Delhi District Court
Sh. Jagan Nath vs Dda on 25 May, 2019
IN THE COURT OF MS. SHUCHI LALER,
ADDITIONAL DISTRICT JUDGE, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI.
MCA DJ No. 11/2019
In the matter of:
1. Sh. Jagan Nath
S/o Late Sh. Bhim Singh
2. Sh. Lakhmi Chand
S/o Late Sh. Bhim Singh
Both R/o 755, Jheel Khurenja,
Delhi51
3. Sh. Tej Singh
S/o Late Sh. Panna
4. Sh. Laxman
S/o Late Sh. Panna
Both R/o 675, Jheel Khuranja,
Delhi51 .........Appellants
Versus
DDA
Through its Vice Chairman
INA, Vikas Sadan
New Delhi ......Respondent
MCA DJ No.11/2019 Sh. Jagan Nath & Ors Vs DDA Page No.1 of 10
Date of Institution : 03.05.2018
Date of Final Arguments : 25.05.2019
Date of Pronouncement : 25.05.2019
ORDER
1. The appellants are aggrieved of the order dated 17.03.2018 passed by Ld. JSCC/ASCJ/GJ, East District, Karkardooma Courts, Delhi in case titled as Sh. Jagannath & Others Vs. DDA whereby Ld. Trial Court dismissed the application u/o 39 Rules 1 and 2 CPC filed by the appellants/plaintiffs.
2. For the sake of convenience, parties shall be denoted as they were before Ld. Trial Court. Sh. Jagannath, Sh. Lakhmi Chand, Sh. Tej Singh, Sh. Laxman as plaintiffs whereas the respondent/DDA shall be referred to as the defendant.
3. Trial Court Record has been summoned and the same has been perused.
4. Briefly stated facts, as disclosed in the plaint, are that the plaintiff no. 1 and 2 are in actual physical cultivatory possession of khasra no. 38/20 (29) and plaintiff no. 2 to 4 are in possession of khasra no. 38/21 (89), situated in revenue estate of khureji khas, Delhi51 (hereinafter referred to as suit land) as its owner. The name of the plaintiffs' forefathers is recorded in the revenue record and the plaintiffs MCA DJ No.11/2019 Sh. Jagan Nath & Ors Vs DDA Page No.2 of 10 are in possession of the suit land since the time of their forefathers till date peacefully. It has been alleged that the officials of defendant on 05.04.2017 came at the suit land and threatened to take its forcible possession. Hence, the present suit seeking following reliefs:
(a) A decree of permanent injunction in favour of the plaintiffs and against the defendant and its officials, agency, representatives etc. thereby restraining the defendant from forcibly and illegally dispossessing the plaintiffs from the suit land Khasra No. 38/20, (2-9) Khasra No. 38/21 (8-9) situated in the revenue estate of Village Khureji Khas, Delhi-51, which are specifically shown in red colour in the annexed site plans;
(b) Any other order(s) which this Hon'ble Court deem fit and proper may also be passed in favour of the plaintiffs and against the defendant, in the interest of justice.
5. Defendant filed a detailed written statement wherein it is stated that the suit land does not fall in khasra no. 38/20 and 38/21 of Village Khureji Khas, Delhi whereas the suit property actually falls in khasra number 38 min, Village Chiragh Janubi which is under direct control of DDA by virtue of nazul agreement of year 1937. The defendant is in lawful possession of the suit land. The plaintiffs are alleged to have encroached upon the suit land and are unauthorizedly cultivating the government land. Dismissal of the present suit with costs has MCA DJ No.11/2019 Sh. Jagan Nath & Ors Vs DDA Page No.3 of 10 been prayed for.
6. Replication was duly filed on behalf of plaintiff wherein allegations to the contrary were denied and the averments made in the plaint were reiterated to be true and correct.
7. Ld. Trial Court dismissed the interim application u/o 39 Rule 1 and 2 CPC moved by the plaintiff on 17.03.2018. Aggrieved against the said order, the present appeal has been filed. Notice of appeal was served upon the defendant, however, the defendant has not filed any reply.
