Delhi District Court
Shri Balbir Singh vs Municipal Corporation Of Delhi on 4 February, 2010
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ(NW), ROHINI COURTS, DELHI
S135/08/2000
1. Shri Balbir Singh
S/o Late Shri Gishu @ Shri Ghisa Ram
2. Shri Nafe Singh
S/o Late Shri Gishu @ Shri Ghisa Ram
Both resident of Village Bajidpur Thakran,
Post Office Nangal Thakran,
Delhi
3. Shri Dhanpat Singh (deceased) through his LR's/Representatives :
(a) Smt. Rajwanti, Widow of Late Shri Dhanpat Singh
(b) Shri Sanjeev K. Shokeen S/o Late Shri Dhanpat Singh
(c) Shri Sheetal Kumar Shokeen s/o Late Shri Dhanpat Singh
Presently all r/o House No.4,
Asthal Colony, Narela Road,
Bawana, Delhi 110039
(d) Smt. Sulekha (married daughter)
W/o Shri Parvesh Kadyan
D/o Late Shri Dhanpat Singh
R/o House No.569, Village & P.O. Bhalswa,
Jahangirpuri, Delhi - 110033 .....Plaintiffs
Versus
1. Municipal Corporation of Delhi,
(Service be effected through its Commissioner)
Town Hall, Delhi - 110006
2. Smt. Chand Kaur
W/o Late Shri Jai Pal Singh
3. Shri Hargian
Late Shri Jai Pal Singh
4. Shri Harbeer Singh
Late Shri Jai Pal Singh
5. Ms. Poonam
D/o Late Shri Jai Pal Singh
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI
Sl. No.2 to 5 all r/o Village Sultanpur Mazra
Delhi - 110041 .....Defendants
Date of Institution of the Suit : 21.12.2000
Date of Reserve for Judgment : 21.01.2010
Date of final Judgment : 04.02.2010
JUDGMENT
1. Present is a suit seeking relief of permanent and mandatory injunction on the averments that father of the plaintiffs namely Shri Ghisa Ram and his brother Shri Ran Singh were the owners in possession of land measuring 1400 sq. yards in Khasra No.565 in Village Sultanpur Majra, Delhi out of which 700 sq. yards was sold to the plaintiffs vide GPA dated 24.08.1981 and out of which plaintiffs further sold an area measuring 200 sq. yards to one Bhim Singh and as such are in possession of remaining land of 500 sq. yards (hereinafter called the 'suit property). It is further stated that after purchasing land for valuable consideration, the plaintiffs constructed boundary wall, tin shed room etc. and defendants No.2 to 5 i.e. widow and children of their deceased brother namely Late Shri Jai Pal Singh have no right, title or interest in the property, but they made an attempt to occupy the suit property in the year 1998 when defendants No.2 to 5 herein filed a suit for permanent injunction against the plaintiffs which was dismissed by Shri Harish Dudani, Ld. Civil Judge, Delhi on 21.05.94. Thereafter, defendants No.2 to 5 preferred an appeal against the said Judgment which was disposed off as settled since the plaintiffs herein made a statement that they shall not dispossess the defendants No.2 to 5 herein without due process of law. It is further stated that on 14.12.2000 when the plaintiffs Nafe Singh visited the property, he found that the portion shown IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI green in the site plan has been demolished by defendant No.1/MCD without any notice and defendant No.1 has a plan to encroach upon the property of the plaintiffs by making a street therein and as such by way of the present suit, it was prayed that a decree of mandatory injunction should be passed directing defendant No.1 to reconstruct the room and the tin shed in the portion shown in green and further, they should be restrained from taking the possession of the suit property measuring 500 sq. yards.
2. In the written statement filed by defendant No.1, it was stated that the suit is barred for want of notice u/s 477/478 of DMC Act and further plaintiffs have no locus standi to file the present suit as they have no legal right, title or interest in the suit property which is a road already constructed by MCD after taking encroachment removal action. It was also stated that defendants No.2 to 5 have already filed a similar suit against MCD which is also pending before this court, the present suit on the same cause of action is not maintainable. It was stated that a road in the unauthorized colony Raj Park, Sultanpuri, Delhi was carved by MCD being on government land as per the lay out plan of the area as per resolution No.362 dated 09.11.98 and therefore, the suit is liable to be rejected and more so in view of section 41 (h) of Specific Relief Act.
3. In the written stated filed by defendants No.2 to 5, it was stated that the plaintiffs are neither the owner nor in possession of the property in dispute which was given to the deceased husband of defendant No.2 and father of defendants No.3 to 5 by his father Late Shri Ghisu Ram in 197475 and since then defendants No.2 to 5 are in possession of the property and as such IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI plaintiffs are not entitled to the relief as prayed for.
