Delhi District Court
Through: The Vice Chairman vs Banarsi Lal (Since Deceased & ... on 16 September, 2015
Sh. Gorakh Nath Pandey
Additional District Judge (NE),Karkardooma Courts, Delhi.
IN THE COURT OF SH. GORAKH NATH PANDEY
ADDITIONAL DISTRICT JUDGE02 (NE)
KARKARDOOMA COURTS, DELHI
Regular civil appeal No. 09/15
Case I.D. Number : 02402C0089012015
IN THE MATTER OF :
Delhi Development Authority
Vikas Sadan, I. N. A., New Delhi
Through: The Vice Chairman .......Appellant
VERSUS
Banarsi Lal (since deceased & represented
Through his legal heirs)
(1) Sh. Satdev Mehta (since deceased)
and represented though
a. Smt. Beena Mehta
W/o Lt. Sh. Satdev Mehta
RCA No. 09/15
DDA Vs. Banarsi Lal & Ors. page 1 of 34
Sh. Gorakh Nath Pandey
Additional District Judge (NE),Karkardooma Courts, Delhi.
b. Master Sahil
S/o Lt. Sh. Satdev Mehta
Aged about 13 years
c. Kumari Sonali
D/o Lt. Sh. Satdev Mehta
Aged about 13 years
(The legal heirs no. b and c being minors and
represented through their real mother and
natural guardian Smt. Beena Mehta)
(2) Sh. Ghanshyam Mehta
S/o Lt. Sh. Banarasi Lal Mehta
(3) Smt. Kamlesh Mehta
W/o Lt. Sh. Banarasi Lal Mehta
All residents of:
1/4, Rani Garden, Shastri Nagar,
Delhi. ........ Respondents
Date of Institution of Appeal :16.03.2015
Final Arguments heard on :16.09.2015
Date of Judgment/Order :16.09.2015
Decision : Dismissed with cost
RCA No. 09/15
DDA Vs. Banarsi Lal & Ors. page 2 of 34
Sh. Gorakh Nath Pandey
Additional District Judge (NE),Karkardooma Courts, Delhi.
J U D G M E N T
1. The present appeal impugns the judgment and decree dated 12.01.2015 passed by Ld. JSCC/ASCJ/Guardian Judge (NE), Karkardooma Courts in suit No. 352/07 whereby the suit for permanent injunction in respect of property bearing No. 1/9, Rani Garden, Shastri Nagar, Delhi as shown in the site plan Ex. PW3/5 in red colour ( hereinafter called the suit property ) filed by the respondents/ plaintiffs has been decreed and held that defendant no. 1/DDA and its officials are restrained from dispossessing the plaintiffs from the suit property and from demolishing and damaging the suit property without the due process of law.
(The parties herein are referred as per their status before the Ld. Trial Court.)
2. The brief and relevant facts in the background of which the present suit was filed by the respondents who were the plaintiffs in the original suit is reproduced from the impugned judgment as follows: (I) The case of the plaintiff as set up in the plaint is that he purchased a plot of land measuring about 138 sq. yards forming part of Khasra No. 22/24/2 situated in the abadi of village Khureji Khas, Delhi on 15.03.1999 and this property is now more popularly known as 1/9 Rani Garden, RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 3 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. Shastri Nagar, Delhi i.e suit property. A tin shed is in existence on the said plot. Plaintiff has alleged that in the Revenue records the Khasra no. 22/24/2 originally measuring 3 bigha 16 biswas was recorded in the names of Brij Bhushan, Hari Bhushan, Vijay Bhushan and Ved Bhusan, all sons of Lt. Sh. Ram Swaroop. These registered owners thereafter sold the said land in plots of various sizes and through intermittent purchasers and the plaintiff has purchased the suit property for valid consideration and since its purchase the plaintiff is in its possession. Plaintiff has alleged that the Rani Garden Colony has been put in to the list of 1071 colonies slated for regularization. The proceedings to regularize these colonies have already been initiated and the Resident Welfare Association has been asked to submit plains to the department of MCD for finalising the regularization process. However, at that time due to political reasons regularization process was not completed. In the aftermath of the directions of the Hon'ble High Court, the MCD has taken a firm stand to regularize 1071 colonies including Rani Garden. Now since the colony is soon going to be regularized, the land grabbers have waken up to some how harass the genuine residents of the colony so that they are compelled to sell their land to such land grabbers for peanuts and these land grabbers after the colony is regularized would sell such land at whopping RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 4 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. rates and to pocked the margin money. Plaintiff has alleged that in such ulterior motives of these land grabbers, the officials of the defendant have also joined their hands and an interesting scheme has been devised by them. The officials of the defendant have threatened to demolish the property of the plaintiff alleging that it falls in Khasra No. 38 which belongs to the defendant, therefore, they have the right to demolish the plaintiff's property. Plaintiff has further alleged that the officials of the defendant had come to the property of the plaintiff on 14.01.2005 and made unsuccessful attempt to demolish the suit property and when all the residents of the colony had gathered at the spot, the local police had also reached there and DDA officials were asked to show any written orders to demolish the property of the plaintiff, they left the site. Obviously, the defendant has not passed any orders for demolition of the property of the plaintiff nor they can as the property does not belong to the defendant and is owned by the plaintiff. Plaintiff has further alleged that the attempt made on 14.01.2005 was at the behest of the land grabbers and this apprehension was confirmed when the local property dealers of the area visited the plaintiff on 15.01.2005 with an offer that they know few persons who are interested in purchasing the property of the plaintiff inspite of the incident dt. 14.01.2005 and the plaintiff has refused to succumb to such RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 5 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. pressure tactics. Plaintiff has further alleged that suit property falls in Khasra No. 22/24/2 which does not belong to the defendant and the defendant has no right or justification to extend threats of dispossessing the plaintiff from his own property. Since the threats have been extended, attempts have been made to dispossess and further threats have been given to come on 19.01.2005. Hence, the present suit. (II) Defendant no. 1/DDA has contested that the present suit by filing its written statement. The earlier written statement filed was subsequently amended vide Order dt. 23.05.2005 as the earlier written statement was not verified in accordance with law. In the amended WS, DDA has taken preliminary objections that the suit of the plaintiff is not maintainable in view of the provisions of Sec. 55B, DDA Act and Sec. 80 CPC; that the plaintiff or any other persons on his behalf are unauthorized occupants/ encroachers over the suit land, which comes in Khasra 38 min, Mauza Chiragh South and the same has been acquired vide Nazul Agreement of 1937 and the same is at the disposal of DDA and belongs to DDA. Further Khasra No. 22/24/2 as mentioned in the plaintiff is far away from the Khasra no. 38. It has been denied that the officials of the defendant/ DDA had ever extended any sort of threats to the plaintiff. The defendant has admitted that DDA through its staff of DD/LPB/EZ with the help of Delhi RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 6 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. Police tried to demolish the illegal and unauthorized structure over the suit land failing in Khasra 38 min, Mauza Chiragh South, which belongs to DDA on 19.01.2005. Rest of the materail contents of the plaint were denied by the defendant no. 1 in its WS.
(III). Plaintiffs filed the replication to the written statement of the defendant no. 1/DDA and therein he has reiterated the contents of the plaint which are in denial of the plaint in the written statement filed by DDA.
(IV). Following the pleadings of the parties, the following issues were framed by the Ld. Predecessor of this Court view Order dt. 18.09.2007:
(i) Whether the plaintiff is entitled to a decree of permanent injunction as prayed for? OPP
(ii) Whether the plaintiff has no locus standi to file the present suit? OPD
(iii) Whether the suit of the plaintiff is not maintainable in view of the provisions of Sec. 53B, DDA Act and Sec. 80, CPC? OPD
(iv) Relief.
RCA No. 09/15
DDA Vs. Banarsi Lal & Ors. page 7 of 34
Sh. Gorakh Nath Pandey
Additional District Judge (NE),Karkardooma Courts, Delhi.
