Delhi District Court
Fakir Chand Pal @ Fakira vs Union Of India on 23 December, 2014
IN THE COURT OF SHRI DHARMENDER RANA: ADDITIONAL SENIOR
CIVIL JUDGE : JSCC : GUARDIAN JUDGE, KARKARDOOMA COURTS
(EAST)
Suit No. 551/2013
1. Fakir Chand Pal @ Fakira
S/o Late Sh. Bhagwana
2. Shri Bhagwat
s/o late shri Bhagwana
both r/o village Tahirpur, Shahdara, Delhi.
.....Plaintiff
Vs.
1. Union of India
through
Secretary Ministry of Urban Development
Government of India, New Delhi.
2. Delhi Development Authority
Through its
Vice Chairman, Vikas Sadan,
INA, New Delhi.
.....Defendants
Date of institution of the suit : 28.08.1993
Date on which order was reserved: 18.12.2014
Date of decision : 23.12.2014
SUIT FOR DECLARATION AND PERMANENT INJUNCTION.
JUDGMENT
By way of the instant judgment I propose to dispose off a suit for declaration and permanent injunction instituted by the plaintiff against the defendants.
2. Briefly stated, the plaintiff claims themselves to be the permanent resident of village Tahirpur situated within the revenue estate of Shahdara. It is averred by the plaintiffs that the forefathers of the plaintiffs developed the barren forest land and made it arable and cultivable with their hard labour. It is averred that the said land bear khasra no. 12/5, 13/11 and 11/25 forming part of khasra no. 317/17 and 318/17 min. block 7 of the revenue estate Jhilmil Tahirpur (hereinafter referred to as suit land). It is averred that originally village Tahirpur constituted part of United Province, now known as Uttar Pradesh, but subsequently in the year 1915, village Tahirpur was transferred to Delhi Province. The ancestors of the plaintiffs were in cultivatory possession of the suit land even prior to the said transfer of the land to Delhi Province. The plaintiffs claims themselves to be now in cultivatory possession of the suit land. It is averred that the ancestors of the plaintiffs used to pay lagaan for the suit land. It is further averred that in the year 1940, the Delhi Improvement Trust leased out the suit land to the grandfather of the plaintiff namely Shri Yadu s/o Gurdayal at the yearly rent of Rs.1 per bigha and subsequently the rent was enhanced to Rs.1.50 per bigha per annum w.e.f. 16.06.1945. It is averred that Delhi Improvement Trust and its successor Delhi Development Authority (DDA) used to collect rent from Shri Yadu and his name was recorded as tenant/lessee in the Jamabandi prepared by the Improvement Trust. Upon the demise of Shri Yadu, Delhi Improvement Trust started collecting the lease money / ground rent/lagaan from the father of the plaintiffs namely Bhagwana s/o Yadu w.e.f. year 1956 and DDA continued the said practice till 1968. Subsequently, DDA malafidely and illegally stopped collecting rent from the plaintiffs in order to grab the suit land. It is averred that the status of the father of the plaintiffs as Kastkar/tenant in the suit land was acknowledged by DDA and his name was mutated in the revenue record by the revenue authorities. It is claimed that pursuant to the death of Shri Bhagwana, the plaintiffs are in cultivatory possession of the suit land as Kastkar / tenant. It is claimed that on 24.11.1984 the staff of DDA damaged the standing wheat crops of the plaintiffs and the plaintiffs were compensated for the alleged illegal act, by DDA vide cheque dated 08.02.1985, for a sum of Rs.1470/ as compensation for the damaged crops. It is claimed that one Shri Het Ram and Shri Kewal, who were on a equal footing with plaintiffs herein, also used to pay lease money / ground rent to the defendants. It is claimed that both the aforesaid persons instituted a civil suit for permanent injunction against the defendants in respect of their tenanted land which was decreed by the court.
3. It is claimed that in January 1986 the officers of DDA forcibly attempted to dispossess the plaintiffs and plaintiffs were constrained to approach the civil court by filing a permanent injunction suit. It is admitted that the said suit was dismissed by the Ld. Sub Judge Ist class on 22.01.1991. It is further averred that defendant no.2 claims to have initiated proceedings under Public Premises (eviction of unauthorized occupant) Act 1971 but the plaintiffs were never served with any notice in this regard. It is claimed that the plaintiffs are in cultivatory possession of the suit land till date. The plaintiffs have now approached the court seeking the relief of declaration and permanent injunction in their favour for a declaration of their legal status and protection of their possession in the suit land.
