Delhi District Court
Sh. Ashok Kumar vs Municipal Corporation Of Delhi on 7 January, 2012
IN THE COURT OF SH. LOKESH KUMAR SHARMA, JSCCCUM
ASCJCUMGUARDIAN JUDGE (WEST): DELHI
Suit No. 177/09
Unique Case I.D. No. 02401C5672762004
Sh. Ashok Kumar
S/o Sh. Om Prakash
Of Shops No. 5 and 6
Situated at Ravi Dass Market
Opposite Natraj Cinema,
New Delhi110015. ...........Plaintiff
Versus
1. Municipal Corporation of Delhi
Through its Commissioner
Town Hall, Chandni Chowk,
Delhi110006.
2. Deputy Commissioner,
Municipal Corporation of Delhi
West Zone, Rajouri Garden,
New Delhi. .........Defendants
Date of filing of the suit : 03.09.2004
Date of reserving order : 05.01.2012
Date of pronouncement of order : 07.01.2012
J U D G M E N T
1. This is a suit filed by the plaintiff for seeking decree of permanent injunction in his favour and against the defendants claiming himself to be owner in possession of shop no. 5 and 6, situated at Ravi Das Market, Opposite Natraj Cinema, New Delhi110015 (Hereinafter referred as "the suit shops") after having purchased the same respectively from Smt. Vidya Devi W/o Shy. Bhagwan Dass R/o 16/1347, Bapa Nagar, Arya Samaj Road, Karol Bagh, New Suit no. 177/09 Ashok Kumar vs MCD Page No. 1/6 Delhi on 18.10.1994 and Sh. Kashmiri Lal S/o Sh. Kishan Lal Chopra of B205, Mahavir EnclaveII, New Delhi on 25.02.1997 after execution of documents such as Agreement to Sell, General Power of Attorney, Affidavit, Will and Receipt etc.
2. The plaintiff was stated to have been running the shop of Repair of Cylinders and Spare Parts in the suit shops and Tehbazari was being claimed in respect of suit shops even prior to their purchase by the plaintiff against valid Tehbazari receipts. It was stated further that the suit shops were situated nearby wall opposite Natraj Cinema, New Delhi and the suit shops had never caused or created any hindrance in the flow of the traffic nor there was any illegal or unauthorized encroachment made at the suit property. As per plaintiff, on 02.09.2004 some officials of the defendants came at the site and tried to demolish the suit shops of the plaintiff but due to his active resistance, they could not succeed in their efforts.
3. In the light of aforesaid facts, the plaintiff had filed the present suit on the basis of aforesaid documents wherein it has been stated that the cause of action for filing of the same had arisen firstly on 18.10.1994, 25.02.1997 and lastly on 02.09.1994 when the officials of the defendants had visited the suit shops in question and hence, it was prayed that by way of a decree of permanent injunction passed in favour of the plaintiff and against the defendants thereby the defendants, their agents, associates etc. be permanently restrained from demolishing the suit shops as shown red in the site plan and also be permanently restrained from interfering into the peaceful possession of the plaintiff in respect of the suit shops in any manner whatsoever.
Suit no. 177/09 Ashok Kumar vs MCD Page No. 2/6
4. After service of the defendants, they had filed their written statement wherein they had taken the preliminary objections that the suit of the plaintiff was hit by Section 477 and 478 of the Delhi Municipal Corporation Act for want of statutory notice upon the defendants. It was also stated that the suit of the plaintiff was without any cause of action and based on false, frivolous and baseless grounds. It has been stated further that the plaintiff was an unauthorized occupant/encroacher of the suit site without any right, title or interest in the suit property and categorically stated that the suit was barred by provision of 41 (h) & (i) of the Specific Relief Act. On merits each and every para of the plaint was specifically denied by the defendants.
5. The plaintiff had also filed replication to the written statement of the defendants, wherein he had denied all the preliminary objections as wrong and incorrect as were taken by the defendant in their written statement. On merits, contention of the plaint were reiterated and reaffirmed.
6. After considering all the pleadings of the parties, vide order dated 10.09.2009 Ld. Predecessor was pleased to frame following issues for the purpose of adjudication.
1. Whether the plaintiff has got any right with respect to suit property or he is only an encroacher qua the suit property?
OPP Suit no. 177/09 Ashok Kumar vs MCD Page No. 3/6
2. Subject to out come of issue no. 1, whether the plaintiff is entitled for the relief of permanent injunction?
OPP
3. Relief.
7. In order to prove his case, the plaintiff had appeared in the witness box as a sole witness and filed in evidence, his examinationinchief by way of affidavit Ex.PW1/A wherein he had reiterated all the factual contents of this plaint on solemn affirmation and besides that he had also placed on record document Ex.PW1/1 which was the site plan.
8. During his crossexamination by Ld. Defence Counsel appearing for both the defendants, quite contrary to his version as contained in his plaint, during his crossexamination, the plaintiff had stated that suit shops were purchased by him from one Sh. Gyan Chand who had not shown him any document of title in his favour at the time of sale transaction. He had denied the suggestions put to him that he was not the owner and he was an encroacher upon the suit shops but he had admitted that the suit shops was not allotted to him on Tehbajari basis. Thereafter, PE was closed.
9. The defendants were offered an opportunity to adduce their evidence in defence to which they had declined and statement of Ld. Counsel for the defendant was recorded in this regard on 02.05.2011.
Suit no. 177/09 Ashok Kumar vs MCD Page No. 4/6
10.I have heard arguments of Ld. Counsel for the plaintiff and Ld. Counsel for the defendants and carefully perused the record.
11.The issue wise finding are as under:
ISSUE NO. 1:
12. Whether the plaintiff has gone any right with respect to suit property or he is only an encroacher qua the suit property?
"OPP"
13. The onus to prove this issue was upon the plaintiff in respect of which he had deposed similar lines as were contained in his plaint but he has not been able to prove any document of ownership in his favour and Tehbajari receipts as per law. The exhibit numbers have been left blank by the plaintiff in his affidavit. Only one Tehbajari receipt dated 29.10.1981 was placed on record which pertained to the site of taxi stand in Kirti Nagar and that too for only an opportunity on occasion of "Deepawali Tehbajari". Therefore, the said Tehbajari receipt not only pertained to a different area but also for a limited period for a specific purpose.
14.However, it is settled preposition of law the Tehbajari itself cannot be claimed as a matter of right or vests any right, title or interest in the person so claiming it. The land admittedly is a Government Land which could not be transfered, sold or alienated by any private individual. Hence, the plaintiff has miserably failed to discharge the onus of this issue and the same is accordingly decided against the plaintiff and in favour of the defendants. Suit no. 177/09 Ashok Kumar vs MCD Page No. 5/6 ISSUE NO. 2 :
15. Subject to out come of issue no.1, whether the plaintiff is entitled for the relief of permanent injunction?
"OPP"
16. In view of my finding on issue no. 1, the plaintiff is not entitled for any relief of permanent injunction as sought by him in the present suit and accordingly, the issue no. 2 is also answered against the plaintiff and in favour of the defendant.
17.In view of the aforesaid discussion, the suit of the plaintiff is hereby dismissed.
18.No order as to costs.
19.Decree sheet be prepared accordingly.
20.File be consigned to Record Room.
Announced in the open Court Today, 7th January, 2012.
(LOKESH KUMAR SHARMA) JSCCCumASCJCum GUARDIAN JUDGE (West) 07.01.2012 Suit no. 177/09 Ashok Kumar vs MCD Page No. 6/6