3. The appellant has preferred the instant appeal on the ground that the impugned judgment and decree dated 12.01.2015 is not sustainable in law and facts and is passed without application of judicial mind. It is further contended that the impugned judgment and decree is not passed on the basis of the admitted and proved facts and the judgment suffers from illegality and infirmity. As mentioned the Ld. Trial Court failed to appreciate the correct facts of the case and relevant materials on record that by way of the suit, the respondents sought declaration to encroach the government land and merely the suit for permanent injunction is not maintainable. It is claimed by the appellant that suit property falls in Khasra No. 38, Chiragh South and there is no basis for this finding as no demarcation repost has been filed by any of the parties. It is further mentioned that the plaintiff failed to produce the complete chain of documents regarding purchase of the property and the plaintiff categorically failed to prove that the suit property falls in Khasra No. 22/24/2. As contended the Ld. Trial Court failed to appreciate the facts and reached to wrong conclusion; the Ld. Trial Judge has not applied his mind and disposed off the suits without following due process of law and considering the relevant aspects. This appeal is filed praying to set aside the impugned judgment and decree.
RCA No. 09/15
DDA Vs. Banarsi Lal & Ors. page 8 of 34
Sh. Gorakh Nath Pandey
Additional District Judge (NE),Karkardooma Courts, Delhi. 4 The respondents who contested the appeal did not wish to file reply to the appeal and supported the impugned judgment and decree.
5. I have considered the rival contentions on behalf of the parties and also gone through the Trial Court records. I have also considered the relevant provisions of law.
6. Alongwith the appeal an application U/s 5 of the Limitation Act has been filed by the appellant for condonation of delay of 23 days in filing this appeal on the ground that after receipt of the certified copy of judgment, the file was sent to the Penal Lawyers and it took time in completing the official formalities before filing of this appeal. It is further argued that appellant being a Government Agency immediate sanction and permission from the concerned authorities before filing of this appeal.
The respondents by way of reply to the application denied the contentions of the appellant claiming that there is no merit in the application which is liable to be dismissed with cost. The respondents further prayed to dismiss the appeal in barred by Limitation.
Condonation of Delay
7. Before disposing of appeal, I propose to adjudicate upon the application of the appellant U/S 5 of the Limitation Act for condonation of delay in filing the appeal. Section 5 of the Limitation Act contend the RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 9 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. provision for extension of prescribed period of limitation in certain cases is reproduced herein for reference:
5.Extension of prescribed period in certain cases Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 ( 5 of 1908) may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.
Explanation The fact that the appellant or the applicant was misled by any order, practice or judgment or the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
8. The prescribed period of Limitation for filing the appeal is 30 days from the date of the decree in view of Article 116 of the schedule of Limitation Act, 1963. Under Section 5 of the Limitation Act, the delay in filing the application may be condoned and an application may be admitted after the prescribed period of the limitation if the applicant satisfies the Court that he had sufficient cause for not making the application within such period.
RCA No. 09/15
DDA Vs. Banarsi Lal & Ors. page 10 of 34
Sh. Gorakh Nath Pandey
Additional District Judge (NE),Karkardooma Courts, Delhi.
9. It is well settled principle of law that while dealing an application for condonation of delay in filing application, the court shall adopt liberal approach and the expression "sufficient cause" is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the live purpose for existence of the institution of the courts and in this regard the judgment of Hon'ble Supreme Court in Collector, Land Acquisition, Anantnag vs. Mst. Katiji AIR 1987 SUPREME COURT1353 can be referred to and para 3 of the judgment reads as under: "The legislature has conferred the power to condone delay by enacting Section 5 "Any appeal or any application,other than an application under any of the provisions of Order XXI of the Civil Procedure Code,1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period." of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression "sufficient cause"employed by RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 11 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters, instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:
Ordinarily a litigant does not stand to benefit by lodging an appeal late. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay every second's delay ? The doctrine must be applied in a rational common sense pragmatic manner. When RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 12 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. substantial justice and technical considerations are pitted against each other,cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so."