4. Summons of the suit were issued to defendants. Defendant no.1 has opted not to contest the suit and consequently defendant no.1 was declared ex parte vide order dated 08.05.1996.
Defendant no.2 has opted to resist the claim of the plaintiffs by filing a written statement. It is, interalia, averred by defendant no.2 that suit is bad for want of notice u/s 53B of Delhi Development Act. It is claimed that there is no khasra number 12/5, 13/11 and 11/25 in the record of Jamabandi and there is khasra no. 317/17 and 318/17 and the said khasras belongs to the government and under the control and management of DDA by virtue of a Najul Agreement 1937. It is averred that khasra no. 317/17 and 318/17 min has been transferred to EDI for development purposes on 23.04.1991. The possession of the ancestors of the plaintiffs in the suit land even prior to 1950 has been denied. It is averred that as per the entries of Jamabandi 193536 of Revenue estate Jhilmil Tahirpur some land was given on theka by the government to Shri Incha Ram and Shri Mohd. Hasan. It is claimed that in the year 1937 an agreement was made between government of India and Delhi Improvement Trust called Najul Agreement whereby the land of Revenue estate of Jhilmil Tahirpur including the suit land, were placed under the control and management of Delhi Improvement Trust. It is claimed that there is no entry of Shri Yadu s/o Shri Gurdayal in the jamabandi for the year 193940 to 194748. It is claimed that the land was in charge of government even prior to the existence of Delhi Improvement Trust. It is averred that the name of Bhagwana s/o Yadu is recorded as unauthorized occupant in the revenue record. Defendant no.2 has denied the admission of Shri Bhagwana, father of the plaintiffs, as a Kastkar in the suit land. It is claimed by defendant no.2 that since the land was required by the government for housing scheme, the plaintiffs, being unauthorized occupants, were removed from the suit land and compensation of crop was given to them. The defendant no.2 has accordingly prayed for dismissal of suit with cost.
5. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor vide orders dated 02.08.2001.
1. Whether the plaintiffs are owners in possession of land in khasra no. 12/5, 13/11 and 11/25 of village Tahirpur, Shahdara ? OPP
2. Whether the suit is bad for want of notice u/s 53B of DD Act ? OPD
3. Whether the suit land falls in khasra no. 317/17 and 318/17 village Jhilmil Tahirpur which belongs to govt. and under the management and control of DDA under Nazul Agreement ? OPD
4. Whether the plaintiff is entitled for the relief of declaration as prayed for ? OPP
5. Whether the plaintiff is entitled for the relief of permanent injunction ? OPP
6. Whether the plaintiff is entitled for the relief of declaration as prayed for ? OPP
7. Relief.
6. It is pertinent to mention here that vide order dated 27.08.20013, My Ld. Predecessor has modified the issue no.1 in following terms: Issue No. 1.
Whether the plaintiffs are Kastkar/Tenants in possession of land falls in Khasra no. 12/5, 13/11 & 11/125 situated in village Tahirpur, Revenue estate Shahdara, Delhi? OPP
7. Further, during the course of trial, it has come to the notice of the Court that plaintiff herein has already filed an injunction suit against the defendant herein. Hence, vide order dated 06.09.2014 plaintiff was directed to file affidavit intimating the court regarding outcome of the said case. Accordingly on 09.10.2014 plaintiff has filed an affidavit alongwith certified copy of plaint as well as judgment in suit bearing no. 95/86 intimating the court that the said suit of the plaintiffs has already been dismissed. Consequently, vide order dated 09.10.2014, following additional issue has been framed: Additional Issue: Whether the suit is barred under the provisions of section 11 of CPC ? OPP EVIDENCE
8. The plaintiff has examined himself as PW1 and in his evidence by way of affidavit, he has reiterated and reaffirmed the stand as taken by the plaintiff in the plaint. He has filed on record the site plan is Ex. PW1/1, legal notice is Ex. PW1/2, its acknowledgments are Ex. PW1/3 and Ex. PW1/4 respectively, plaint as well amended plaint are Ex. PW1/5 and Ex. PW1/6.