8. The aforesaid order dated 17.03.2018 has been challenged by the appellants/plaintiffs on the following grounds:
(a) Ld. Trial Court failed to appreciate the admission of respondent with respect to possession of plaintiffs and even a tresspasser is entitled to protection against forcible dispossession;
(b) There was prima facie case in favour of plaintiffs as their possession is admitted, therefore the question of khasra no. of village can be considered after leading of evidence.
9. Rival submissions advanced at bar have been heard and record perused.
10. The main thrust of argument on behalf of appellants MCA DJ No.11/2019 Sh. Jagan Nath & Ors Vs DDA Page No.4 of 10 is that the factum of their possession qua the suit land being admitted by the defendant, consequently, the plaintiffs were entitled to ad interim injunction against forcible dispossession. The admission regarding possession of plaintiffs qua the suit land is alleged to have been made in para no. 1 of written statement of defendants which reads as under: "1. It is submitted that the plaintiff has concocted a false story in order to grab the government land. It is further submitted that the plaintiff with a malafide intention has contended that the suit property falls in khasra no. 38/20 & 38/21 of village Khureji Khas, Delhi whereas actually the suit property falls in Khasra no. 38 min, Village Chirgah Janubi, which is under the direct control of the Defendant/DDA by virtue of the Nazul agreement of year 1937. It is further submitted that the defendant are in the lawful possession of the suit property being a vacant land. It is further submitted that the plaintiffs have encroached and are a rank trespasser upon the land of answering defendant and are unauthorisedly cultivating upon the government land. It is further submitted that the plaintiff does not have any right, title or interest over the suit property as alleged or at all. Hence, the plaintiff has not come with clean hands to this Hon'ble Court and has suppressed the material facts, which he is legally bound to disclose....."
11 The admission of defendant as made in the aforesaid para has to be considered as a whole and in toto. It cannot be split up and part of it be used in favour of plaintiffs. A reading of aforesaid para reveals that though the defendant has admitted that the plaintiffs are in possession of the suit land, however, the defendant has disputed the identity MCA DJ No.11/2019 Sh. Jagan Nath & Ors Vs DDA Page No.5 of 10 of the suit land by alleging it to be a part of Khasra no. 38, Village Chiragh Janubi. The defendant has further alleged the plaintiffs to be an encroacher upon the Government land.
12. Once the defendant has disputed the identity of the suit land by alleging it to be a part of Khasra no. 38, Village Chiragh Janubi instead of Khasra no. 38/20 and 38/21, Village Khureji Khas, Delhi51, the plaintiffs were duty bound to file on record documents such as Khatauni, Jamabandi, Khasra Girdawri to show that the suit land falls within the Khasra no. 38/20 and 38/21 of Village Khureji Khas, Delhi51. The same has not been done.
13. The solitary document which has been filed on record by the plaintiffs is a copy of Khasra Girdawri which is at page no. 34 of Trial Court Record. Ld. Trial Court has rightly observed that the alleged revenue document is illegible. On reading this document, it cannot be ascertained as to whether it is a Khasra Girdawri and if so, it is of which year and of which Village. On the basis of this sole document, an inference of present possession of the plaintiff qua the suit land forming part of Khasra no. 38/19 and 38/20, Village Khureji Khas, Delhi cannot be drawn.
14. Though the plaintiffs have alleged that they are in cultivatory possession of the suit land since the time of their forefathers, they could not file a single document in support of MCA DJ No.11/2019 Sh. Jagan Nath & Ors Vs DDA Page No.6 of 10 this assertion. The plaintiffs could not show that they are in settled possession of the suit land so as to entitle them to ad interim restraint order against forcible dispossession. The photographs at page no. 2631 of Trial Court Record also cannot establish the identity of the suit property. These photographs merely reflect that the plaintiffs are carrying on cultivation at some land. Ld. Trial Court has correctly observed that the photographs do not reflect that the suit land forms a part of khasra no. 38/20 (29) and Khasra no. 38/21 (89), situated in the revenue estate of Village Khureji Khas, Delhi51.