10. In this regard another judgment of the Hon'ble Supreme Court in State of Haryana vs. Chandra Mani AIR 1996 1623 is also relevant for reference and para no. 6 and 7 of the judgment read as under:
"6. In O.P Kathpalia v.Lakhmir Singh (dead), (1984) 4 SCC 66 : (AIR 1984 SC 1744), a Bench of three Judges had held that if the refusal to condone the delay results in grave miscarriage of justice, it would be a ground to condone the delay.Delay was accordingly RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 13 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. condoned. In Collector, Land Acquisition, Anantnag v. Mst. Katiji, (1987) 2 SCC 107 : (AIR 1987 SC 1353), a Bench of two Judges considered the question of the limitation in an appeal filed by the State and held that Section 5 was enacted in order to enable the Court to do substantial justice to the parties by disposing of matters on merits. The expression "sufficient cause" is adequately elastic to enable the Court to apply the law in a meaningful manner which subserves the ends of the justice that being the life purpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other Courts in the hierarchy. This Court reiterated that the expression "every day's delay must be explained' does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 14 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non deliberate delay. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of malafides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. Judiciary is not respected on account of its power to legalise justice on technical grounds but because it is capable of removing injustice and is expected to do so.
Making a justiceoriented approach from this perspective, there was sufficient cause for condoning the delay in the institution of the appeal. The fact that it was the State which was seeking condonation and not a private party was altogether irrelevant. The doctrine of equality before the law demands that all litigants, including the State as a litigant, are accorded the same treatment and the law is administered in an even handed manner. There is no warrant for according a stepmotherly treatment when RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 15 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. the State is the applicant. The delay was accordingly condoned. Experience shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note making, fileushing, and passingontheuck ethos, delay on its part is less ifficult to understand though more difficult to approve. The State which represent collective cause of the community, does not deserve a litigantongrata status. The Courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal. Delay was accordingly condoned, the order was set aside and the matter was remitted to the High Court for disposal on merits after affording opportunity of hearing to the parties. In Smt. Prabha v. Ram Parkash Kalra, (1987) RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 16 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. Supp SCC 338 : (AIR 1987SC1726), this Court had held that the Court should not adopt an injustice oriented approach in rejecting the application for condonation of delay. The appeal was allowed, the delay was condoned and the matter was remitted for expeditious disposal in accordance with law."
11. This court is required to apply the law in a meaningful manner which subserves the ends of justice, which is the life purpose for existence of the court. In the facts and circumstances of the case and to do substantial justice between the parties, as held by the Hon'ble Supreme Court in Mst. Katiji's case (supra) and Chandra Mani's case (supra), the delay in filing the appeal is hereby condoned.
Adjudication on merits
12. To appreciate the rival contentions of the parties, it is necessary to refer relevant provisions of law regarding injunction i.e. Section 38 of Specific Relief Act, 1963 which is as below: Section 38. Perpetual injunction when granted. (1) Subject to the other provisions contained in or referred to by this chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication. RCA No. 09/15
DDA Vs. Banarsi Lal & Ors. page 17 of 34
Sh. Gorakh Nath Pandey
Additional District Judge (NE),Karkardooma Courts, Delhi.
13. Section 38 of Specific Relief Act enables the court to grant perpetual injunction to prevent the breach of an obligation existing in favour of applicant, whether expressed or implied. Meaningly, the question is to be examined as to whether there exists an obligation in favour of the applicant and if the answer is in affirmative and the case falls within the ambit of Section 41 of the Specific Relief Act an injunction cannot be granted. It is also necessary to mention that rights and obligations are corollary each other and the right places a correspondence duty also for its existence. The injunction is a discretionary relief and its grant of refusal depends upon the circumstances and facts of a particular case. The discretion has to be reasonable guided by judicial principles and law. It must not be arbitrary, vague and fanciful. Section 41 of the Specific Relief Act enumerates the cases where an injunction will be denied.
14. As held in JT 1994 (6) SC 588 , interest of right not shown to be in existence cannot be protected by injunction. Issuance of order of an injunction is absolutely discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41 (j) of the Specific Relief Act, 1963 and the plaintiff must have personal interest RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 18 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. in the matter. The interest or right not shown to be in existence cannot be protected by injunction.