9. Subsequently, on 09.08.2011 and on 01.07.2013, plaintiff has filed two additional affidavits in rebuttal, reiterating and reaffirming the stand as taken by the plaintiff in the plaint and filed on record certified copy of judgment as Ex. P9 and that of decreesheet as Ex. P10, certified copy of judgment dated 20.07.1965 as Ex. P11 and that of decree sheet as Ex. P12, certified copy of statement of Shri Chinta Mani Sharma as Ex. P13, certified copy of statement of Ld. Counsel for DDA, MCD and statements of defendant no.1 and 2 and that of order of Ld. Sub Judge, 1st class Ex. P14 and Ex. P15, decree sheet as Ex. P16, application u/s 151 CPC as Ex. P17, compromise deed as Ex. P18, certified copy of judgment dated 17.12.1971 as Ex. P19 and that of decreesheet as Ex. P20, copy of judgment is Ex. P21, that of decree sheet as Ex. P22, copy of Award No. 1/200809 passed by Shri A.K. Kaushal, Land Acquisition Collector, ADM, NorthEast as Ex. P23, copy of Award No. 1/2008/2009 passed by Shri S.K. Singh, Land Acquisition Collector, South as Ex. P24, copy of Award No. 1/200910 passed by Shri A.K. Kaushal, the then Land Acquisition Collector, ADM, NorthEast dated 15.06.2009 as Ex. P25, copy of Award No. 20A/7475 passed by Shri B.M.L. Bomat dated 29.03.1975, The Land Acquisition Collector, (MSW), Delhi as Ex. P26, demarcation report of learned SDM as Ex. P27, report Nishandehi as Ex. P28, copy of Akssizra as Ex. P29.
10. Shri Harnand Singh and Shri Het Ram have been examined as PW2 and PW3. In their evidence by way of affidavit PW2 and PW3 have submitted that they are the residents of village Tahirpur and they have supported the case of the plaintiff.
11. Shri Rohtash Singhal, Patwari, DDA Vikas Sadan, has been examined as PW4 in the instant matter and he has proved the jamabandi pertaining to khasra no. 1 min 318/17 min village Jhilmil Tahirpur, for the period 193940 as Ex. PW4/1, another Jamabandi for the period 194344 as Ex. PW4/2, jamabandi for the period 194748 as Ex. PW4/3, jamabandi for the period 195152 as Ex. PW4/4, jamabandi for the period 195556, 195960, 196364, 196768 as Ex. PW4/5 to Ex. PW4/8 and the khasra girdawries pertaining to khasra no. 1 min 318/17 min village Jhilmil Tahirpur from 18.10.1970 to 18.03.1987 as Ex. PW4/9 to Ex. PW4/18.
12. Shri Ram Narain Bairwa, Asstt. Tehsildar, Nazul section DDA has been examined as PW5 in the instant matter. He has proved the lease deed dated 13.01.1954 as Ex. PW5/1.
13. Shri Ram Kishan, Tehsildar, Nazul section DDA has been examined as PW6 in the instant matter. He has proved the jamabandi of khasra no. 318/17 of 1 min of village Tahirpur as Ex. PW6/1 to Ex. PW6/13. He has also proved the khasra girdawries of the said land Ex. PW6/14 to Ex. PW6/23.
14. Shri S.K Sahni, Assistant Accounts Officer Residential land C1, 3rd floor, Vikas Sadan from DDA, New Delhi has been examined as PW7. He has proved the original receipts as Ex. PW7/1 and Ex. PW7/2.
15. Shri Jitender Kumar, Accountant, Cash Main, DDA office has been examined as PW8 in the instant matter. He has proved the statement receipts as Ex. PW8/1 and annexure thereto as Ex. PW8/2.
16. Shri Kulbir Singh, Patwari Lands Department, DDA Delhi has been examined as PW9 in the instant matter. He has proved the lease deed Ex. PW9/1, Ex. PW9/2, the receipts Ex. PW9/3 to Ex. PW9/5, letters Ex. PW9/6 to Ex. PW9/8, resolution Ex. PW9/9, Ex. PW9/9A, order Ex. PW9/10, khasra girdawries for the period 193236 to 19871996 from A to M Ex. PW9/11, letter Ex. PW9/12 to Ex. PW9/15.
