Delhi District Court
Ranbir Singh vs Pran Nath Chawla And Ors on 17 December, 2024
IN THE COURT OF SH. HARJYOT SINGH BHALLA
DISTRICT JUDGE-05, SOUTH DISTRICT,
SAKET COURTS, NEW DELHI
Appeal No. : MCA DJ/08/2024
CNR No. : DLST01-004535-2024
Date of Institution : 07.05.2024
Date of order : 17.12.2024
IN THE MATTER OF:
Ranbir Singh
S/o Lt. Shiv Lal
R/o 31/2, Village Jia Sarai,
New Delhi-110016
......Appellant
Versus
1. Pran Nath Chawla
S/o Shri Duni Chand Chawla
R/o S-197, Greater Kailash,
Part-II, New Delhi-110048
2. Municipal Corporation of Delhi
Dr. S.P.M. Civic Centre, Minto Road,
SKD Basti, Press Enclave, Ajmeri Gate,
New Delhi-110002
3. SDM (Mehrauli)
Old Tehsil Building,
Mehrauli, New Delhi.
4. Office of the Tehsildar
Sub-Division, Mehrauli,
Old Tehsil Building, Mehrauli,
New Delhi
MCA DJ 08/2024 Page no. 1 of 10
5. Mrs. Shankutla Khokkar
W/o Lt. Mahanand Khokkar
R/o 31/2, Village Jia Sarai,
New Delhi-110016
........Respondents
JUDGMENT
1. Vide this judgment, I shall dispose of the present appeal filed under Order XLIII read with Section 104 of Civil Procedure Code, 1908 on behalf of the appellant against order dated 13.03.2024, passed by the Ld. SCJ-Cum-RC (South), Saket District Courts, New Delhi.
2. As per the plaint, the plaintiff is the owner of land ad- measuring 150 square yards i.e. 125.4 square meters equivalent to 0.3 biswa in Khasra No. 74/2 situated in the urbanized village of Jiya Sarai, New Delhi (hereinafter referred to as 'suit property') by virtue of registered Sale Deed dated 11.08.2010, which was executed in his favour by one Sh. S.M. Aggarwal. On an application being made by the plaintiff on 17.09.2015 before the Revenue Authority, the suit property was mutated in the name of the plaintiff. In the year 2017, due to dispute regarding the boundary between the owners/occupiers of Khasra No. 74/2, the plaintiff filed an application dated 07.06.2017 before the Tehsildar seeking demarcation of the suit property. Despite repeated efforts/requests of the plaintiff, no demarcation was conducted. Consequently, plaintiff filed a Writ Petition (Civil) No. 13842/2021 titled as 'Pran Nath Chawla vs. Office of District Magistrate, District South & Ors.' before the Hon'ble High Court of Delhi seeking directions for demarcation of the suit property. The said Writ Petition was MCA DJ 08/2024 Page no. 2 of 10 disposed of by the Hon'ble High Court of Delhi vide order dated 18.02.2022. In pursuance to the said order, Tehsildar issued notice dated 16.07.2022 for demarcation of the suit property scheduled to take place on 26.07.2022, 11.10.2022 & 19.10.2022. That vide a further notice, dated 14.06.2023, the date for demarcation was re- fixed by the Tehsildar to 30.06.2023.
3. It is submitted that the demarcation proceedings of the suit property has not yet been concluded & is pending, till date and therefore, plaintiff alongwith other owners of the suit property are merely co-owners of their unidentified shares. In May 2023, plaintiff came to know that the defendant No.1 claiming himself to be one of the co-owners in respect of the portion of the suit property alongwith defendant No.2 has started carrying out unauthorized and illegal construction in the suit property. It is submitted that until the demarcation of the suit property, none of the owners have any right to carry out any sort of construction on the suit property as their respective shares are unidentified. It is submitted that the plaintiff made every effort including complaint made before MCD, to stop the illegal and unauthorized construction being carried out by the defendants No.1 & 2 but to no avail. Hence, the present suit.
