Delhi District Court
S. Raghbir Singh (Since Deceased) vs Sh. Laxman Das Aggarwal Dharmarath ... on 6 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
S648/09/94
1. S. Raghbir Singh (Since deceased)
1A. Smt. Gurcharan Kaur
W/o late Sardar Raghbir Singh
R/o 2282, Hudson Line, Kingsway Camp,
Delhi.
2. Sh. Loveleen Singh
S/o late Sardar Raghbir Singh
R/o 2282, Hudson Line, Kingsway Camp,
Delhi.
3. Smt. Virender Kaur,
W/o Sh. H.S. Bhatia
R/o H.No.120, Old Gupta Colony,
Delhi9.
4. Smt. Gurmeet Kaur,
W/o Sh. R.S. Bhatia
R/o Flat No.32, Karnal Singh Stadium,
Railway Colony, Pahar Ganj,
Delhi.
5. Smt. Parminder Kaur
W/o Sh. Manjit Singh Bhatia
R/o H16, Vijay Nagar,
Delhi9.
6. Smt. Sukhbir Kaur
W/o Sh. B.S. Khurana
R/o Main Cloth Market, Karol Bagh,
Delhi.
7. Sh. Devender Pal Singh
S/o late S. Raghbir Singh
R/o H.No.81, Bindravan Garden,
Sahibabad, UP. .....Plaintiffs
Versus
1. Sh. Laxman Das Aggarwal Dharmarath Trust
431/64/2, Kewal Park Extn., Azad Pur,
Delhi
Through its Trustee Sh. Devender Nath Aggarwal
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI
2. Sh. Devender Nath Aggarwal,
S/o Sh. Roshan Lal Aggarwal
3. Sh. Roshan Lal Aggarwal
S/o not known.
Both At:
R/o 431/64/2, Kewal Park Extn.,
Azad pur, Delhi.
And Second Address:
6/14, Roop Nagar, Delhi.
4. Municipal Corporation of Delhi,
Through its Commissioner,
Town Hall, Chandni Chowk,
Delhi110006. .....Defendants
Date of Institution of the Suit : 29.11.1994
Date of Reserve for Judgment : 23.01.2010
Date of final Judgment : 06.02.2010
JUDGMENT
1. Present is a suit seeking relief of Permanent Injunction on the averments that the deceased plaintiff was the owner of property bearing No.14 and 15, Kewal Park Extn., Azad Pur, Delhi and on the back side of this property there is a land belonging to defendant No.1 Trust bearing Khasra NO.431/64/2 and the same has been shown in Green in the site plan annexed. It was further stated that the Trust defendant No.1 was constituted for charitable purposes, yet defendant No. 2 & 3 its Trustees are doing all type of IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI illegal activities like storing huge quantity of chemicals in the property and further the charitable society has been converted into a big commercial complex and now defendants No.1 & 2 to take maximum advantage of their property shown Yellow and Green in the site plan have encroached upon the road from pointA to B as per site plan about two years back. It is stated that plaintiff alongwith residents of the locality were using this portion shown from pointA to B and the encroachment was once removed by MCD yet on the morning of 26.11.1994 defendants No. 1 to 3 again tried to encroach upon this portion shown in Blue from pointA to B and as such by way of this suit it has been prayed that defendants No. 1 to 3 be restrained from encroaching upon the public street shown in Blue lines from pointA to B and should also be restrained from storing the stock of chemicals in their property bearing No. 431/64/2, Kewal Park, Azad Pur, Delhi.
2. In the written statement filed by defendants No. 1, 2 & 3 separately, it was stated that the suit is bad for misjoinder of parties as all the trustees of the Trust have not been made a party and further suit is not maintainable in view of section 91 of th CPC as in case of public nuisance, it is more than one person who is required to file the case. Otherwise, it is stated that there is no cause of action in favour of the plaintiff since the alleged way or street is a part and parcel of property defendant No.1 falling in Khasra No.431/64/2 and plaintiff has no right, title or interest in this property and as such has no locusstandi to file this case. It was stated that since the answering defendants are the owners of the entire property of this khasra, there is no IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI way in between the portion shown in Green and Yellow as alleged and further it was stated that plaintiff himself is doing illegal activity of running a Guest House in his premises without any license and on the reasons of equity, the suit is liable to be rejected on this ground alone.
