Delhi District Court
Mohd Arif vs Municipal Corporation Of Delhi on 11 September, 2019
In the Court of Shri Ankit Singla : Additional Senior
Civil Judge of Central District at Tis Hazari Courts, Delhi
CS no. 1480/16
In the matter of :-
Mohd Arif
S/o Sh. Mohd Yamin
R/o -1247, Pahari Imli,
Churiwalan, Jama Masjid.
Delhi. ........Appellant
VERSUS
Municipal Corporation of Delhi.
Dr. Shyam Prasad Mukherjee Civic Centre,
Minto Road, New Delhi
(service to be effected through its
Commissioner) .....Respon
dent
Date of institution : 05.04.2011
Reserved for Judgment : 16.05.2019
Date of decision : 11.09.2019
Decision : DISMISSED.
JUDGMENT
1. Vide this judgment, I shall decide the suit of plaintiff for recovery of possession of suit property bearing no. 1247, Pahari Imli, Churiwalan, Jama Masjid, Delhi.
2. The plaintiff had filed the present suit under Section 6 of Specific Relief Act, but on 23.09.2011, at request of plaintiff, the suit was treated as ordinary suit, instead of suit under Section 6 of Specific Relief Act.
CS no. 1480/16 Page 1 of 123. The plaintiff has filed the present suit alleging that he was in possession of suit property. He has averred in the plaint that he used to pay the house tax and electricity bills which are proof of his possession, but on 16.03.2011, officials of defendant dispossessed the plaintiff from the suit property illegally. Accordingly, the plaintiff prayed for decree of possession with cost. The plaintiff has valued his suit for purpose of court fees and jurisdiction at Rs. 1 lakh and paid court fees accordingly.
4. The defendant contested the present suit by filing written statement of its defence, wherein, preliminary objection has been taken to the effect that the suit of the plaintiff is barred under Section 477/478 of DMC Act for want of notice upon the defendant prior to the institution of the suit.
5. In reply on merits, it is contended that the suit property was allotted to Vishember, S/o Kisha, Safai Karamchari, circle no. 73, W.e.f 01.01.1990 Vide office order no. 1298/SS/CSE/CZ dated 01.01.1990; that the said Safai Karamchari absented himself from duty since 03.07.2010 and he could not be traced from the allotted accommodation i.e. the suit property and when the said Safai Karamchari left the suit property without any information to the Municipal Corporation of Delhi, the plaintiff taking its advantage illegally occupied the suit property; that the said Safai Karamchari has been placed under suspension w.e.f. 03.08.2010 and major penalty proceedings has been initiated against him vide office CS no. 1480/16 Page 2 of 12 order no. 575/SS/DEMS/CZ/10 dated 06.08.2010; that the plaintiff was an encroacher upon the government property as such he was removed under Section 321/322 of DMC Act; that the plaintiff has no right, title and interest in the suit property.
6. The plaintiff filed replication to the WS of defendant and traversed all the contentions raised in the written statement and reaffirmed the allegations made in the plaint.
7. After conversion of suit into an ordinary suit, on 16.11.2011 this court, framed following issues.
a. Whether the suit of the plaintiff is barred u/s 477/478 of DMC Act? OPD b. Whether the plaintiff has not valued his suit for the purpose of court fees and jurisdiction? OPD c. Whether the plaintiff is entitled for the relief of possession, as prayed for ?OPP d. Relief.
8. Thereafter, matter was fixed for evidence.
9. The plaintiff got examined himself as PW-1. During his evidence, the plaintiff also produced the documents Ex. PW-1/1 to Ex. PW-1/4(OSR) which are- site plan is Ex. PW-1/1, CS no. 1480/16 Page 3 of 12 Copy of ration card is Ex. PW-1/2, Copy of house tax receipt is Ex. PW-1/3, Electricity Bill is Ex. PW-1/4 respectively.
10. The defendant examined only one witness. DW-1 is Sh. Mohan Singh, Sanitation Superintendent, North Delhi Municipal Corporation, City Zone, Mulg Car Parking, Asaf Ali Road, New Delhi-110002. During his evidence, DW-1 also produced the documents Ex. DW-1/1 and Ex. DW-1/2 which are Office order dated 01.01.1990 and 06.08.2010 respectively.
11. Thereafter, this court vide judgment dated 14.03.2013 dismissed the suit by holding that for getting a relief u/s 5 of the SPA, the plaintiff had to plead and prove his title for possession of suit property.
12. The plaintiff challenged the judgment passed by this court by preferring an appeal. The Appellate court vide its judgment dated 24.08.2015 set aside the judgment of this court by holding that this court has proceeded on the assumption that a suit for possession u/s 5 of SPA can be filed on basis of title only. The Appellate Court referred to article Section 64 of 67 of Schedule to Limitation Act. Ld. Appellate court held that under Article 64 of Limitation Act, a regular suit for possession can be maintained and succeeded by plaintiff by simply proving his previous settled possession. In such a suit, plaintiff is not required to prove title. While setting aside, the Ld. Appellate Court directed this court as under:-
CS no. 1480/16 Page 4 of 12(A) Specific findings be given on issue no. 1 as to whether the suit is barred under Section 477/478 of DMC Act and if no such notice has been given, what would be the effect of the same.