17. Shri Anil Bhatia, UDC, Meeting Cell, DDA, Vikas Sadan, INA has been examined as PW10 in the instant matter. He has proved the resolution Ex. PW10/A, Ex. PW10/B, Ex. PW10/C and Ex. PW10/D.
18. Shri R.C. Saxena, Asstt. Settlement Officer, TN Section DDA Delhi has been examined as PW11 in the instant matter. He has proved the receipts Ex. PW11/1 to Ex. PW11/19, letter Ex. PW11/20, site plan Ex. PW11/21, letter Ex. PW11/22, Ex. PW11/23, Ex. PW11/24, Ex. PW11/25, Ex. PW11/26, Ex. PW11/27, Ex. PW11/28 and Ex. PW11/29.
19. Upon conclusion of plaintiffs' evidence, the defendant no.2 has examined three witnesses in the instant matter.
20. Shri Vijay Kumar, Kanungo (TN Section), DDA Vikas Sadan has been examined as DW1 in the instant matter. He has proved the jamabandi Ex. DW1/3 and sizra as Ex. DW1/5.
21. Shri Suresh Sharma, Planning Assistant, TYA Unit, DDA Vikas Sadan has been examined as DW2 in the instant matter. He has proved the original layout plan as Ex. DW2/A.
22. Shri Raghuwar Dayal, Peon Meeting Cell, B block DDA Vikas Sadan has been examined as DW3 in the instant matter. He has proved the Nazul Agreement as Ex. DW3/1.
23. Upon conclusion of the evidence, arguments were addressed at bar. I have heard the submissions and carefully perused the record.
24. My issuewise findings are here as under: Modified issue No. 1.
Whether the plaintiffs are Kastkar/Tenants in possession of land falls in Khasra no. 12/5, 13/11 & 11/125 situated in village Tahirpur, Revenue State Shahdara, Delhi? OPP
25. It is argued on behalf of plaintiffs that they are in actual and physical cultivatory possession of the suit land till date. It is further argued that the name of their ancestors and their father is reflected in the Jamabandi and even khasra girdwari records their presence in the suit land. It is contended that till date they have not been evicted by any court order and thus they have proved on record that they are kastkar / tenants of the suit land.
26. On the contrary, defendant no.2 has argued that there is no lease agreement executed between the plaintiffs and defendants and in the absence of any agreement to the contrary the plaintiffs cannot claim themselves to be the kastkar / tenants in the suit land.
27. It is convincingly proved on record that the suit land is in fact nazul land and belongs to government. The nazul agreement Ex. DW3/1 conclusively proves the same. Admittedly, there is no lease agreement executed between the plaintiffs and defendants herein. The last lease deed pertaining to the suit land (Ex. PW1/D also exhibited as Ex. PW9/1) was executed on 16.04.1956 and that too for a period of one year only. The said lease deed was also not executed in the name of the plaintiffs or their ancestors but rather one Prem Chand. Even the so called rent receipts relied upon by the plaintiffs would not come to the rescue of the plaintiffs to establish any tenancy as the last rent receipt Ex. PW1/13 pertains to the year 1962 and even the document Ex. PW8/2 can merely establish the acknowledgment of receipt uptill 29.12.1967. Consequently, there is no conclusive evidence establishing the relationship of lessor / lessee between the plaintiffs and defendants.
28. As per section 105 of the Transfer of Property Act 1882, a lease of immovable property is a transfer of a right to enjoy such property, for consideration to the transferor by the transferee. The contract of lease is bilateral in nature and the transferor and transferee are required to be consensus ad idem. The plaintiffs cannot foist a lease upon the rightful owner unless the rightful owner is inclined to execute a lease in favour of the plaintiffs.
29. Even if presuming that there was a lessor/lessee relationship between the plaintiffs and defendants, the same could not have been extended beyond the year in which it was executed at best only till 196768, for want of compulsory registration u/s 17 of the Indian Registration Act and u/s 107 of the Transfer of Property Act. In any case the same stood terminated much prior to the institution of the present suit and the plaintiffs were not entitled to remain in the suit land after the dismissal of suit no. 95/86 on 22.01.1991.