3. In the written statement filed by defendant No. 2 & 3, it was also stated that Trust is running a temple and free Ayurvedic Dispensary on the land and an approximate area of 15' X 80' is the street left by the Trust for itself and is not public street as alleged and further no illegal activity is being carried out as alleged in the plaint and defendants from time to time have applied for the necessary licenses for storage of articles in the premises and the suit should be dismissed without any cause of action.
4. In the written statement filed by defendant No.4 MCD, it was claimed that the suit is bad for a notice u/s 477/478 of DMC Act and further since no relief is claimed against MCD in this suit, it should be dismissed. It was also stated that the encroachment made at the site in question was removed by the MCD in Dec.'94 and as on date there is no such encroachment and further licences in respect of the storage were applied which was considered and some of them were rejected as were found not covered under the policy and as such the suit is without any cause of action.
5. On the pleadings of the parties following issues were framed by my Ld. Predecessors on 10.02.2003:
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI
1. Whether the plaintiff has a locusstandi to file the suit? OPP
2. Whether the suit is bad for misjoinder of the parties? OPD1 to D3
3. Whether the suit is barred u/s 477 & 478 of DMC Act? OPD4
4. Whether there exists no cause of action available to the plaintiff in view of the preliminary objection No.3 of the written statement of defendant No.4? OPD4.
5. Whether the plaintiff is entitled to a decree of Permanent injunction as prayed for? OPP
6. Relief.
6. My findings on the issues are as under:
ISSUE NO.1:
The onus of proving this issue was on the plaintiff, who after his death was substituted through his LR's and out of his LR's his son Devender Pal Singh has appeared himself as PW4 and has filed his affidavit and has reiterated the contents of the plaintiff wherein he has specifically stated that land on the back side of his property, as shown Yellow and Green in the site plan, is the property of defendant No.1 falling in Khasra No.431/64/2, which means that it is admitted case of the plaintiff that defendant No.1 is the owner of the property and as such the onus to prove that portion shown from point A to B in the site plan is a public street, was on the plaintiff or on the MCD as they are alleging that this portion is a public road. The plaintiff has not been able to show any right, title or interest in the property nor the same is his case. Once it is the case of the plaintiff that a public street exists there, the onus was on him to show that there is any infringement of his rights and he has a locus to file this case. The testimony of all the plaintiff witnesses, including the plaintiff shows that owner of this property falling in property No. 431/64/2 is of Trust/defendant No.1 and in facts the plaintiff has not been able to show IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI that what locusstandi he has to file this case and plaintiff, therefore, has failed to prove the issue, the onus of which was on him.
7. ISSUE NO.2:
The onus of proving this issue was on the defendants No. 1 to 3 and in this regard it has been argued by counsel for these defendants that admittedly apart from defendants No.3 the other Trustees have not been impleaded as defendants and in the absence of the other Trustees, the suit is bad for mis joinder of parties.
8. I have heard his submissions. The Trust Deed Ex.D1 placed on record shows that there are five Trustees of this Trust. They have not been impleaded in this case and as such the suit seems to be bad for the non joinder of parties. The present issue has been wrongly framed as misjoinder, which in facts should be an issue in respect of nonjoinder of parties. It is settled law that in case of a Trust all the trustees should be made a party for which reliance can be placed upon the judgment of Hon'ble Delhi High Court titled as Duli Chand V Mahavir Prasad Trilok Chand, reported in AIR 1984 Delhi 145.
9. In view of this judgment and considering the fact that apart from defendant No.3, there are other trustees of defendant No.1. It appears that suit is bad for nonjoinder of parties. The issue, therefore, is decided in favour of the defendants.