15. It is well settled that a suit has to be tried on the basis of the pleadings of the contesting parties which is filed in the suit before the trial court in the form of plaint and written statement and the nucleus of the case of the plaintiff and the contesting case of the defendant in the form of issues emerges out of that. Being a civil suit for injunction, this suit is to be decided on the basis of preponderance of probabilities. As held in Raj Kumar Singh & Anr. Vs. Jagjit Chawla, reported in 183 (2011) DLT 418, "A civil case is decided on balance of probabilities. In the case of Vishnu Dutt Sharma Vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
'' 8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case visavis a civil RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 19 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
16. Section 101 of the Evidence Act, 1872 defines " burden of proof" and laid down that the burden of proving a fact always lying upon the person who asserts the facts. Until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. Until he arrives at such conclusion, he cannot proceed on the basis of weakness of other party. In view of Section 103 of Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lied on any particular person. Further, Section 58 of the Indian Evidence Act contained that no fact need to be proved in any proceedings which parties thereto or their agents agree to admit at the herein, or which, before the hearing, they agree to admit by any writing under their hands or which by RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 20 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. any rule of pleadings enforce at the time they are deemed to have admitted by their pleadings. As held in judgment reported as Uttam Chand Kothari Vs. Gauri Shankar Jalan, AIR 2007 Gau. 20, admission in the written statement cannot be allowed to be withdrawn. In view of this legal position of the Evidence Act, it is clear that it is for the appellant to prove that the suit property falls in Khasra no. 38 and is owned by it.
17. The issues framed in the suit have been mentioned above. The issue No. I has been decided in favour of the plaintiffs/respondents. As the plaintiffs were found in possession of the suit property, injunction was granted in their favour. The plaintiffs claimed the ownership of the suit property being situated in Khasra No. 22/24/2 and the ownership is denied by the defendants on the ground that the suit property falls in Khasra no. 38 and belongs to the defendants. It is not disputed at all nor averred that plaintiffs are not the owner of the property situated in Khasra no. 22/24/2 as claimed. In this simplicitor suit for injunction, examination of the ownership is beyond the domain of the suit. As observed, the issue no. 1 regarding the locus standi of the plaintiffs was framed in view of the objections of the defendant in the written statement that the suit property falls in Khasra no. 38 and belongs to the defendants. It is noted that the onus to prove the issue no. 2 was on the defendants. As rightly noted by RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 21 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. the Ld. Trial court, no steps have been taken by the defendants to prove either regarding demarcation of the suit property or to prove the fact that the same falls in Khasra no. 38. Admittedly, plaintiffs being in possession were tried to be dispossessed by the defendants without following the legal provisions. The plaintiffs have placed on record relevant documents in support of contentions of ownership and are admittedly in settled possession by no stretch no imagination it can be considered that if the suit property does not fall in Khasra no. 22/24/2 as the plaintiffs fails to prove the same, the suit property falls in Khasra no. 38, as claimed by the defendants. As proved from the testimony of DW1 itself both Khasra no. 38 and 22/24/2 are adjacent to each other and therefore in view of absence of demarcation, it cannot be said that it falls in Khasra no. 38. Moreover, even it falls in Khasra no. 38, the defendants cannot be permitted to take law in their hands and dispossess the plaintiffs forcefully or illegally without following the due process of law. In this case, as proved from the records, the defendants have not followed the due process of law at all for dispossession and therefore the findings of Ld. Trial Court does not appear to suffer from any illegality or infirmity.
18. It is reiterated that the finding of the Ld. Trial Court on issue No. III is not challenged before this Court. Even otherwise there is not infirmity in RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 22 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. the impugned judgment in this respect. It appears that by way of this appeal, the appellant is mainly aggrieved from the decree of permanent injunction passed against them restraining them from dispossessing the plaintiff from the suit premises without following due process of law. From the materials on record and the testimony of the witnesses, it is proved that the respondents are in settled possession. Ld. Counsel for the appellant vehemently argued that by way of this simplicitor suit of injunction, the plaintiffs/respondents are seeking the relief of declaration regarding the suit property and therefore, this suit is not maintainable. This contention of Ld. Counsel for appellant appears to have no substance. The suit was filed by the plaintiffs as the defendants tried to dispossess them from the suit property forcefully and illegally without following due process of law.