30. It is thus evident that the plaintiffs have miserably failed to establish any lessor/lessee relationship between the parties.
31. Now let us examine their claim regarding the status of Kastkar (cultivator) in the suit land. The plaintiff has himself relied upon the demarcation report Ex./ PW1/27 and Nishandehi Ex.PW1/28. In the said documents SDM Kamaldeep Gupta has specifically reported that the suit land is lying vacant at present and inside the boundary wall of DDA. It is further reported that the owners of the suit land is Sarkar Daulatmadar i.e. government, as per record. Thus it has been conclusively established by the documents relied upon by the plaintiffs themselves that the suit land is lying vacant and the plaintiffs are not cultivating the same.
32. Thus it is evident that the plaintiffs are neither tenants nor kastkars. The issue is accordingly decided against the plaintiffs and in favour of the defendants. Issue No.2.
Whether the suit is bad for want of notice u/s 53B of DD Act ? OPD
33. The onus to prove this issue was upon the defendants. Plaintiffs have proved the copy of the legal notice dated 17.06.93 Ex. PW1/2 and have also placed on record the acknowledgment Ex. PW1/3 and Ex. PW1/4. On the other hand the defendants have miserably failed to rebut the service of notice Ex. PW1/2 upon them and to prove that no notice was served upon them. The issue is accordingly decided in favour of the plaintiffs and against the defendants.
Issue NO. 3 Whether the suit land falls in khasra no. 317/17 and 318/17 village Jhilmil Tahirpur which belongs to govt. and under the the management and control of DDA under Nazul Agreement ? OPD
34. Pursuant to the directions of the court demarcation was conducted in the instant matter by Shri Kamaldeep Gupta, SDM Seemapuri. Both the parties have relied upon the above mentioned report of the concerned SDM Ex. P27 and report Nishandehi Ex. P28. In the said documents, it has been conclusively proved on record that upon demarcation, the suit land was found to be lying in khasra no. 1 min and 318/17 min. This issue accordingly stands disposed off.
Issue No. 4 Whether the plaintiff is entitled for the relief of declaration as prayed for ? OPP
35. The plaintiff has prayed that they be declared kastkars / tenants in cultivatory possession of the suit land. It has been conclusively established above that plaintiffs are neither lessee nor kastkar (cultivator) in the suit land.
36. As per provisions of section 34 of Specific Relief Act, any person entitled to any legal character or to any right as to any property may institute a suit for declaration. However, a complete stranger whose interest is in no way affected or who has no interest in other's property is not entitled to maintain a suit u/s 34 of Specific Relief Act. The plaintiffs herein, in the absence of any right, title or interest in the suit land are not entitled for any declaration. Issue is decided accordingly in favour of the defendants and against the plaintiffs.
Issue no.5 Whether the plaintiff is entitled for the relief of permanent injunction ? OPP
37. It has been argued by the counsel for plaintiffs that the plaintiffs and their ancestors have been in continuous possession of the suit land for a very long period. It is argued that the rent receipt Ex. PW1/13, the communication Ex. PW8/1 and the annexure Ex. PW8/2 establishes their possession in the suit land. It is further highlighted that the name of Yadu (grandfather of the plaintiffs herein) is reflected in the Jamabandi. It is further highlighted that even the jamabandi pertaining to the year 196768 Ex. PW1/A5 records the presence of Bhagwana (father of plaintiffs) in the suit property. It is further highlighted that in the khasra girdawri Ex. PW9/11, the possession of the plaintiffs in the suit land is established up till 1996. It is argued that a person in settled possession cannot be evicted without due process of law. The plaintiffs have relied upon the following citations: (1) AIR 1968 S.C. 620 titled as Lallu Yeshwant Singh (dead) through LRs Vs. Rao Jagdish Singh;
(2) AIR 1968 SC 702 titled as Munshi Ram & Ors. Vs. Delhi Administration; (3) AIR 1968 SC 1165 titled as Nair Service Society Ltd. Vs. K.C. Alexander; (4) 1970 All India Rent Control Journal 95 (SC) titled as Mohan Lal and others Vs. State of Punjab;
(5) AIR 1974 S.C. 223 titled as Gurcharan Singh & Ors. Vs. Prithi Singh & Ors.; (6) AIR 1975 SC 1674 titled as Puran Singh Vs. The State of Punjab; (7) 1976 PLJ 26 Punjab & Haryana High Court, titled as Amal Kumar & Ors. Vs. Bhupender Singh & Ors.;
(8) AIR 1976 S.C. 1485 titled as Vishwa Vijay Bharti Vs. FakhrulHassan & Ors.; (9) AIR 1977 SC 619 Ram Rattan and others Vs. State of UP.