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI
10. ISSUE NO.3:
The onus of proving this issue was on defendant No.4. It is settled proposition of law that suit for Permanent Injunction, which requires urgent hearing, are exempted from statutory notice as required u/s 477/478 of DMC Act as the very purpose of filing the suit will become infructuous if the notice is given. No law contrary to it has been cited on behalf of defendant No.4 and as such this issue is decided against defendants No.4.
11. ISSUE NO.4:
The onus of proving this issue was also on defendant No.4. In this regard it has been suggested to the plaintiff witnesses by defendant No.4 that encroachment removal action was taken by MCD in Dec.'94, which has been admitted by all the witnesses. It has also been admitted by these witnesses that MCD has already rejected the application for the grant of temporary licence for storing of chemicals and in view of this admission as well as considering the testimony of defendant No.4 witness, it has been argued for defendants No.4 that there is no cause of action against defendant No.4 and suit is liable to be rejected.
12. I have heard the submissions in this regard. Though admittedly action has been taken subsequent to filing of this suit, which was filed on 29.11.1994, but it is prayed for by the plaintiff that defendants No. 1 to 3 should also be restrained in future from encroaching upon the portion shown from A to B. IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI The relief is only against defendants No.1 to 3 and as admitted by plaintiff witnesses, the alleged encroachment has already been removed by MCD in Dec.'94 and as such there seems to be no cause of action qua defendant No.4 in the entire suit. The issue, therefore, is decided in favour of defendant No.4 and suit is held to be without any cause of action against defendant No.4.
13. ISSUE NO.5:
The onus of proving this issue was also on plaintiff and in this regard the plaintiff has examined as many as five witnesses, out of which PW4 is the plaintiff himself and PW3 is the draftsman who prepared the site plan and other three witnesses are residents of the area. Ld. Counsel for the defendants No. 1 to 3 has drawn my attention to the fact that apart from PW4 the affidavit of all the other witnesses of the plaintiff, namely, Madan Lal Sharma, Ashwani Kr., Jagdish Singh, Vijay Kumar, Brij Mohan Singh, Kanti Devi, Amar Singh, Maya Devi, Madan Singh, Raghubir Singh are identical. He has stated that it is very surprising that all the aforesaid witnesses of the plaintiff have given verbatim same statement and this fact is sufficient to disbelieve their statement.
14. I have perused the affidavits of these witnesses and I find force in the contention of the counsel for defendants No. 1 to 3 since as many as 10 witnesses have deposed exactly same in their affidavits without any change even of comma and full stop and as such the probability of their being tutored witnesses, cannot be ruled out. It cannot be practically possible that these IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI number of witnesses can make a statement which is verbatim same and as such their testimonies become highly unreliable. Though as a matter of fact out of these 10 witnesses only three witnesses have been examined but the fact remains that these 10 witnesses have sworn on oath before the Oath Commissioner about the facts and it becomes immaterial whether they appeared for crossexamination or not. Apart from that, their cross examination shows that all of them have admitted that defendant No.1 Trust is the owner of the property in dispute and the fact that the plaintiff himself is running a guest house in his property and none of them have seen a valid license for running the guest house. Plaintiff himself has appeared a PW4 and reiterated the contents of his plaint and has admitted in the cross examination that he does not have any license to run guest house in his property. It is settled proposition of law that one who seek equity must do equity and the plaintiff, who has alleged that defendants No.1 to 3 are storing chemicals in their property without any license, does not himself has any license to run his guest house.
15. As far as defendants No. 1 to 3 are concerned, they have examined defendant No.3 as their sole witness, who is one of the trustees of the Trust and on oath has stated that defendant No.1 Trust is the owner of Khasra No.431/64/2 and has also proved on record certificates granted by revenue authorities, the trust deed, license issued by MCD, their renewal, receipt vide Ex.D3 to Ex.D35. It has also been stated that there is no road as alleged from pointA to B in Ex.PW3/1. It is also stated by him that defendant has filed a IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI writ petition before the Hon'ble High Court wherein it was held that if MCD wants to make a road as per lay out plan in the property owned by a private person, the same has to be acquired as per law. This witness was cross examined by the counsel for the plaintiff wherein it has been suggested that some other persons are the coowners of the property. However, this suggestion does not make out any case for the plaintiff since it is admitted case of the plaintiff himself that defendant No.1 is the owner of the property.