4. By way of application under Order XXXIX Rule 1 & 2 CPC, it is prayed that the interim injunction may be granted in favour of the plaintiff by restraining the defendants No.1 & 2 including their servants, agents etc. from carrying out any construction activity in the suit property until the pendency of the present suit.
5. Defendants No.1 & 2 have refuted the contentions of the plaintiff by filing Written Statement and reply to the application under Order XXXIX Rule 1 & 2 CPC. It is submitted by the MCA DJ 08/2024 Page no. 3 of 10 defendants that the sale-deed dated 11.08.2010, being relied upon by the plaintiff, is a false and incorrect document as the entire unacquired land ad-measuring about 1750 square yards falling in Khasra No. 74/2, Village Jia Sarai, New Delhi is an ancient water body land belonging to Government only. It is further submitted that the said land has been unauthorizedly & illegally, encroached & occupied by numerous persons by getting buried the said water bodies, by levelling the land and raising respective houses. It is further submitted that the plaintiff has no right, title and interest over the said category of land, which is absolutely non- transferable being the water body land belonging to Government. It is further submitted that defendants herein are the recorded owners and in possession of private land falling in Khasra No. 408/75/2, Village Jia Sarai, New Delhi since the year 1977 and they have no concern with the land falling in Khasra No. 74/2. It is further submitted that it seems that the plaintiff is neither aware about the identity of his share in Khasra No. 74/2 nor is he in the possession of the same. The plaintiff under the garb of having purchased an unspecified and non-existing land, purportedly in Khasra No. 74/2 is actually trying to illegally tress-pass into the property of the defendants falling in Khasra No. 408/75/2, Village Jia Sarai, Delhi on the false pretext that the defendants are raising illegal/unauthorized construction in the suit property. It is prayed that the application of the plaintiff may be dismissed with costs.
6. Defendant No. 3/MCD has also filed the status report as well as Written Statement stating therein that the property in question has been booked for unauthorized construction and show cause notice dated 20.02.2024 has been issued/served upon the owners/occupiers.
MCA DJ 08/2024 Page no. 4 of 10
7. Status report has also been filed on behalf of defendants No. 4 & 5 wherein it is submitted that the area wherein the suit property is situated stands urbanized and therefore, the Delhi Development Authority may be directed to conduct the demarcation and for removal of unauthorized construction.
8. Arguments heard. I have perused the record.
9. Before proceedings to the rival contentions advanced at the Bar, reference is made to Order XLIII Rule 1(r) of the Code of Civil Procedure which reads as under:
Order 43 Rule 1, An appeal shall lie from the following orders under the provisions of Section 104 namely;
(r) An order under Rule 1, Rule 2, Rule 2A, Rule 4 or Rule 10 of Order 39.
10. It is also necessary to refer to Order XXXIX Rule 1 Code of Civil Procedure, which provides:
1. Where in any suit it is proved by affidavit or otherwise -
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree or
(b) that the defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors, (c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or disposition of the plaintiff, or otherwise causing injury to MCA DJ 08/2024 Page no. 5 of 10 the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders."
11. The position of law with respect to the scope of interference by an appellate Court in an interlocutory injunction granted by the Court of first instance while exercising its discretion and substituting its own discretion is well settled. The Hon'ble Supreme Court in the case of Wander Ltd & Anr Vs. Antox India Pvt. Ltd., 1990 Supp SCC 727, held as under:
13. On a consideration of the matter, we are afraid, the appellate bench fell into error on two important propositions. The first is a misdirection in regard to the very scope and nature of the appeals before it and the limitations on the powers of the appellate court to substitute its own discretion in an appeal preferred against a discretionary order. The second pertains to the infirmities in the ratiocination as to the quality of Antox's alleged user of the trademark on which the passing-off action is founded. We shall deal with these two separately.
14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one MCA DJ 08/2024 Page no. 6 of 10 reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph [(1960) 3 SCR 713 : AIR 1960 SC 1156] : (SCR 721) "...
These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton [1942 AC 130] „...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case".
