Delhi District Court
Sh. Abdul vs Dda & Ors. Page 1 Of 14 on 29 August, 2018
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
IN THE COURT OF SH. G. N. PANDEY
ADDITIONAL DISTRICT JUDGE (NE)
KARKARDOOMA COURTS, DELHI
RCA DJ No. 53/18
IN THE MATTER OF :
1. Sh. Abdul
S/o Late Sh. Bundu
R/o 536, O Block,
Sundar Nagari, Delhi93
2. Sh. Shamshad Ali
S/o Late Sh. Bundu
R/o 266, M Block,
Sundar Nagari, Delhi93
3. Sh. Irshad
S/o Late Sh. Bundu
R/o 536, O Block,
Sundar Nagari, Delhi93
.......Appellants
V E R S U S
1 Delhi Development Authority
Through its Authorized person
INA, New Delhi.
2. The slum Authority
Through its Authorized person
Vikas Kutir, Slum & J. J. Wing, ITO,
New Delhi02
RCA DJ No. 53/18
Abdul & Ors Vs. DDA & Ors. page 1 of 14
Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
3. EDMC ( East Delhi Municipal Corporation of Delhi)
North East,
Through its commissioner, Keshav Chowk,
Shahdara, Delhi32
........ Respondents
Date of Institution of Appeal : 04.06.2018 Arguments heard on :18.08.2018 Date of Judgment/Order :29.08.2018 Decision :Appeal is dismissed with cost.
J U D G M E N T
1. The present appeal impugns the judgment and decree dated 28.04.2018 passed by Ld. JSCC/ASCJ/Guardian Judge (NE), Karkardooma Courts, Delhi in suit No. 5111/2015 whereby the suit for permanent and mandatory injunction filed by the plaintiffs / appellants against the defendants / respondents has been dismissed.
(The parties are referred herein as per their respective status before Ld. Trial Court.)
2. The brief and relevant facts in the background of which the present appeal was filed by the appellants who are the plaintiffs in the original suit are reproduced from the impugned judgment as follows:
(i) The present suit has been filed by the plaintiff against the defendants for permanent and mandatory injunction.
(ii) Brief facts of the amended suit ( amendment is allowed vide order dated 30.04.2016) as necessary for disposal of the present suit are that plaintiff's father Sh. Bundu was alloted a plot of about 60 sq. mts for the purpose of garage of rickshaw under the scheme of family planning by the DDA and Sh. Bundu was RCA DJ No. 53/18 Abdul & Ors Vs. DDA & Ors. page 2 of 14 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
occupying the suit property since 18.10.1976. The father of the plaintiff's was using the suit property as rickshaw garage and he expired on 17.06.1993 at Delhi and at the time of his death, the said garage was also in existence and the plaintiff's were cooperating Sh. Bundu in his work. Sh. Bundu left behind the plaintiffs as his legal heirs after his death and all the plaintiff's and their family members are doing the work as rickshaw puller and they earn their livelihood from the said work and they have no other work and suit property is the only means of their livelihood. Plaintiffs have alleged that the officials of DDA visited the suit property and tried to dispossess the plaintiffs from the suit property while they are in possession over the same as suit property was alloted to their father as commercial plot vide allotment order dated 18.10.1976. On 01.01.2013 the official of the DDA visited the suit property and threatened the plaintiffs to dispossess from the suit property and further threatened either to vacate the said garage or they would remove the same by police force. Hence, the present suit was filed.
Defendants' Case:
(iii) In the WS, filed on behalf of defendant no.1/ DDA, it is submitted that the sit land does not fall under the jurisdiction of DDA and the land in question falls in Khasra No. 936 min of Village Mandoli. The plaintiff's are in temporary possession in park of M Block, Sunder Nagari, Nand Nagari, Delhi. The JJ Scheme has been developed by DDA Slum Department. Now, this area is under the DUSIB, Govt. of NCT of Delhi. As per the record, the Khasra No. 936 of Village Mandoli is acquired vide Award No. 1956 contd. and the same is placed at the disposal of DDA U/s 22 (1) through notification No. F8 (49) 63/L7B dated 03.01.1968 and further transfer to Horticulture Department for greenery.RCA DJ No. 53/18
Abdul & Ors Vs. DDA & Ors. page 3 of 14 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
The land in question falls under DUSIB and the plaintiff's suit is not maintainable as the plaintiffs has not served the statutory notice U/s 53 B of DDA Act. Rest of the material contents of the plaint have been denied by the defendant.