16. Ld. Counsel for the plaintiff during the course of arguments has stated that the title of the land being agricultural, the same either governed by the Delhi Land Reforms Act or Punjab Land Reforms Act and there are two Khasras adjoining the property of the plaintiff bearing Khasra No.341/64/2 measuring 25 Acres and another 431/64 measuring 5 Acres and defendant No.1 is trying to encroach on the land falling in Khasra No.431/64 which is not owned by them and as such they cannot be permitted to encroach upon this property. He has also argued that once the area is urbanized and lay out plan is sent and sanctioned by the MCD, the public streets vests with the MCD and further no objection has been raised by defendant No.1 till date to the lay out plan sanctioned by the MCD and as such the portion from A to B has become the public street, which defendant No.1 is trying to convert into a plot. He has also stated that defendants are shying away from getting the property demarcating and further the site plan has been proved on record by the plaintiff to which there is no dispute and as such the defendants should be restrained from making any encroachment on this property. He has IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI further argued that Zama Bandi has no value as the land is not used for agricultural purposes.
17. On behalf of the defendants No.1 to 3 it has been argued that plaintiff, who is the owner of property No.1415, Kewal Park and has failed to prove that the portion shown from pointA to B is a public street and further even MCD has not been able to show that how there carved out a public street in the disputed land and in view of the judgment of Hon'ble Delhi High Court in the writ petition filed by defendant No.1, the plaintiff has failed to prove this issue in his favour.
18. I have considered the material placed on record. The most important aspect of the case is the ownership of the property in dispute. The admitted case of the plaintiff is that this property shown in Green and Yellow is owned by defendant No.1 Trust and it is the portion shown in Blue from pointA to B they are trying to encroach upon. I have perused the site plan. The entire strip of the land including portion Yellow and Green falls in Khasra No.431/64/2. The portion Yellow and Green falls in one straight strip which is not disputed by the plaintiff and it is not made clear or proved by the plaintiff during trial that how from the complete stretch of this Khasra a small area of about 100 Sqr.yds. becomes a public property without any acquisition. The site plan filed by the plaintiff which is also the lay out plan shows that portion shown in Yellow have been shown as a park which admittedly is the property of defendant No. 1 of Khasra No.431/64/2. It has been held by Hon'ble Delhi High Court in the writ petition filed by defendant No.1 that if MCD has to IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI regularise an unauthorised colony as per their lay out plan, then for providing public convenience and public utility like parks and road, if the land belonging to an individual is required then it has to be acquired in accordance with law and MCD cannot take law into its own hands and to proceed to lay parks, streets and roads on the property belonging to private persons.
19. After making this observation, Hon'ble Delhi High Court left the question of the title to be determined in the Civil court. As already said, the title of the land is not in dispute as it is the admitted by the plaintiff himself that land belongs to defendant No.1 and further MCD/defendant No.4 has not been able to prove nor it is their case that the property was acquired by them for constructing a park as shown in Yellow and a road as shown in Blue in the lay out plan. The title of the land since admitted falls with defendant No.1and in view of the same, the present issue is decided against the plaintiff.
20. RELIEF:
In view of my findings given on the aforesaid issue, the plaintiff is not entitled to any relief in this case and further there seems to be no cause of action against defendant No.4 MCD nor any relief has been claimed against defendant No.4 MCD. The suit seems to be bad for nonjoinder of the parties as well. Same, therefore, is dismissed with no order as to costs. Decree Sheet be prepared. File be consigned to Record Room.
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI Announced in the open Court (AMIT KUMAR) on 06.02.2010 JSCC/ASCJ/GJ(NW) ROOM NO.217, ROHINI COURTS, DELHI