19. I have gone through the judgment reported as AIR 2008 SC 2033 wherein the scope of a suit for permanent injunction was examined by Hon'ble Supreme Court in detail and the position in regards to the suits for prohibitory injunction relating to immovable property is summarized as under:
(i) Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 23 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. 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 plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simplicitor.
(ii) As a suit for injunction simplicitor 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 the 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.
(iii) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 24 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. 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 orrender a finding on a wuestion 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.
(iv) 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 RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 25 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. 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 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.
It was further held while answering the scope of the suit for permanent injunction relating to immovable property, the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief are well settled. It is mentioned: 11.1 Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simplicitor will lie. A person has a right to protect his possession against any person who does not prove a RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 26 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. better title by seeking a prohibitory injunction. But a person in lawful possession is not entitled to an injunction against the rightful owner.
11.2 Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simplicitor, without claiming the relief of possession.
11.3. Where the plaintiff is in possession but his entitled to the property in dispute, or under a cloud, or where a defendant asserts a title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction. The ratio of the judgment is squarely applicable in the facts and circumstances of the case and the suit of the plaintiffs for permanent RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 27 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. injunction is found to be maintainable.
20. As held in Subhra Mukharjee Vs. Bharat Coking Coal Ltd., AIR 2000 SC 1203, the party which makes the allegation must prove it. As held in AIR 1997 Calcutta 120, the burden lies upon the party who challenges the entry to establish by unimpeachable evidence that entry was erroneous. It is necessary to note that the appellant has not taken any steps to prove that the suit property falls in Khasra no. 38. The appellant has failed to produce any oral or documentary evidence to prove the contrary. Undisputedly, the burden lies on the appellant/defendant No. 1 to establish such facts.
21. I have gone through the judgment reported as (2003) 8 SCC 752. As held: Whether a civil or a criminal case, the anvil of testing of " proved", " disproved" and " not proved" as defined in Section 3 of the Indian Evidence Act, 1872 is one and the same. It is the valuation of the result drawn by the applicability of the rule contained in Section 3 of the Evidence Act, 1872 that makes the difference. In a suit for possession of property based on title, if the plaintiff creates a high degree of probability of his title to RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 28 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. ownership, instead of proving his title beyond any reasonable doubts, that would be enough to shift the onus on the defendant. If the defendant fails to shift back the onus, the plaintiffs burden of proof would stand discharged so as to amount to proof of the plaintiff's title.
The present case being a civil one, the plaintiff could not be expected to prove his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus the plaintiff's burden of proof can safely be deemed to have been discharged. In the opinion of this Court the plaintiff has succeeded in shifting the onus on the defendant and therefore, the burden of proof which lay on the plaintiff had stood discharged. The ratio of the judgment is squarely applicable in the facts and circumstances of this case.
22. As mentioned the plaintiffs have filed the suit seeking permanent injunction for restraining the defendants, employees, agents, officials etc. from dispossessing and demolishing the suit property i.e. bearing No. 1/9, Rani Garden, Shastri Nagar, Delhi as shown in red color in the site plan RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 29 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. Ex. PW3/5. The evidence of the plaintiffs led before Ld. Trial Court was somehow on the similar lines as contended in the plaint. From the materials on record and the testimony of the witnesses, it is proved that plaintiffs are in possession of the suit property. Further, the possession of the plaintiffs/ respondents with respect to the property in question is also admitted by the appellant/defendant No. 1. There is nothing on record to infer that the possession by the respondents /plaintiffs is illegal or unlawful as the appellant/defendant No. 1 categorically failed to prove the same and discharge the onus.
23. The next question is to be examined as to whether the appellant can be permitted to throw out the respondents in settled possession, forcibly or illegally without following due process of law ? By no stretch of imagination the possession of the respondents can be considered as illegal or unauthorized as nothing is proved in this regard. There is no document on record to show that defendant no. 1 ever issued any notice that they have encroached the suit property nor they were asked to vacate the property as the respondents are in settled possession and using the property in question.