(B) In view of the statement of PW-1, in cross examination, it should be adjudicated as to what should be the value of the suit for the purpose of the court fee and jurisdiction. If statement of PW-1 is believed, how much court fee would be liable to be paid further by the plaintiff. Secondly, in such situation, whether the Civil Judge will have pecuniary jurisdiction to try the suit. In this manner, issue no. 2 should be disposed of. (C) Issue no. 3 should be decided considering the matter to be a suit under Article 64 of Schedule to the limitation Act, 1963 r/w Section 5 of Specific relief Act.
13. Now, in light of aforesaid factual matrix and the directions of Ld. Appellate court, I shall proceed to decide the issues. My issue wise finding is as under:-
ISSUE NO. 1 - Whether the suit of the plaintiff is barred u/s 477/478 of DMC Act? OPD
14. The onus to prove this issue is upon the defendant. This issue was framed as preliminary objection was taken by defendant that since notice u/s 477 and 478 of DMC Act is mandatory and no notice u/s 477 and 478 of DMC Act has been given, this suit is barred by Section 477 and 478 of DMC Act. Per contra, it is contended by the counsel for the CS no. 1480/16 Page 5 of 12 plaintiffs that the notice under Section 477/478 of the DMC Act is mandatory only when a suit is filed to challenge any act done by north DMC or its officials under DMC Act. it is submitted that since alleged act of dispossession of the plaintiff of the suit property cannot be called to be taken under DMC Act, therefore, suit is maintainable without giving notice u/s 477/478 of DMC Act.
15. It cannot be disputed that prior notice u/s 477/478 of DMC Act is mandatory only if suit has to be filed to challenge an act done under DMC Act. In the present case, plaintiff has filed the present suit on basis of prior possession claiming forcible dispossession of suit property by defendants. The defendant has averred that under Section 321 and 322 of DMC Act, the North DMC has power to remove the illegal encroachment from public place. Admittedly, the suit property is a house and not a public place. Therefore, the contention of North DMC that it had power to take action against plaintiff by virtue of Section 321 and 322 is rejected and its action of forcibly dispossessing the plaintiff from the suit property cannot be said to be taken under DMC Act. Accordingly, this court is of the view that notice under Section 477/478 of DMC Act was not mandatory. Apart from above, the preliminary objection of defendant is also liable to be rejected on the ground that if the suit is contested to the hilt and the defendant had sufficient opportunity, to redress the grievance of the plaintiff, then rightful claim of the plaintiff cannot be taken away merely, because of non service of notice under Section 477/478 of the DMC Act. In this regard, reliance is CS no. 1480/16 Page 6 of 12 placed on the judgment titled as "Shri Phool Singh v. North DMC" RSA No.264/13 dated 26.07.2016. In this judgment, Hon'ble High Court of Delhi was pleased to hold that if a case is contested to the hilt, then the requirement of giving of prior notice is taken to be as waived and the suit cannot be dismissed merely on account of the fact that prior statutory notice has not been sent. Accordingly, in view of the aforesaid discussion, the present issue is decided in favour of the plaintiff.
ISSUE NO. 2 :- Whether the plaintiff has not valued his suit for the purpose of court fees and jurisdiction? OPD.
16. In order to decide this issue, the appellate court had directed this court to examine and adjudicate what should be the value of the suit for purpose of court fees and jurisdiction in view of statement of PW-1 and if statement of PW-1 is to be believed, how much court fees would be liable to be paid further by the plaintiff. Secondly, this court shall also decide in such situation whether this court has pecuniary jurisdiction to try this suit.
17. Although, the onus to prove this issue has been fixed upon defendant, however, the primary burden to prove that suit has been properly valued for purpose of court fees and jurisdiction is always upon the plaintiff. As per Section 7
(e) of Court Fees Act, 1870, in a suit for possession of house, the plaintiff is required to value the suit for the purpose of CS no. 1480/16 Page 7 of 12 court fee and jurisdiction according to the market value of the house. As per plaintiff, he was residing in the house, therefore, the suit property is a house, so the plaintiff is liable to pay advoleram court fees on the market value of the suit property.
