen the shop of the plaintiff of building material with the name of Katyal Building Material, which was located just in front of the suit property having separated by a road which was 5 meters wide in between shop of the plaintiff and the suit property. He had no knowledge regarding acquisition of land by the government at any point of time whatsoever. He had not brought any original layout plan nor he had consulted any record to ensure that it was a government land. He had though denied the suggestion as wrong that the suit property was not a 'Totlot' land nor it was a government land. He had also shown his ignorance regarding any demarcation proceedings carried out by the government revenue department on 29.01.1998 and preparation of 'Sazra' showing possession of the plaintiff nor he had any knowledge about the fact as to whether the plaintiff was the owner of the site in question after having purchased the same from Sh. N.N. Verma, who was a colonizer working under the name and style of Delhi Land and Development Company and thereafter, the defendant evidence was also closed.
18.After appreciation of the testimonies of the witnesses as well as documents placed on record by them, it has been observed that first agreement to sell in respect of the plot measuring 200 sq.yds. Suit no. 27A/09 Page No. 20/14 was executed by the plaintiff with Sh. N.N. Verma on 20.12.1985, wherein the property was described only as part of plot no. 10 and 11 without mentioning the Khasra number in which it was so falling and it was shown to be bounded as under:
East : Others plot,
West : Road 15 feet,
North : Others plot,
South : Chaukhandi Road 30 feet;
which shows that this portion of land of the plaintiff was only two side open from west as well as south and was having others plots on the eastern as well as northern side. However, in the subsequent agreement to sell dated 21.12.1994 executed between the parties, namely, the plaintiff and the erstwhile owner Sh. N.N. Verma, this area of plot of 200 sq. yds. was stated to be falling in Khasra no. 12/7/1 and 12/4/2 at Mukherji Park, Tilak Nagar and was stated to be bounded as under:
East : Main Road,
West : Others plot,
North : Road,
South : Gali;
which clearly shows that dimensions of this piece of land were totally different from the piece of land in respect of which the plaintiff had earlier entered into an agreement to sell with Sh. N.N. Verma dated 20.12.1985, as had been deposed earlier by him during his examinationinchief that though the sale transaction had not materialized in the year 1985 but subsequently upon his request, Sh. N.N. Verma had agreed to sell him the same land but on an enhanced consideration, which was also accepted by him. Suit no. 27A/09 Page No. 20/15 Further more, this agreement could not specify as to in which of the specific Khasra number, the said piece of land was falling nor it could be born out from the perusal of this sale document itself as to whether the entire piece of land was falling in Khasra no. 12/7/1 as claimed by the plaintiff or it was falling in Khasra no.12/4/2 or partly in 12/7/1 or partly in 12/4/2 and if so, then to what extent it had fallen in both the respective Khasras. Hence, the title of the plaintiff has become shaky in view of his own documents produced on record.
19.So far as plot measuring 400 sq. yds. is concerned, an agreement to sell in respect thereof was entered between the parties on very next date of the earlier sale transaction i.e. on 22.12.1994, wherein the said land was stated to be falling in Khasra no. 12/7/1 and was bounded as under:
East : Others plot,
West : Main Road,
North : Electricity Transformer,
South : Gali;
which means that only the gali situated on the southern side was common between these two plots of land and remaining dimensions were different because on the western side, it was stated to be a main road whereas on the eastern side there was stated to be properties of the others and on the northern side electricity transformer was stated to have been installed. If this plot would have been situated just adjacent to the earlier plot of 200 sq. yds. as claimed by the plaintiff in his pleadings, then this fact must have appeared and had found its mention in his documents as well and Suit no. 27A/09 Page No. 20/16 instead of showing it as other's plot, the document Ex. PW1/9 must have shown the existence of the plaintiff's own plot of 200 sq. yds. measurement on the eastern side of his subsequent plot of 400 sq. yds., which is not the case in hands. Hence, the plaintiff had failed to prove that he was the owner of two adjacent plots combinedly measuring 600 sq. yds. in total and falling under the same Khasra.