4. On the pleadings of the parties, following issues were framed by my Ld. Predecessors on 11.09.2002 :
1. Whether plaintiff is entitled to decree of mandatory injunction as prayed for? OPP
2. Whether plaintiff is entitled to decree of permanent injunction as prayed for? OPP
3. Whether the suit is bad for Section 477, DMC Act? OPD
4. Whether plaintiff has no locus standi to file the present suit? OPD
5. Whether plaintiff has not approached the court with clean hands and suppressed the material facts? OPD
6. Relief?
5. My findings as per issues are as follows : ISSUES NO.1 & 2 :
Both the issues are inter connected and as such are taken together. The onus of proving both the issues was on the plaintiffs who examined one of them namely Nafe Singh as the sole witness who has deposed in the court as per his plaint and has stated that plaintiffs are in possession of land measuring 700 sq. yards out of which 200 sq. yards has been sold by them. He has also placed on record the documents in their favour i.e. GPA Ex. PW1/1 and receipt Ex. PW1/2, site plan Ex. PW1/3 and the Khatoni Ex. PW1/4 and the certified copy of the orders passed by Shri Harish Dudani, the then Ld. Civil Judge, Delhi vide Ex. PW1/7 and Ex. PW1/8 and the orders passed in their appeal Ex. PW1/9.
6. The witness was cross examined by the counsel for defendants wherein IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI it has been admitted that as per revenue record, they are not shown as bhumidar or the owners of the property and further no notice has been given to MCD prior to filing of this suit. It has been argued on behalf of the plaintiffs that since admittedly, plaintiffs have registered GPA in their favour, they are the owners of the property and further defendants No.2 to 5 lost their suit filed against the plaintiffs before the court of Shri Harish Dudani, the then Ld. Civil Judge, Delhi and as such plaintiffs are entitled to the relief of permanent and mandatory injunction as prayed for. Further, defendant No.1/MCD has not been able to place on record even a single document to show that how MCD became the owner of the property and as such without acquisition of the property as per law, MCD cannot construct any street on the private land belonging to the plaintiffs, the suit should be decreed.
7. Two witnesses were examined on behalf of defendant No.1 i.e. Junior Engineer and Executive Engineer who have deposed on oath that plaintiffs are mere encroachers on the government land which has been demolished in pursuance to lay out plan Ex. DW1/1 and the photographs Ex. DW1/2 to Ex. DW1/5 clearly shows a road exist there and as such suit should be dismissed. The witnesses were cross examined by the counsel for the plaintiffs, but there is no important cross examination to show that plaintiffs are the owners of the property. Defendants No.2 to 5 have also examined defendant No. 4 as their sole witness who has reiterated the WS filed by defendants No.2 to 5 and there is no important cross examination to this witness.
8. I have perused the record. Admittedly, plaintiffs after making a IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI statement in the appeal filed by defendants No.2 to 5 herein, that they will not dispossess the defendants No.2 to 5 without due process of law specifically admitted that plaintiffs herein were never in possession of the property. Further their own suit for possession was dismissed by Shri Gurdeep Kumar, the then Ld. ADJ, Delhi on the grounds that they have failed to prove ownership. Though appeal against that Judgment is subjudice before the Hon'ble High Court but the fact remains that the plaintiffs are not in possession of the property and has been held by the first court to be not the owner of the property. To claim a relief of injunction, plaintiffs are required to show that they have some personal interest in the property and when they are not in possession of the property, a simplicitor suit for injunction is not maintainable and they are required to file a suit for possession. It is admitted in the cross examination by PW1 that road exists in the property which is also visible from the photographs Ex. DW1/2 to Ex. DW1/5 and as such the present suit is simplicitor for injunction seeking directions against MCD to remove the road and reconstruct the alleged shops and the tin shed is not maintainable. Otherwise also, plaintiffs have claimed ownership on the basis of documents Ex. PW1/1 and Ex. PW1/2, they are simplicitor unregistered GPA and a receipt and as such and are incapable of transferring any right, title or interest in favour of the plaintiffs being in immovable property of a value of more than Rs.100/ and as such the same cannot be relied upon in view of section 17 read with section 49 of Indian Registration Act. Reliance can be placed in Judgment of Hon'ble Supreme Court pronounced in the case titled as "Suraj Lamp Industries Vs. State of Haryana" reported in 2009 (7) SCC IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI
363. In view of the evidence on record and law, plaintiffs have failed to prove the issues No.1 and 2 which are decided against the plaintiffs.
9. ISSUE NO.3 The onus of proving this issue was on defendant No.1. PW1 in his cross examination has admitted that no notice was given to MCD before filing this suit. The suit is of mandatory injunction and as such there is essential requirement of serving a notice on MCD prior to filing this case and therefore, the suit is bad for not serving a notice as required under DMC Act. Therefore, issue No.3 is decided in favour of defendant No.1.
10. ISSUE NO.4 The onus of proving this issue was on defendants and it has been shown during the course of trial that plaintiffs have no locus standi to file this case since they are neither the owner nor in possession of the property and further they themselves lost the suit for possession against defendants No.2 to 5 of which appeal is pending and further they have also failed to prove their ownership in the earlier suit for possession as well as in the present suit. They are not the registered owners of the property nor the owners in the revenue record and as this issue is also decided in favour of the defendants.
11. ISSUE NO.5 The onus of proving this issue was on defendants. However, Ld. Counsel for the defendants has not been able to draw my attention to any material fact concealed by the plaintiffs. This issue therefore, is decided against the defendants.
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI
12. RELIEF:
In view of my findings given on Issues No.1 to 4, the suit of the plaintiffs is liable to be dismissed on merits as well as for the reason for want of notice u/s 477/478 of DMC Act. The suit is dismissed with no order as to cost. Decree Sheet be prepared. File be consigned to Record Room.
Announced in the open court (AMIT KUMAR)
on 04.02.2010 JSCC/ASCJ/GJ(NW)
ROOM NO.217, ROHINI
COURTS: DELHI