Delhi District Court
Shri Jai Narain Khatri vs Rajinder Parsad on 18 March, 2014
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 181/2012
IN THE MATTER OF:
1. Shri Jai Narain Khatri
S/o Late Shri Rattan Singh
R/o H. No. 510, Rana Udyan,
Narela, Delhi40
2. Shri Kuldeep
S/o Late Shri Maha Singh
R/o Pannaudyan House No. 46, Narela, Delhi110040
3. Shri Satinder
4. Shri Sominder
5. Sh. Varinder
All sons of Late Shri Nihal Singh
All R/o Pannaudyan, Narela, Delhi110040
6. Shri. Jagdish
7. Shri. Jai Dev
8. Shri Ram Kumar
9. Shri Ram Kumar
all sons of Late Shri Ratten Singh
All R/o J.K. Faram House, Narela, Delhi110040
...Plaintiffs
Versus
1. Rajinder Parsad
( R.P. Singhal),
S/o Shri Deep Chand
R/o Alipur Road,
Near Dubey Nurshing Home,
Suit No. 181/2012 Page No. 1 of 17
Narela, Delhi110040
2. Laxman Dass
S/o Shri Panna Lal
R/o At the back of Bank of India, Narela,
on Main Narela Bawana Road,
Opp. MCD Primary School, Narela, Delhi110040
3. Jagat Ram
S/o Shri Bhim Singh
Office at Bawana Road,
Near Railway Crossing,
At Khatri Service Station,
Narela, Delhi110040
4. Raj Singh son of Sh. Chatter Singh
H. No. 1981, Opp. Jat Dharamshala,
Railway Road, Delhi ( Narela)
5. Ishwar Dutt
S/o Sh. Chotey Lal
R/o through Rajinder Parsad Singhal
Alipur Road, Near Dubey Nurshing Home,
Narela, Delhi110040
6. Rajinder Parsad son of Sh. Munshi Ram
R/o through Rajinder Parsad Singhal
Alipur Road, Near Dubey Nurshing Home,
Narela, Delhi110040. ...Defendants
Date of Institution: 01.11.2004
Date of Reserving for Judgment: 14.03.14
Date of Judgment : 18.03.14
SUIT FOR DECLARATION AND MANDATORY INJUNCTION AND
PERMANENT INJUNCTION
JUDGMENT: Suit No. 181/2012 Page No. 2 of 17
1. Vide this Judgment, I shall decide a suit for declaration and mandatory injunction and permanent injunction filed by the plaintiff.
2. The brief facts of the case as per the plaintiff is that the plaintiff alongwith other coowner is the coowner of an agriculture land known as Shamlat Deh land falls in Khasra No. 15/20/1(34) out of Khevat Jamabandi No. 33, Min/43min bearing its Khatauni No. 58, situated in the revenue estate of village Bhorgarh, Delhi40 and the plaintiffs along with other coowner are in physical, cultivatory possession on the said land and having their settled possession. It is further submitted that the defendant No. 1 to 6 in collusion with the revenue staff illegally and unlawfully got their name in the revenue record as cultivators. It is further submitted that all the defendants are trying to change the user of land for commercial purpose and if the defendant succeed in their illegal means the land of the plaintiff shall be vested in Govt. on the basis of their unauthorized construction. It is further submitted that the plaintiff and other coowner never sold the said land in favour of the defendant. On 20102004 the defendant putting building material for construction failed to show any document in their favour. It is further submitted that all the defendant are adamant to dispossesses the plaintiff and other coowner from the suit land and threatened to dispossess illegally and unlawfully by show of Suit No. 181/2012 Page No. 3 of 17 force at their command to raise the construction jointly in near future forcibly without any right, title or interest in their favour. It is further submitted that the plaintiff and other coowner approached the police for the same but the police did not take any action saying that this is a civil nature case. It is further submitted that on 27102004 at about 11 PM all the defendants started raising construction illegally and unlawfully without any right, title or interest and the plaintiff and other coowners reached at the spot at about 10 AM on 28102004 and came to know that some minor construction has been raised by the defendants but the defendant failed to dispossess the plaintiff because of timely intervention of the plaintiff with coowner and seasoned person of the locality but the defendants threatened that they will come again for more labourers and with more force and shall complete the construction work. It is further submitted that on 29102004 at about 9 AM all the defendants again reached on the sot with labourers and goonda elements of the locality but due to hot protest and intervention of the plaintiff and other coowner they could not succeed and they further threatened to complete their construction. Hence the present suit is filed.