(10)AIR 1980 Kerala (224) High Court, titled as Karthiyayani Amma Vs. Govindan; (11) AIR 1981 Rajasthan 217 titled as M/s Chandra & Co. Vs. State of Rajasthan; (12) AIR 1982 Madras 431 titled as M.R.S. Ramakrishnan Vs. The Assistant Director of Exserviceman Welfare;
(13) 1982 PLR 291 Punjab & Haryana High Courts, titled as Smt. Geeta Vs. Ashok Kumar;
(14) AIR 1989 S.C. 2097, titled as Krishna Ram Mahala (dead) Vs. Mrs. Shobha Venkat Rao;
(15) AIR 1989 S.C. 997 titled as State of U.P. & Ors. Vs. Maharaja Dharmender Prasad Singh etc. (16) 1989 PLJ 101 Punjab & Haryana High Court, titled as Balkar Singh & Ors. Vs. Commissioner Jalandhar Division;
(17) 43 (1991) Delhi Law Times 570 Delhi High Court, titled as Babu Lal Vs. DDA; (18) 45 (1991) Delhi Law Times 277 of High Court of Delhi, titled as Union of India Vs. M/s I.S. Goel & Co. & Ors.;
(19) 1992 Recent Revenue Reports (2) - 358 Punjab & Haryana, titled as Hukam Singh Vs. Tara Singh;
(20) 46 (1992) Delhi Law Times 121 (Delhi High Court), titled as Mangat Vs. DDA; (21) 54 (1994) Delhi Law Times 401 Delhi High Court, titled as Amrik Singh Sabharwal Vs. Kanta Devi;
(22) AIR 1994 (NOC) 235 Punjab & Haryana High Court, titled as Balbir Singh Vs. Jagir Singh;
(23) 57 (1995) Delhi Law Times 129 Delhi High Court, titled as Delhi Development Authority Vs. Suri & Suri Printed Ltd.;
(24) 1996 (4) S.C. Cases 144, titled as Samir Sobhan Sanyal Vs. Tracks Trade Private Ltd. & Ors.;
(25) 1999 (3) RCR (Civil) Page No. 119B, titled as Prataparai N. Kothari Vs. John Branganza;
(26) 2001 (4) RCR (Civil) 819 Punjab & Haryana High Court, titled as Sarup Singh Vs. State of Haryana;
(27) 106 (2003) Delhi Law Times 548 Delhi High Court, titled as Delhi Development Authority Vs. Vakil Singh;
(28) (2004) 1 SCC 769 titled as Rame Gowda (dead) by LR Vs. M. Vardappa Naidu; (29) (2004) RCR (Civil) 175 Punjab & Haryana High Court, titled as Ashwani Kumar Vs. Financial Commissioner;
(30) 2005 (3) RCR (Civil) 6 Madras High Court, titled as Commissioner Theni & Anr. Vs. Mrs. Rajeshwari;
(31) (2008) 9 S.C. 368, titled as Rajinder Singh Vs. State of Jammu & Kashmir & Ors.;
(32)173 (2010) DLT 575 titled as DDA Vs. Kela Devi;
(33) VI (2014) SLT 449 titled as Shaha Ratansi Khimji & Sons Vs. Proposed Kumbhar Sons Hotel Pvt. Ltd. & Ors.
38. On the contrary It is argued by the counsel or defendants that the plaintiffs have already been dispossessed by the defendants on 24.11.1984 itself and thus they are not entitled for relief of permanent injunction.