20.So far as demarcation report Ex. PW1/16 is concerned, it becomes clear from the perusal of the same that the same was carried out by the officials of Revenue Department in respect of Khasra no. 12/4/2 as well as 12/7/2 and hence, I have failed to understand as to once the proceedings were carried out by them in respect of different Khasra numbers, then on what basis those government authorities had demarcated the land situated in Khasra no. 12/7/1 and held the present plaintiff to be in possession of a total area measuring 600 sq. yds. in Khasra no. 12/7/1 as well as in respect of Khasra no. 12/4/2. Further it appears that the land measuring 200 sq. yds. was stated to have fallen in Khasra no. 12/4/2 by the aforesaid demarcation report because of the following portion of the report reproduced here as under:
"The petitioner is in possession of land measuring 0.12 biswas as per the two G.P. As enclosed with the application made by the applicant in respect of 400 sq. yds. and 200 sq. yds. total 600 sq. yds. in Khasra No. 12/7/1 and 12/4/2 and as per the Khasra Girdwari pertaining to the year 1994."
which fact itself had been contrary to the contents of the agreement to sell Ex. PW1/7, where this land was stated to have fallen in both Suit no. 27A/09 Page No. 20/17 the Khasras i.e. 12/7/1 as well as 12/4/2 and moreover, from the perusal of the averments in the plaint, it appears that the plaintiff had no grievances in respect of the plot measuring 400 sq. yds. rather he was facing the problems at the hands of the defendants in respect of plot of 200 sq.yds only, which was earlier under the tenancy of his late father and was let out to him for commercial purpose. However, in his rent agreement as well, which has been placed on record as Ex.PW1/11, no specific commercial activity has been cited which he was authorized to carry out at the plot in question. Hence, it cannot be held with precession that right from the start of the tenancy of the plot with his father, the plaintiff had been using the same for stocking of any building material. Rather from the conduct of the plaintiff, which has remained shaky throughout the trial, it appears that he had not approached the Court with clean hands because right from day one from the date of institution of the suit till it had reached at the stage of final arguments, the stand of the plaintiff was that his father was the actual owner and was in possession of the plot measuring 500 sq. yds., afterwards it was purchased by him from one Sh. N.N. Verma and thereafter the plaintiff had become the absolute owner and in possession thereof. However, it was only when the Ld. Predecessor had adjourned the case for final arguments for 26.07.2011, then the plaintiff had wake up from a long sleep and had filed an application under Order 6 Rule 17 CPC for amending para no. 1 of his plaint to show that earlier his father was actually a tenant and in possession of plot measuring 200 sq. yds. only, which was afterwards purchased by the plaintiff along with another plot measuring 400 sq.yds. and thereafter, he had become owner in Suit no. 27A/09 Page No. 20/18 possession thereof. Though the said amendment had been allowed by Ld. Predecessor but no plausible reason was furnished by the plaintiff in the said application as to what prevented him from rectifying the mistake on any of the earlier available opportunities or occasions especially when the suit was initially filed by him in the year 1995 itself.
21.Not only this, but also, as per the averments of the plaintiff himself, the plaintiff was running a shop near his plot and was storing his building material in the name and style of M/s. Katyal Building Material since last 14 years but it is not his case that the building material was being stored by him inside his shop. DW2 had categorically stated in his crossexamination that there existed a road of about 5 meters in width between the shop of the plaintiff and the property where he was keeping the building material. It was also deposed by him that the plot in question was being used by the local residents for parking of their vehicles. However, no suggestion was ever put to him during his crossexamination by Ld. Counsel for the plaintiff that either no such vehicles were being parked by the residents or that there existed no road between the shop of the plaintiff as well as the property in question. By not putting any such suggestion to the witness, the plaintiff is presumed to have conceded to this statement of DW2, for which an adverse inference is also liable to be drawn against him.
22.Although even MCD had also not been able to prove its own ownership in respect of the plot in question by producing any such document on record but it is settled position of law that the suit of Suit no. 27A/09 Page No. 20/19 the plaintiff has to stand on its own legs and once onus to prove the ownership as well as possession qua the said piece of land where the plaintiff was stated to have stocked the building material was upon the plaintiff, then I have no hesitation in holding that from the material available on record, the plaintiff had miserably failed to prove his own ownership as well in respect of suit property in question. Once the plaintiff had not been able to prove his ownership and possession, then he is not entitled to any relief of permanent injunction as well as prayed by him. Accordingly, issue nos. 4 and 5 are decided against the plaintiff and in favour of the defendants and it is hereby held that plaintiff is not the owner of the suit property in question.
ISSUE NO. 6 (RELIEF):
23.In view of my findings on issues no. 4 and 5 above, I am of the considered view that plaintiff is not entitled to any relief in the present suit. Hence, suit of the plaintiff is dismissed with no order as to costs.
24.Decree sheet be prepared accordingly.
25.File be consigned to Record Room.
Announced in the open Court today the 12th day of April, 2012.
(LOKESH KUMAR SHARMA) JSCCCumASCJCum GUARDIAN JUDGE (West) 12.04.2012 Suit no. 27A/09 Page No. 20/20