3. On the other hand the defendants in their written statement contended that the present suit has been filed by the plaintiff to Suit No. 181/2012 Page No. 4 of 17 extort money from the defendants. The plaintiff has no right, title or interest in the land in question. It is further submitted that the plaintiff had filed number of false cases and complaints against the innocent villagers including some of the defendants herein in order to extort money from them. some of suit have been withdrawn and some are still pending. It is further submitted that the plaintiff has no locus standi to file the present suit. It is further submitted that even as per list of coowners the name of the father of the plaintiff is mentioned at item No. 7 and less then 9 Sq. Yds. land comes in the share of his father. It is further submitted that the father of the plaintiff has died leaving behind the plaintiff and other legal heirs and their name has not been mutated in the revenue record nor the plaintiff has disclosed the name of legal heirs. It is further submitted that even as per the alleged false list of coowner less then 1 Sq. Yds. land comes in the share of the plaintiff. It is further submitted that the suit of the plaintiff is barred by time. The suit is barred under Specific Relief Act as suit for declaration and permanent injunction without seeking relief of possession is not maintainable. This court has no jurisdiction to entertain the present suit . It is further contended that the suit is bad for non joinder as well as misjoinder of the parties. It is further submitted that the defendant No. 1 ,2 & 6 have already sold their share of Suit No. 181/2012 Page No. 5 of 17 plot to the intending purchase namely Jagat Ram, Ashu, Abdul Kareem, Pawan Kumar, Ramesh Kumar , Hukam Kaur, Hari Ram and other purchasers who have been in use and occupation of their respectively portion of the houses/plots for the last many years and they have not been impleaded as a party . It is further submitted there is no person as Ishwar Dutt son of Sh. Chotey Lal in the village and as such he has been wrongly impleaded. It is further submitted that there is no cause of action in favour of the plaintiff and against the defendants. It is further submitted that the suit as well as application and affidavit was got typed on 2610 2004 but the cause of action has been alleged in the plaint on 27 102004 and 29102004. Further the defendants denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
4. The plaintiff has filed replication to the written statement filed by the defendant. In his replication the plaintiff has reaffirmed the contents in the plaint and denied all the allegation made by the defendant in his written statement and further submitted that the suit of the plaintiff be decreed .
5. Vide order dt. 21.05.2005, following issues were framed which are as under:
i) Whether the plaintiff has locus standi to file the present suit? Suit No. 181/2012 Page No. 6 of 17 OPP
ii) Whether the suit is barred by time? OPD
iii) Whether this court has no jurisdiction to entertain the present suit? OPD
iv) Whether the suit is bad for nonjoinder and misjoinder of parties/ OPD
v) Whether the suit is not maintainable in view of PO No. 10? OPD
vi) Whether the plaintiff is entitled to relief of declaration ? OPP
vii) Whether the plaintiff is entitled to permanent injunction as prayed ? OPP
viii) Whether the plaintiff is entitled to mandatory injunction as prayed ? OPP
ix) Relief.
6. To prove his case plaintiffs have examined Sh. Ghanshyam Sharma, Halqa Patwari, village Bhorgarh, Delhi as PW1, who brought the summoned record i.e Ex. PW1/1 i.e. Jamabandi for the year 200001.
7. Further the plaintiffs have examined Sh. Jai Narain as PW2 who has filed his evidence by way of affidavit Ex. PW2/2 . In his affidavit the PW1 has reiterated the facts mentioned in the plaint. The PW1 was also crossexamined by the Ld. counsel for the defendant.
Suit No. 181/2012 Page No. 7 of 17
8. On the other hand the defendants have examined Sh. Jagat Ram, Rajinder Prasad, Laxman Dass, Sh. Raj Singh & Sh. Rajinder Bansal as DW1 to DW5 who have filed their evidence by way of affidavit Ex. DW1/A, DW2/A, DW3/A, DW4/A and DW5/A. In their evidence the DW1to DW5 have reiterated the facts in their written statement and relied upon the document Ex. PW1/1 and PW1/2 colly which is jamabandi for the year 200001 and Khasra Girdawari for the year 1982 to 1986, 19901991, 2000 to 2003, 200506 respectively. All the defendant witnesses were also crossexamined by the Ld. counsel for the plaintiff.