18. In the present case, the plaintiff has valued his suit for purpose of court fees and jurisdiction to sum of Rs. 1 lakh. However, during cross examination, he categorically stated that he purchased the suit property for Rs. 15 Lakhs. The plaintiff in his cross examination stated that he purchased the suit property in the year 2001. The present suit has been filed on 05.04.2011. The primary onus was upon the plaintiff to show that after purchasing of the suit property by him, the value of suit property fell down and same was Rs. 1 Lakh on the date of filing of the suit. However, no such evidence has been filed by the plaintiff. There is difference of about Rs. 14 Lakhs in the amount on which the plaintiff purchased the suit property and for which he has valued the suit property. The plaintiff has not only failed to lead any evidence but also failed to tell the circumstances which has brought down the market value of the suit property from Rs. 15 Lakhs to Rs. 1 Lakh. Taking judicial notice of the recent increase in market value of immovable properties and in absence of mentioning of special circumstances or any evidence to show that value of suit property has come down, it can be safetly said that in all preponderance of probabilities, the market value of the suit property must be at least Rs. 15 Lakh on date of filing of the suit. Therefore, in absence of any evidence to show that after CS no. 1480/16 Page 8 of 12 purchasing of the suit property, the market value of the suit property fell down to Rs. 1 Lakh, on the date of filing of the suit, it is held on basis of preponderance of probabilities that the market value of the suit property must be Rs. 15 Lakh on date of filing of the suit. Accordingly, it is held that the plaintiff has wrongly valued the suit for the purpose of court fees and jurisdiction for sum of Rs. 1 lakh. This court has pecuniary jurisdiction to try this suit of value upto Rs. 3 lakh only. Since, the market value of the suit property is held to be more than Rs. 3 lakh, this court has no hesitation to hold that the suit is beyond pecuniary jurisdiction of this court. Accordingly, this issue is decided against the plaintiff and in favour of defendant and it is held that plaintiff is liable to pay advoleram court fees on amount of Rs. 15 Lakh.
ISSUE NO. 3 Whether the plaintiff is entitled for the relief of possession, as prayed for ?OPP
19. Ld. Appellate court directed this court to decide issue no. 3 by considering the suit under Article 64 of the Schedule to the Limitation Act, R/w Section 5 of SPA. Article 64 of Schedule of Limitation Act deals with a suit for possession on basis of prior possession. In order to decide the entitlement of the plaintiff for recovery of possession of an immovable property on basis of prior possession, the court is not required to look into the title of the plaintiff, if plaintiff is able to show his prior possession and the fact that he has been illegally dispossessed from the suit property, then irrespective of the fact that whether plaintiff has any CS no. 1480/16 Page 9 of 12 ownership title or not, the plaintiff would be entitle to a decree of possession.
20. In the present case, it is admitted fact that plaintiff was in possession of the suit property and he was dispossessed by the defendant. The case of the defendant is that it was well within its right to dispossess the plaintiff by use of force by virtue of Section 321 and 322 of DMC Act. It is the case of defendant that plaintiff has no right, title or interest in the suit property and he was merely and encroacher upon the govt land, therefore, by exercising power u/s 321 and 322 of DMC Act, the plaintiff was dispossessed from the suit property. Since, the defendant has defended its action u/s 321 and 322 of DMC Act, it would be relevant to reproduced both these sections. Section 321 and 322 are accordingly reproduce as under :-
321:- Prohibition of deposit etc,. Of thing in streets;- (1) no person shall, except with the permission of the Commissioner and on payment of such fee as he in each case thinks fit, place or deposit upon any street, or upon any open channel, drain or well in any street or upon any public place any stall, chair, bench, box, Ladder, Bale or other thing whatsoever as to form an obstruction thereto or encroachment thereon.
(2) Nothing in sub-Section (1) applies to building materials.
322. Power to remove anything deposited or exposed for sale in contravention of this Act- The Commissioner may, without notice, cause to be removed-
CS no. 1480/16 Page 10 of 12(a) any stall, chair, bench, box, ladder, bale or other thing whatsoever, placed, deposited, projected, attached or suspended in, upon, from or to any place in contravention of this Act;
(b) any article whatsoever hawked or exposed for sale on any public street or in other public place in contravention of this Act and any Vehicle, package, box or any other thing in or on which such article is placed.
21. The bare language of Section 321 of DMC Act shows that the power of Commissioner is to get removed any stall, chair, bench, box, ladder, bale or other thing placed, deposited etc on any place in contravention of this Act. These provisions cannot be utilized by commissioner or his officials for getting back possession of every immovable property. Although, the defence of defendant can be rejected merely on the interpretation of Section 321 and 322 of DMC Act that said provisions does not empower commissioner to take back possession of a house, even if, same is government property, however, this court has further observed that the defendant has not placed on record any title/ownership document to show that suit property is a government property or a property of north DMC. Accordingly, this court is of the view that suit of plaintiff for possession is maintainable under Article 64 r/w Section 5 of Specific Relief Act. Although, plaintiff is able to prove his entitlement for possession on basis of prior possession, but, the relief of possession cannot be granted to the plaintiff as the market value of the suit property has been held to be more than 3 Lakh and the suit is already held to be CS no. 1480/16 Page 11 of 12 beyond pecuniary jurisdiction of this court. Accordingly, in view of fact that suit is beyond pecuniary jurisdiction of this court, the relief of possession is declined and suit is dismissed with cost. Decree sheet be prepared accordingly.
File be consigned to record room.
ANKIT Digitally signed by
ANKIT SINGLA
Announced in the Open Court SINGLA Date: 2019.09.18
13:12:24 +0530
on 11.09.2019 (Ankit Singla)
Additional Senior Civil Judge
Central District: Tis Hazari Courts: Delhi
CS no. 1480/16 Page 12 of 12