15. The defendant, on the contrary, has filed the Nazul agreement as well as Jamabandi which show that the khasra no. 38 vests with Government. The plaintiff is alleged to be an encroacher upon the Government land.
16. In case titled as Premji Ratansey Shah and Ors. Vs. Union of India and Ors. 1994(3)SCALE 562 the Hon'ble Supreme Court observed that even assuming that the petitioners had any possession, their possession is wholly unlawful possession of a trespasser and an injunction can not be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner, pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner.
17. Similarly, in Rajinder Kakkar and Ors. Vs. Delhi Development Authority 54(1994) DLT 484 the Hon'ble Delhi MCA DJ No.11/2019 Sh. Jagan Nath & Ors Vs DDA Page No.7 of 10 High Court has held that where a person is an encroacher and never had any right to legal possession of public land, the Courts should not grant any injunction or relief which will have the result of permitting or protecting the continued illegal occupation of public land.
18. Even in case titled as Thomas Cook (India) Ltd. V Hotel Imperial and Others 127 (2006) DLT 431, the Hon'ble Delhi High Court observed in para No. 15, as under :
"15. In our view injunction is an equitable relief and the Court must see whether a person who is a trespasser can seek the helping hand of the Court for protecting his unlawful possession as against the owner. A person who seeks equity must do equity. He must also come to Court with clean hands. When he does these things there will be no occasion for him to seek an injunction in as much as the trespass would have automatically stood vacated. If he does not do these things, he cannot at the same time ask for the helping hand of the Court to protect his illegal possession."
19. Reference may also be made to the judgment of Bakshi Ram V Delhi Development Authority 1995 RLR 67 wherein Hon'ble Delhi High Court held that it is established beyond any reasonable doubt that the petitioner being a trespasser and encroacher of public land is entitled to no relief from this Court. The process of Court would not lend a helping hand to the trespassers and the encroacher of public land.
20. The law laid down in the aforesaid judgments is "mutatis mutandis" applicable to factual matrix of the present case. Though, the plaintiffs are admitted to be in possession of MCA DJ No.11/2019 Sh. Jagan Nath & Ors Vs DDA Page No.8 of 10 suit land, the defendant has alleged them to be a trespasser on DDA land, consequently, plaintiffs are not entitled to invoke equitable jurisdiction of this Court. The plaintiffs have not produced any document showing their possession / cultivatory possession of the suit land being recorded in the revenue records. The conduct of the plaintiffs is such that they are not entitled to discretionary and equitable relief of injunction.
21. Ld. Counsel for appellants referring to the judgment of Hon'ble Supreme Court in Meghmala & Ors Vs G. Narasimha Reddy & Ors, 2011 (3) Civil Court Cases 006 (S.C.), submitted that the plaintiffs are in admitted possession of the suit property and they cannot be dispossessed except by due process of law. He further contended that courts cannot permit any person including Government to take law into its hands and dispossess a person in actual possession without having recourse to due process of law.
22. The facts of Meghmala & Ors (Supra) and the case at hand are palpably different. In Meghmala & Ors (Supra), there was a registered sale deed in favour of the appellant. In the present case, the plaintiffs have not filed a single document to show their title or possession qua the suit land. When the plaintiffs are unable to prima facie show their possession qua the suit land which is asserted to be a part of Khasra No. 38/20 and 38/21 Village Khureji Khas, they are not entitled to ad interim injunction against forcible dispossession.
MCA DJ No.11/2019 Sh. Jagan Nath & Ors Vs DDA Page No.9 of 10 Conclusion In view of aforesaid reasons and findings, there is no illegality or perversity in the impugned order. The order of Ld. Trial Court dated 17.03.2018 is upheld. The instant appeal is hereby dismissed. No order as to cost.
A copy of this judgment along with trial court record be sent back to concerned Court after completion of necessary formalities.
Appeal File be consigned to Record Room.
Announced in the open court
on this 25th May, 2019 (SHUCHI LALER)
ADJ04, (East District)
KKD Courts, Delhi.
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