9. I have heard the counsel for both the parties and have gone through the record carefully.
10. My issue wise finding is as under: Firstly I shall decide issue No. 2.
11. Issue No. 2 Whether the suit is barred by time? OPD This is a suit for declaration and permanent and mandatory injunction. As per Article 58 of the schedule to The Limitation Act, the limitation period for filing a suit for declaration is 3 years from the date of accrual of right to sue. The present suit has been filed by the plaintiff on 1/11/2004. The declaration is sought qua the jamabandi of the year 20002001. Thus, the suit qua the relief of declaration is within the period of limitation. As regards the relief of Suit No. 181/2012 Page No. 8 of 17 mandatory and permanent injunction, the period of limitation for the same as per the Article 113 is three years from the date when the right to sue accrues and as per the plaint the right to sue accrued on 27/10/2004 onwards. Thus, the suit is within the period of limitation qua the relief of mandatory and permanent injunction. Thus, this issue is decided accordingly in favour of the plaintiff and against the defendant.
12. Issue No. 3 Whether this court has no jurisdiction to entertain the present suit? OPD The contention of the counsel for the defendant in this regard is that the present suit is barred under the provisions of the Delhi Land Reforms Act. However, PW1 Sh. Ghanshyam Sharma, halka patwari of village Bhorgarh stated that the land in question i.e. Khasra no. 15/20/1 measuring 3 bighas 4 biswas is situated at village Bhorgarh and is governed by Punjab Tenancy Act. However, the counsel for the defendant submitted that the Punjab Tenancy Act has been repealed by S. 2 of the Delhi land Reforms Act. At this juncture it is worthwhile to reproduce S. 2 of the DLR Act which is as under:
2. Repeal (1) The following Act, in so far as they apply to areas to which this Act extends, are hereby repealed--
(i) The Punjab tenancy Act, 1887, as modified by Suit No. 181/2012 Page No. 9 of 17 Punjab Act No. 9 of 1939.
(ii) The Agra Tenancy Act 1901
(iii)The Punjab Tenants (Security of Tenure) Act, 1950,
(iv)The Punjab Land Revenue Act, 1887, in so far as its provisions are inconsistent with this Act,
(v) The U.P Land Revenue Act, 1901, in so far as its provisions are inconsistent with this Act, and
(vi) So much of any other law or of any rule having the force of law for the time being in force as is inconsistent with the provisions of this Act.
13.However, as per the questions put in the crossexamination by the plaintiff to the defendant witnesses, no agricultural activity is going on in the suit land and construction over certain areas have also been made. Thus, clearly, only the land which is covered by the Delhi Land Reforms Act, qua it The Punjab tenancy Act, 1887 has been repealed. However, it has not been proved by the defendant that the suit land is covered by the Delhi Land Reforms Act. However, as per the case of the defendant, no agricultural activity is being carried out over the suit land and thus the suit land is not covered within the definition of 'land' under the Delhi Land Reforms Act. Thus, this issue is decided accordingly in favour of the plaintiff and against the defendant.
14.Issue No. 4 Whether the suit is bad for nonjoinder and mis joinder of parties/ OPD The case of the defendants is that they have sold the suit land to Suit No. 181/2012 Page No. 10 of 17 subsequent purchasers, who have not been made a party herein, thus, the suit is bad for nonjoinder of necessary party. However, no document of sale of the suit land by the defendants have been placed on record. Thus, this issue is decided accordingly in favour of the plaintiff and against the defendant.
15.Issue No. 1 Whether the plaintiff has locus standi to file the present suit? OPP Issue no. 5 Whether the suit is not maintainable in view of PO No. 10? OPD Issue no. 6 Whether the plaintiff is entitled to relief of declaration ? OPP Issue no. 7 Whether the plaintiff is entitled to permanent injunction as prayed ? OPP Issue No. 8 Whether the plaintiff is entitled to mandatory injunction as prayed ? OPP PW1 Sh. Ghanshyam Sharma, halka patwari of village Bhorgarh stated that the land in question i.e. Khasra no. 15/20/1 measuring 3 bighas 4 biswas is situated at village Bhorgarh and is governed by Punjab Tenancy Act. He proved the Jamabandi of the year 2000/2001 as PW1/1. He stated that as per record Sh. Jai Narain Khatri is not having any share and his name is not mutated in the revenue record. He stated that neither the plaintiff nor his father Suit No. 181/2012 Page No. 11 of 17 Sh. Ratan Singh have any ownership and share and possession in Khasra no. 15/20/1 measuring 3 bighas 4 biswas. He stated that the document mark A is not as per the revenue record and also does not bear the khasra number over it. As per his record there is no agricultural activity in the land in Khasra no. 15/20/1 measuring 3 bighas 4 biswas. Some land is built up and some is vacant and some out of the built up and vacant is acquired by the government.
