Delhi District Court
Shri Bhupender Singh vs Shri Moti Lal on 11 January, 2022
IN THE COURT OF SENIOR CIVIL JUDGE CUM RENT
CONTROLLER (WEST), TIS HAZARI COURTS, DELHI
Presided by : Ms. Susheel Bala Dagar
CS SCJ 609445/16
CNR Number : DLWT030001122008
Shri Bhupender Singh
S/o Shri Tansukh Rai
R/o B672, J.J. Colony,
Budh Nagar, Inderpuri,
New Delhi110012. ...........Plaintiff
Versus
1.Shri Moti Lal S/o Shri Daulat Ram R/o A308, J.J. Colony, Budh Nagar, Inderpuri, New Delhi110012
2. Shri Ganga Ram (Not impleaded as defendant by the Court vide S/o Shri Bansi Ram order dated 19.11.2011) R/o B672, J.J. Colony, Budh Nagar, Inderpuri, New Delhi110012. ............Defendants Date of Institution : 30.07.2008 Date on which order was reserved : 11.01.2022 Date of pronouncing order : 11.01.2022 SUIT FOR MANDATORY INJUNCTION, RECOVERY OF POSSESSION WITH MESNE PROFITS & DECLARATION Judgment
1. The present suit is filed by the plaintiff for mandatory injunction, recovery of possession with mesne profits & declaration. Plaintiff is seeking decree of mandatory injunction in his favour and against the defendant CS SCJ 609445/16 Bhupinder Singh v. Moti Lal PageDigitally No.1 ofsigned 15 by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2022.01.11 DAGAR 17:01:26 +0530 restraining from creating any third party interest or transfer of any right, title or interest or mortgage etc. of the suit property bearing no. B672, Budh Nagar, J.J. Colony, Inderpuri, New Delhi110012 more specifically shown in red colour in the site plan attached.
Plaintiff is also seeking a decree of possession of the suit property in his favour and a decree of mesne profits and damages for the tune of Rs. 10,000/ per month w.e.f. 01.09.2008 till the date of restoration of the possession of the plaintiff and against the defendant to pay damages with interest @ 24% p.a. on the total calculation incurred on the restoration of the possession.
Plaintiff is further seeking a decree of declaration as absolute owner of the suit property and direction to nullify all the notarized documents of ownership produced by the defendant.
Brief facts of the case as per the plaint are as under:
2. The case of the plaintiff is that in the suit property was allotted by the MCD to the plaintiff's uncle (phupha) Shri Bansi Lal who was the father of performa defendant no. 2 Shri Ganga Ram. Shri Bansi Lal executed a registered GPA in the name of the plaintiff as well as his son Shri Ganga Ram i.e. defendant no. 2. The original GPA was misplaced. The building of the suit property was in dilapidated condition so the plaintiff and defendant no. 2 were not living there but the possession and the control was with the plaintiff, when he left to Uttar Pradesh for some business purpose. It is the case of the plaintiff that the defendant trespassed in the property and hence, the present suit was filed. During the pendency of the suit, the defendant no. 2 got expired.
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3. The WS was filed by the defendant claiming himself to be the purchaser of the suit property by way GPA sale from the previous owner Smt. Santosh Sanwaria. It is submitted by the defendant that late Roshan Singh was the allottee of the suit property and Shri Bansi Lal was not the allottee as claimed by the plaintiff.
4. During the pendency of the suit, an application under Order 6 Rule 17 CPC was moved by the plaintiff for bringing on record the new development which was allowed by the Ld. Predecessor of the Court. It is submitted that Shri Bansi Lal died at the age of 86 years and his son died at the age of 29 years in a road accident. The mother of the defendant no. 2 died on 14.09.2010. When the plaintiff visited the house of defendant no. 2 with his father on 02.08.2012 at Village Nangla Modi, Ghaziabad, the plaintiff found the Will dated 20.02.1985 with some old photographs etc in their house. The pleadings regarding the same were made in the replication. Further, the plaintiff submitted that through RTI he came to know that any sale, purchase are prohibited in the area where the suit property is situated. The said RTI and the Will were taken on record. The further prayer of the plaintiff regarding the passing of decree in favour of the plaintiff as absolute owner of the suit property on the basis of the Will was also taken on record by virtue of the application under Order 6 Rule 17 CPC by the Ld. Predecessor of the Court.