24. The appellant cannot be permitted to take law in his own hands and illegally and forcibly dispossess the respondent from the suit property RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 30 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. without following the procedure of law. The possession is the nine points of law. As held by the Hon'ble Supreme Court in re 1997 (3) SCC 169 , law respects possession even if there is no valid title to support it. Law does not permit any person to take law into hands and dispossess a person in actual possession without having recourse to a court. The object thereby is to encourage compliance of the rule of law and to deprive the person who wanted a person in lawful possession removed from possession according to proper form and to prevent him from going with a high band and eject such person. Undoubtedly, the true owner is entitled to retain possession even though he had obtained it by force or by other unlawful means but that would not be a ground to permit the owner to take the law in his own hands and eject the person in settled possession without following due process of law.
25. Hon'ble High Court of Delhi in re Rajendra Nath Gupta Vs. Ravindra Nath Gupta ( CSOS 1183/2010) held that once a person is found to be in a settled possession of an immovable property, the remedy available to the aggrieved person is to initiate appropriate legal proceedings to regain the possession alleged to have been unlawfully obtained from him. A person in settled possession cannot be dispossessed from the property occupied by him except by due process of law.
RCA No. 09/15
DDA Vs. Banarsi Lal & Ors. page 31 of 34
Sh. Gorakh Nath Pandey
Additional District Judge (NE),Karkardooma Courts, Delhi. The Hon'ble Court has relied on " Rame Gowda Vs M. Varadappa Naidu & Anr" (2004) 1 SCC 769 wherein the Hon'ble Supreme Court held that settled possession or effective possession of a person without title entitles him to protect his possession evern against a true owner. In taking this view, the Court relied upon its earlier decision in ' Munshi Ram Vs. Delhi Admn', AIR 1968 SC 702 CS (OS) No. 1183/2010 page 7 of 10 where it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and unless he is evicted in due process of law, he is entitled to defend his possession even against the rightful owner. During the course of the judgment it was observed that if the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse of law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will aid a person who is in peaceful and settled possession by granting injunction to him even against the rightful owner restraining the owner from using force or taking law in his own hands. The rightful owner of the property is entitled even to use reasonable force to thwart an attempt to trespass upon his property when the trespass is being committed and he did not have enough time to take recourse to law. An RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 32 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. act of trespass or a possession which has not matured into settled possession can be obstructed or removed by the true owner even by using necessary force, but, once the possession has culminated into a settled possession, the only remedy available to the rightful owner of the property is to take recourse to the process of law, to evict the trespasser.
26. The testimony of the PWs, DWs and the pleadings of the parties established that the suit property is in possession of the plaintiffs/respondents. From the testimony of witnesses and documents on record it has proved that respondents are in settled possession which is effective, undisturbed and within the knowledge of the appellant. The possession of the respondents is neither unlawful nor illegal. The appellant therefore cannot be permitted to take law in hands and dispossess the respondents forcefully and illegally without following due process of law. The Ld. Trial Court has examined the issues framed in the suit in proper perspective. Mere oral averments by the appellant is not sufficient to deny claim of the plaintiffs/respondents. This court does not find any illegality or infirmity in the impugned judgment and decree dated 12.01.2015 which is well reasoned/correct appreciation of facts and in accordance with the provisions of law. The impugned judgment is therefore entitled to be upheld. There is no merit or substance in the RCA No. 09/15 DDA Vs. Banarsi Lal & Ors. page 33 of 34 Sh. Gorakh Nath Pandey Additional District Judge (NE),Karkardooma Courts, Delhi. appeal which is liable to be dismissed. The appeal is therefore dismissed with cost.
27. Decree sheet be drawn accordingly.
28. Trial Court record be sent to the concerned court along with copy of this judgment.
29. Appeal file be consigned to record room.
Announced in open Court th on this 16 day of September, 2015 Gorakh Nath Pandey Addl. District Judge02 (NE) Karkardooma Courts, Delhi.
RCA No. 09/15
DDA Vs. Banarsi Lal & Ors. page 34 of 34