16.PW2 Jai Narain Khatri deposed that it is wrong to suggest that he has no share in the shamlat land of village Bhorgarh. He stated that he cannot tell whether the land in question is used for agricultural purpose or not. He denied that the defendants are the owners and in physical possession of the land in dispute.
17.DW1 Jagat Ram deposed that it is wrong to suggest that he had forcibly possessed the land in question on 29/10/2004. He denied that he has no right, title or interest in the land in question. He purchased the share of defendant nos. 1, 2 & 6.
18.DW2 Sh. Rajinder Prasad stated that he had right, title and interest in the suit land and had transferred it to Sh. Jagat Ram. He denied that he and other defendants have forcibly and illegally converted and are using the land for commercial purpose.
19.DW3 Laxman Dass deposed that it is wrong to suggest that he has illlegally and unlawfully carried out the construction over the Suit No. 181/2012 Page No. 12 of 17 land in dispute. He stated that on the spot he has given constructed room of his portion to Sh. Jagat Ram about 67 years back.
20.DW4 Sh. Raj Singh stated that the total shamlat land has been partitioned. He denied that he has forcibly occupied his portion of land which belongs to other cosharers.
21.DW5 Rajinder Bansal deposed that it is wrong to suggest that he has forcibly occupied his portion of the suit land.
22.Before delving on the controversy as regards issue no. 1, it would be worthwhile to reproduce Section 34 of the Specific Relief Act, which is as under:
"Section 34 Discretion of court as to declaration of status or right :
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
Explanation.A trustee of property is a "person interested to deny"
a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee." From the aforesaid, it is clear that one of the ingredients which the plaintiff has to satisfy in order to get the relief of Suit No. 181/2012 Page No. 13 of 17 declaration is that the plaintiff has to show that the plaintiff is entitled to any legal character, or to any right as to any property.
23.As per the statement of the PW 1 Sh. Ghanshyam Sharma, halka patwari of village Bhorgarh the land in question i.e. Khasra no. 15/20/1 measuring 3 bighas 4 biswas is the land of Narela villagers/Bhorgarh villagers as per the revenue record. The plaintiffs have not brought on record any document to show that they are the villagers of Narela village/Bhorgarh village. The document Mark A has not even been proved as per law by the plaintiffs. Thus, clearly, the plaintiffs have failed to show there locus standi qua the suit land.
24.Further, the counsel for the plaintiffs has put a common question to all the witnesses of the defendants that they have illegally and unlawfully carried out the construction over the land in dispute and have forcibly entered in the suit land. Thus, clearly, the plaintiffs are not even in the possession of the suit property. But the relief of possession has not been claimed in the instant suit. Thus, the present suit is barred under S. 34 of the Specific Relief Act. Also, the suit is also not maintainable due to the findings in the decision in Anathula Sudhakar v. P. Buchi ReddyAIR 2008 SUPREME COURT 2033 , which is as under:
Suit No. 181/2012 Page No. 14 of 17
The position in regard to suits for prohibitory injunction relating to immovable property, is summarised as under :
(a) 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 plaintiffs lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter 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 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.
(c) But a finding on title cannot be recorded in a suit for 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 or render a finding on a question 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.
(d)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 Suit No. 181/2012 Page No. 15 of 17 discretion carefully to identify cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.
Thus, without seeking the relief of possession, the present suit is not maintainable. Thus, issue nos. 1 and 5 are decided in afvour of the defendants and against the plaintiffs.
25.Further, in view of the aforesaid discussion, since the plaintiffs have failed to show their locus standi and in the absence of the prayer for relief of possession of the suit land the plaintiffs are not entitled to the reliefs of declaration, permanent and mandatory injunction. It has been held in Executive Committee of Vaish Degree College, Shamli v. Lakshmi NarainAIR 1976 SUPREME COURT 888 that the relief of declaration and injunction under the provisions of the Specific Relief Act is purely discretionary and the plaintiff cannot claim it as right. The relief has to be granted by the Court according to sound legal principles and ex debito justitiae. The Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. In these circumstances, while exercising its discretionary powers the Court must keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object Suit No. 181/2012 Page No. 16 of 17 which can be administered in vacuum. Clearly, if a party suppresses material facts from the court then the relief of injunction and declaration cannot be granted to that party.
In view of the foregoing discussions these issues are accordingly decided in favour of the defendants and against the plaintiffs.
26.Relief:
In view of the foregoing discussion, the plaintiff has failed to prove their case and thus the suit is hereby dismissed. There are no orders as to costs. Decree sheet be prepared accordingly. File be consigned to the record room after necessary compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 18032014. Civil Judge/Central05 Delhi Suit No. 181/2012 Page No. 17 of 17