5. Accordingly, the suit of the plaintiff has been filed seeking mandatory injunction, recovery of possession with mesne profit and declaration of ownership of suit property in his favour. Thereafter, the following issues were framed by the Ld. Predecessor vide order dated 24.02.2015.
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Issue no. 1 Whether the plaintiff is entitled for decree of mandatory injunction thereby restraining the defendant from creating any third party interest in the suit property or transferring the right, title or interest of the suit property? OPP.
Issue no. 2 Whether the plaintiff is entitled to decree of possession with respect to the suit property? OPP.
Issue no. 3 Whether the plaintiff is entitled to recovery of mesne profit and damages @ 10,000/ per month w.e.f. 01.09.2008 till the possession is handed over to the plaintiff? OPP.
Issue no. 4 Whether the plaintiff is entitled to decree of declaration declaring the plaintiff Shri Ganga Ram as the absolute owner of the suit property? OPP.
Issue no. 5 Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD Issue no. 6 Relief.
Vide order dated 22.09.2015, the issue no. 4 was corrected as under :
Issue no. 4 Whether the plaintiff is entitled to decree of declaration in favour of the plaintiff as absolute owner of the suit property? OPP.
6. The matter was listed for plaintiff evidence for 01.12.2015. However, on 01.12.2015 and on 17.12.2016, the plaintiff sought adjournment. Thereafter, on 29.04.2016 evidence by way of affidavit was filed by the plaintiff. Thereafter, plaintiff did not tender his evidence by way of affidavit on the ground of non availability of his Counsel despite being present in the Court. Accordingly, the opportunity for plaintiff evidence was closed by the CS SCJ 609445/16 Bhupinder Singh v. Moti Lal Page No.4 of 15 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2022.01.11 DAGAR 17:02:00 +0530 Ld. Predecessor of the Court on 13.09.2017. The defendant also did not lead any evidence.
7. The plaintiff moved an application under Order 18 Rule 17 CPC. Thereafter the matter was listed for arguments on the application under Order 18 Rule 17 CPC. At the time of arguments on the application under Order 18 Rule 17 CPC it was pointed out by the Ld. Counsel for defendant that the plaintiff filed the present suit as attorney of his uncle Shri Bansi Lal who expired on 22.06.2009. The plaintiff stated that there is a Will in favour the plaintiff for which he had filed probate petition before the Dwarka Courts. However, till date the probate petition has not been decided. On 28.10.2021 Ld. Counsel for the defendant pointed out that even if presumably the probate petition is decided in favour of the plaintiff then also this suit has to be decided on its own merits as it is for the Civil Court to decided the ownership of the suit property.
8. Thereafter a preliminary issue regarding the survival of cause of action and maintainability of the present suit after the death of Shri Bansi Lal was framed which the Ld. Counsel for defendant after part arguments conceded that the cause of action survives as the suit has to be decided on its own merits by the Civil Courts. The matter was proceeded with and listed for arguments on the application under Order 18 Rule 17 CPC. At the stage of arguments, it was pointed out by both the parties that the suit property has been allotted by MCD, Slum J.J. Board which is presently the DUSIB. Plaintiff averred that there is one letter dated 08.06.2006 filed on 03.11.2008 of MCD Slum J.J. Department MCD office of the Deputy Director, New Zone as per which the property no. B672, J.J. Colony, Inder CS SCJ 609445/16 Bhupinder Singh v. Moti Lal Page No.5 of 15 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
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Puri has been allotted on licence basis to one Shri Bansi S/o Shri Jhoolu vide allotment no. 17052 Book No. 6, Licence No. 84 dated 05.03.1965 (As per file available in record). But as per the site register plot no. B672, J.J. Colony, Inder Puri allotted in the name of Shr Roshan Singh S/o See Ram date of allotment 27.1.1964 (copy enclosed). Further, it it mentioned the plots allotted under JJ scheme are not transferable by way of sale/ purchase.