(iv) During the pendency of the suit, DUSIB and EDMC were impleaded as defendant no. 2 and 3. Right to file WS on behalf of DUSIB/ defendant no. 2 was closed vide order dated 03.06.2014. No WS has been filed on behalf of EDMC.
(v) Vide order dated 27.10.2014 the following issues were framed:
i) Whether the plaintiff is entitled for decree of permanent injunction as claimed? OPP
ii) Whether the suit of the plaintiff is maintainable against the defendant no.1? OPD1
iii) Relief.
(vi) Vide order dated 08.11.2016 an additional issue was also framed as under: Whether the plaintiff is entitled for the relief of mandatory injunction against the defendant no.3 EDMC directing them to restore the possession of the suit premises to the plaintiff? OPP
3. The appellants have preferred the instant appeal on the ground that the impugned judgment and decree dated 28.04.2018 is not sustainable in law and facts and is passed without application of judicial mind. It is further contended that the impugned judgment and decree is not passed on the basis of the admitted and proved facts and the judgment suffers from illegality and infirmity. As mentioned, the Ld. Trial Court failed to appreciate the correct RCA DJ No. 53/18 Abdul & Ors Vs. DDA & Ors. page 4 of 14 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
facts of the case and relevant materials on record. It is claimed that suit property was alloted by DDA to the father of appellants vide allotment letter dt. 18.10.1976 and the appellants were dispossessed illegally by respondent No. 3 / EDMC on 06.01.2016. Ld. Counsel for appellants also argued that appellants were not granted opportunities to address the final arguments. This appeal is filed praying to set aside the impugned judgment and decree.
4. Notice of the appeal issued to the respondents. The respondents did not wish to file reply to the appeal and supported the impugned judgment and decree.
5. I have heard the Ld. Counsel for the appellants and respondents and perused the relevant materials available on record along with Trial Court Records. I have also considered the relevant provisions of law regarding grant of injunction.
6. To appreciate the rival contentions of the parties, it is necessary to refer relevant provisions of law regarding injunction i.e. Section 38 of Specific Relief Act, 1963 which is as below: Section 38. Perpetual injunction when granted (1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the Court shall be guided by the rules and provisions contained in Chapter II.
(3) When the defendant invade or threatens to invade the RCA DJ No. 53/18 Abdul & Ors Vs. DDA & Ors. page 5 of 14 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the inunction is necessary to prevent a multiplicity of judicial proceedings.
7. The injunction is a discretionary relief and its grant of refusal depends upon the circumstances and facts of a particular case. The discretion has to be reasonable guided by judicial principles and law. It must not be arbitrary, vague and fanciful. As held in JT 1994 (6) SC 588 , interest of right not shown to be in existence cannot be protected by injunction. Issuance of order of an injunction is absolutely discretionary and equitable relief. It is not mandatory that for mere asking such relief should be given. The interest or right not shown to be in existence cannot be protected by injunction.
8. Two elements have to be taken into consideration for granting a injunction. In the first place, the Court has to determine what acts are necessary in order to prevent a breach of obligation; in the second place the requisite acts must be such as the Court is capable of enforcing. Caution is required in the grant of preventive relief. The exercise of power to grant mandatory injunction must be attended with the greatest possible caution and is strictly confined to cases where the remedy of damage is inadequate for the purpose of justice and RCA DJ No. 53/18 Abdul & Ors Vs. DDA & Ors. page 6 of 14 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
the restoring of things to their former condition is the only remedy which will meet the requirements of the case. The court will not interfere except in cases where there are extreme serious damage caused which cannot be compensated:
C. Kunhammad v. C.H. Ahamad Haji A.I.R. 2001 KER. 101.
9. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for injunction, this suit is to be decided on the basis of preponderance of probabilities. As held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, "A civil case is decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, RCA DJ No. 53/18 Abdul & Ors Vs. DDA & Ors. page 7 of 14 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
10. Section 101 of the Evidence Act, 1872 defines " burden of proof" and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn. In view of this legal position of the Evidence Act, it is clear that it is for the appellants to prove that they have right, title or interest in the suit property.