39. It would be sufficient to dispose off the issue simply on the basis of demarcation report Ex. P27 and Nishandehi P28. The said documents have indisputably established on record that the plaintiffs are no longer in possession and thus they are not entitled for permanent injunction for protection of their possession.
40. However, even if, for the sake of arguments, it is presumed that the plaintiffs are still in possession of suit land, yet, the net resultant shall be the same.
41. It has been established above that the plaintiffs herein are neither lessee nor kastkar and are infact trespassers upon the suit land. Even the revenue documents i.e. the Jamabandi Ex. P6, Ex. PW1/A5 and Ex. PW9/11 record the presence of the plaintiffs or their ancestors as unauthorized occupants.
42. I concur with the counsel for plaintiffs to the extent that law seeks to protect settled possession and frowns upon any forcible dispossession. Even an owner cannot dispossess anybody forcibly without adopting due process of law. However, I cannot travel any further with the counsel for the plaintiff to the extent that the plaintiffs herein are entitled for a permanent injunction in their favour.
43. Hon'ble Apex Court, quoting from the judgment of the Hon'ble Delhi High Court in the matter of Thomas Cook (India) Limited v. Hotel Imperial 2006 (88) DRJ 545 has examined the requirement of 'due process of law' and has observed here as under in the matter of Maria Margadia Sequeria ... vs Erasmo Jack De Sequeria (D) ... on 21 March, 2012. APPEAL NO. 2968 OF 2012(Arising out of SLP (C) No. 15382 of 2009).
"The High Court of Delhi in a case Thomas Cook (India) Limited v. Hotel Imperial 2006 (88) DRJ 545 held as under: The expressions `due process of law', `due course of law' and `recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed `forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing ejectment from settled possession can only be had by recourse to a court of law. Clearly, `due process of law' or `due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.
Now, this `due process' or `due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the `bare minimum' requirement of `due process' or `due course' of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e., for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the `recourse to law' stipulation stands satisfied when a judicial determination is made with regard to the first party's protective action. Thus, in the present case, the plaintiff's failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law.
83.We approve the findings of the High Court of Delhi on this issue in the aforesaid case"
44. In the case at hand, the earlier suit of the plaintiffs CS No. 95/86 for perpetual injunction seeking to restrain the defendant' no.2 from interfering with/ disturbing the possessing of the plaintiff's over the suit land has already been dismissed by the court vide judgment dated 22.01.1991. Thus in light of the mandate of the Hon'ble Apex Court in the mater of Maria Margadia Sequeria (supra) the requirement of due process of law stood satisfied and the plaintiffs were not entitled to remain in the suit property after judgment dated 22.01.1991. Consequently, I am of the opinion that no ground for permanent injunction is made out in favour of the plaintiffs. This issue is accordingly decided in favour of the defendants and against the plaintiffs. Issue no.6 Whether the plaintiff is entitled for the relief of declaration as prayed for ? OPP
45. Perusal of record reflects that issue no.6 i.e. entitlement of plaintiff to seek declaration has been inadvertently framed as the same relief has been mentioned in issue no.4 and issue no.4 has already been decided above, against the plaintiffs. Thus, there is no need to give any separate finding on issue no.6 and the same is accordingly deleted at this stage.
Additional Issue Whether the suit is barred under the provisions of section 11 of CPC ? OPP
46. It is argued on behalf of Ld. Counsel for plaintiff that the suit is very much maintainable and is not barred under the provisions of section 11 CPC. It is submitted that the parties in suit no. 95/86 and the case at hand are different and in order to attract the bar of res judicata enshrined under the provisions of section 11 CPC, the parties in the earlier suit and the instant suit must be the same. It is further argued that in the earlier suit the plaintiff has simply sought a permanent injunction to protect his possession whereas in the case at hand, plaintiff is also seeking relief of declaration. It is thus argued that suit is very much maintainable. Ld. Counsel for plaintiff has relied upon AIR 1965 Madras 355 and AIR 2000, S.C. 3272 in support of his contention.
47. On the contrary it is argued that the plaintiffs herein are attempting to hoodwink the court by simply impleading Union of India as defendant in the instant case. It is further argued that in the judgment dated 22.01.1991, the certified copy of the same has been placed on record by the plaintiffs themselves, the Ld. Sub Judge has categorically observed that the plaintiffs herein have got no right, title or interest in the suit land and thus the present suit is barred under the provisions of section 11 CPC being hit by res judicata.