12. It is further to be noted that in the case of Babu Ram Dharam Prakash Vs. Izuk Chemical Works, 2008 SCC Online Del 1734, the Hon'ble Apex Court referred to the judgment in Ramdev Food Products Pvt. Ltd. Vs. Arvindbhai Rambhai Patel, (2006) 8 SCC 726 and emphasized on the principles to be followed by the Appellate Court while considering the injunction order passed by Court in the first instance. The observations are as follows:
5. As has been mentioned above, the Appeal is against an interlocutory Order granting the Prayers contained in an Application under MCA DJ 08/2024 Page no. 7 of 10 Order XXXIX Rules 1 and 2 of the CPC.
The approach which must be adhered to by the Appellate Court in such matters is perspicuously enunciated in the decision of the Supreme Court in Ramdev Food Products Pvt. Ltd. v. Arvindbhai Rambhai Patel, (2006) 8 SCC 726 : AIR 2006 SC 3304, paragraphs 128 and 129 of which are topical:--
128. The grant of an interlocutory injunction is in exercise of discretionary power and hence, the appellate courts will usually not interfere with it. However, appellate courts will substitute their discretion if they find that discretion has been exercised arbitrarily, capriciously, perversely, or where the court has ignored settled principles of law regulating the grant or refusal of interlocutory injunctions. This principle has been stated by this court time and time again. (See for example Wander Ltd. v. Antox India P. Ltd., 1990 Supp SCC 727, Lakshmikant V. Patel v. Chetanbhai Shah, (2002) 3 SCC 65 and Seema Arshad Zaheer v.
MC of Greater Mumbai, (2006) 5 SCC 282 : (2006) 5 Scale 263).
129. The appellate court may not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material.
The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that it had considered the matter at the trial stage it would have come to a contrary conclusion.
MCA DJ 08/2024 Page no. 8 of 10
13. The Ld. Trial Court has considered the rival claims carefully. It has appreciated the stand of the defendants/appellants that they were owners of land falling in Khasra no. 408/75/2 and that the plaintiff was claiming ownership over a portion of land in Khasra no.74/2, both Khasras falling in Village Jia Sarai, New Delhi. It is evident from the plaint and sale deed that the sale is of specific identifiable 150 Sq. Yards duly described therein. However, it is the claim of the plaintiff that due to urbanization and construction activity, the said boundaries of Khasra no. 74/2 are not identifiable, which has resulted in plaintiff moving the application for demarcation. The Hon'ble High Court of Delhi has after appreciating the claim given the direction to the authority to dispose off the application for demarcation. The defendants are not claiming any title to any land in Khasra no. 74/2. Therefore, prima facie, there is no cloud on the title of the defendant and the registered sale deed has to be accepted at the face value, at least, at this stage. The Trial Court has, after careful examination of the claims, passed a narrow and specific injunction order restraining the defendants from carrying out unauthorized construction on the suit property i.e., land falling in Khasra no. 74/2.
14. In my view, the Trial Court has passed the order keeping the equities in mind and the fact that irreparable harm and injury may be caused to the plaintiff if the injunction was not granted and that the balance of convenience was also in his favour. The Trial Court has noticed that in RCA No.8793/2016 and another case, the Ld. Principal District & Session Judge, South, had held that the defendants had failed to show that Khasra no.74/2 was a water body.
MCA DJ 08/2024 Page no. 9 of 10
15. In these circumstances, this court is not inclined to interfere in the exercise of discretion by the Trial Court. However, needless to say that the expression suit property has to be read as Khasra no. 74/2 and the injunction order cannot be said to be extending to any part of Khasra no.408/75/2. However, the extent of the said Khasras, of course, can only be established during trial. There is no blanket injunction order passed against the defendants, but a qualified order, which is reasonable. There is no merit in appeal, which is disposed off as dismissed.
16. TCR be sent back.
17. Appeal file be consigned to Record Room.
Digitally signedHarjyot by Harjyot Singh Bhalla Singh Date:
2024.12.17 Bhalla 15:23:14 Pronounced in the open court +0530 on 17.12.2024 HARJYOT SINGH BHALLA DJ-05, SOUTH SAKET COURTS NEW DELHI MCA DJ 08/2024 Page no. 10 of 10