11. As mentioned in the plaint itself, the plaintiffs / appellants are seeking relief of injunction. In view of the judgment report as 2008 VII AD SC 413 and relied by the Ld. Trial Court, the plaintiffs are under obligation to prove that RCA DJ No. 53/18 Abdul & Ors Vs. DDA & Ors. page 8 of 14 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
that they have right, title or interest in the suit property. Even otherwise, the onus to prove the issues remained upon the plaintiff. In view of the testimonies and documents on record, it is proved that the plaintiffs have failed to prove their title in view of the contentions in the pleadings. As per DDA, the area including the suit property has been acquired on 03.01.1968 which now falls under DUSIB. Admittedly, the suit property was alloted provisionally and appropriate legal proceedings were taken against the appellants for vacating the premises but no action was taken by the appellants. I have gone through the impugned judgment and decree wherein the MCD has taken the appropriate action regarding unauthorized construction and DDA has cancelled the provisional allotment. The Estate officer also issued the necessary orders vide Ex. PW 1/ D1 which was not challenged. As the plaintiffs have failed to prove any right, title or interest as contended in the pleadings, the Ld. Trial Court rightly dismissed the suit of the plaintiffs. This Court itself finds inconsonance with the findings of Ld. Trial Court regarding dismissal of the suit as plaintiffs failed to prove any interest in the suit property and there is no cause of action for filing of the same. It is reiterated that the plaintiffs are not entitled for the relief as prayed in the suit and accordingly the same was rightly dismissed by Ld. Trial Court.
12. From the materials on record, it is proved that the plaintiffs had no right, title or interest in the suit property. The injunction is a discretionary relief. As apparent from the records, the testimony of the PW was totally shattered during crossexamination and nothing was proved by the plaintiffs regarding right, title or interest in the suit property. The findings of the Ld. Trial Judge appears to be correct and sustainable in view of the records. The same does not warrant any RCA DJ No. 53/18 Abdul & Ors Vs. DDA & Ors. page 9 of 14 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
interference.
13. I have gone through the judgment reported as AIR 2008 SC 2033 wherein the scope of a suit for permanent injunction was examined by Hon'ble Supreme Court in detail and the position in regards to the suits for prohibitory injunction relating to immovable property is summarized as under:
(i) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor.
(ii) As a suit for injunction simplicitor is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of the title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
(iii) But a finding on title cannot be recorded in a suit for RCA DJ No. 53/18 Abdul & Ors Vs. DDA & Ors. page 10 of 14 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
injunction, unless there are necessary pleadings and appropriate issue regarding title ( either specific, or implied). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not investigate or examine orrender a finding on a wuestion of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
(iv) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straight forward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it RCA DJ No. 53/18 Abdul & Ors Vs. DDA & Ors. page 11 of 14 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case. It was further held while answering the scope of the suit for permanent injunction relating to immovable property, the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief are well settled. It is mentioned: 11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simplicitor will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in lawful possession is not entitled to an injunction against the rightful owner. 11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simplicitor, without claiming the relief of possession.
11.3. Where the plaintiff is in possession but his entitled to the property in dispute, or under a cloud, or where a defendant asserts a title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish RCA DJ No. 53/18 Abdul & Ors Vs. DDA & Ors. page 12 of 14 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
The ratio of the judgment is squarely applicable in the facts and circumstances of the case. This court does not find any illegality and infirmity in the impugned judgment and the facts are correctly examined to reach the conclusion which does not warrants for any interference.
14. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of "
proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title.
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus RCA DJ No. 53/18 Abdul & Ors Vs. DDA & Ors. page 13 of 14 Sh. G. N. Pandey, Additional District Judge (NE),Karkardooma Courts, Delhi.
the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this Court the plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiff had stood discharged.
The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
15. In view of the aforesaid discussions, Ld. Trial Court has examined the issues framed in the suit in proper perspective. Mere oral averments by the appellants are not sufficient for grant of relief. This court does not find any illegality or infirmity in the impugned judgment and decree dated 28.04.2018 which is well reasoned / correct appreciation of facts and in accordance with the provisions of law. The impugned judgment is therefore entitled to be upheld. There is no merit or substance in the appeal which is liable to be dismissed. The appeal is therefore dismissed with costs.
16. Decree sheet be drawn accordingly.
17. Trial Court record be sent to the concerned court along with copy of this judgment.
18. Appeal file be consigned to record room.
Digitally signed by GORAKH GORAKH NATH
PANDEY
Location: Court No.69,
Announced in open Court
on this 29th day of August 2018
NATH North East District,
Karkardooma Court,
PANDEY Delhi
Date: 2018.08.29
16:51:35 +0530
G. N. Pandey
Addl. District Judge (NE)
Karkardooma Courts, Delhi.
RCA DJ No. 53/18
Abdul & Ors Vs. DDA & Ors. page 14 of 14