48. The concept of res judicata is enshrined in section 11 of the CPC which is reproduced here as under for ready reference: "Section 11 CPC "Res judicata no court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.
ExplanationI .............
ExplanationII .............
ExplanationIII ...........
Explanation IV : Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. ExplanationV ..........
ExplanationVI .............
ExplanationVII .............
ExplanationVIII ............
49. I concur with the counsel for plaintiffs that in order to attract the bar of res judicata, the former suit and the subsequent suit must be between the same parties. In suit no. 95/86, admittedly, Union of India (defendant no.1 herein) was not impleaded as a party.
However, it would be pertinent to examine the requirement of impleadment of Union of India as a party in the instant matter. As per provisions of Order 1 rule 3 CPC, all persons may be joined in one suit as defendants, where any right to relief in respect of or arising out of, the same act or transaction or series of act or transactions is alleged to exist against such persons. 'Right to relief' against such persons constitutes the crux of the matter.
50. Scrutiny of the plaint reveals that there has been not even a whisper of averment in the plaint of the instant suit that Union of India or any of its officers has ever attempted to interfere in the possession of the plaintiffs or they have raised any question mark upon the legal status or legal character of the plaintiffs herein. Thus it is evident that there was no right to relief alleged to be in existence against Union of India (i.e. defendant no.1) and the impleadment of Union of India appears to be a ruse to bypass the rigors of section 11 CPC.
51. As per provisions of Order 1 rule 10 CPC, the court may at any stage of proceedings, either upon or without the application of either party, order the name of any party improperly joined, whether plaintiff or defendant, to be struck off. I find it to be an appropriate case to exercise my powers u/o 1 rule 10 CPC and direct the deletion of Union of India from array of parties. Once the name of Union of India stands deleted the parties in the case at hand and the former civil suit no 95/86 are identical.
52. Now I move on to the second leg of argument regarding the difference in the reliefs claimed in the instant suit and the earlier suit. Apparently there appears to be some variance in the reliefs claimed in the two suits.
53. In the case at hand, the plaintiff is seeking a declaration to the effect that they be declard kastkar/tenant in the suit land and a decree for permanent injunction seeking to restrain the defendants from interfering with the peaceful cultivatory possession of the plaintiffs over the suit land. Whereas in the initial suit for perpetual injunction (suit no. 95/86) plaintiffs sought to restrain the defendants by way of perpetual injunction from destroying the crops of the plaintiff or interfering with or disturbing or forcibly dispossessing the plaintiffs without due process of law and without paying compensation or an alternative site.
54. The issue of permanent injunction in both the suits is identical and has already been adjudicated upon in the earlier suit. The relief of declaration does not finds an explicit mention in the relief clause of the earlier suit. However, the issue of right, title or any interest of the plaintiff in the suit property was directly and substantially in issue in the earlier suit as the entitlement of the plaintiffs to receive compensation or an alternative land in lieu of the suit land could not have been adjudicated upon unless the issue of the right of the plaintiffs in the suit land is adjudicated upon. Consequently, in suit no. 95/86, the foremost issue i.e. issue no. 1 was framed as under: "1. Whether the pltf. has got any right and title in the property in question ? OPP"
55. The said issue was adjudicated upon by a court of competent jurisdiction and vide judgment dated 22.01.1991 in the said suit, the then Ld. Sub Judge has categorically observed that "pltf. have got no legal right in the property in question". Thus it is evident that the issue of right, title or interest of the plaintiffs in the suit property was directly and substantially in issue in the former suit and it is not legally permissible for the plaintiffs to reagitate the same issue by seeking a declaration of their right, title or interest in the suit property by instituting a separate suit.
56. In view of the above, I am of the opinion that the instant suit is barred under the provisions of section 11 CPC. Issue is accordingly decided against the plaintiffs and in favour of the defendant.
Relief.
In the light of my findings on the foregoing issues, the suit of the plaintiffs stands dismissed. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open Court (DHARMENDER RANA) on this 23rd day of December 2014. JSCC/ASCJ/G. Judge (East) KKD COURTS