9. Perusal of the prayer clause showed that the plaintiff has filed the suit for declaration of ownership of the suit property as one of the relief. As the property is stated to have been allotted by Slum J.J. Department/ DUSIB, a status report was called from the DUSIB on the following points :
1. Who is the owner of the property bearing no. B672, J.J. Colony, Budh Nagar, Inderpuri, New Delhi110012 i.e. suit property which is admitted to have been allotted by DUSIB by both the parties to the suit.
2. To whom was the above mentioned suit property allotted by Slum J.J. Department/ DUSIB alongwith the documents of such allotment.
3. Who is presently in occupation of the suit property and in what capacity.
4. To whom was the possession of the suit property handed over by the Slum J.J. Department/ DUSIB.
10. Report has been filed by the Ld. Counsel for DUSIB by way of email on the email address of the Court on 10.01.2022. It has been submitted by DUSIB that the property bearing no. B672 (25 sq. yards) Budh Nagar, Inderpuri, J.J. Colony, Delhi was allotted in the name of Shri Bansi S/o Shri Jhoolu on license fee basis vide allotment letter no. 17052 book no. 8 and license no. 84 dated 05.03.1965 (copy enclosed). As per site register, the CS SCJ 609445/16 Bhupinder Singh v. Moti Lal Page No.6 of 15 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
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property bearing no. B672, (25 sq. yards) Budh Nagar, Inderpuri J.J. Colony, Delhi, shows it in the name of Shri Roshan Singh S/o Shri Seo Ram, date of allotment 27.11.1964 (copy enclosed). However, allotment letter is an authentic document and allotment may be considered in the name of Shri Bansi Lal S/o Shri Jhoolu, site register is an unsigned document. As per survey report issued by Director (T.P.) DUSIB, as per local enquiry by survey staff, Shri Moti Lal S/o Shri Daulat Ram is presently in occupation of the suit property bearing no. B672, Budh Nagar, Inderpuri J.J. Colony, Delhi. He is stated to be an unauthorized occupant. Further, it is reported that the possession slip is not available in record. However, it may be considered to have been handed over to the allottee only.
11. Hence, from the submissions of the plaintiff as well as the defendant as well as report filed by Ld. Counsel for DUSIB, it is admitted case of the parties that the suit property has been allotted on 27.11.1964 to late Shri Bansi Lal on licence basis whereas as per allotment letter no. 17052 but as per site register the property bearing no. B672, (25 sq. yards) Budh Nagar, Inderpuri J.J. Colony, Delhi shows in the name of Shri Roshan Singh S/o Shri Seo Ram.
12. In view of submissions made by the parties and the admitted position, it is clear that the ownership of the suit property is with the DUSIB and none of the parties can claim themselves to be declared owners of the suit property, they can only be mere allottees. It is clear that there is no need of leading any evidence by the parties for adjudication of the issues framed in this matter when the same can be decided on the basis of averments and admission of the plaintiff himself. Moreover, ample opportunity had already CS SCJ 609445/16 Bhupinder Singh v. Moti Lal Page No.7 of 15 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
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been provided by the Ld. Predecessor to the plaintiff to tender his evidence affidavit and appear for cross examination, but the plaintiff failed to do so. Accordingly, the application under Order 18 Rule 17 CPC moved on behalf of the plaintiff stands dismissed on the basis of documents on record and the submissions made by the parties on record.
Court observations and findings
13. Furthermore, the contents of the plaint are germane for exercising the power under Order 7 Rule 11 CPC. This power can be exercised at any stage of the proceedings and even suo motu by the Court. Before proceeding further, it is necessary to go through the relevant provision of the DUSIB Act. Section 49 of the Act reads as under: "49. Protection of action taken in good faith - No suit or other legal proceeding shall lie, instituted in any Court against the Board or against any person or authority acting under the direction of any officer or other employee of the Board for anything which is in good faith done or intended to be done in pursuance of the provisions of this Act or the rules or regulations made thereunder.
14. Further, Section 37A of the Slum Area (Improvement and Clearance Act) 1956 is also reproduced as under :
"Section 37A : Bar of Jurisdiction - Save as otherwise expressly provided in this Act, no civil Court shall have jurisdiction in respect of any matter which the competent authority or any other person is empowered by or under this Act, to determine and no injunction shall be granted by any Court or to be taken in pursuance of any power conferred by or under this Act."
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15. A simultaneous reading of the aforesaid provisions reveal that Section 49 of the DUSIB Act as well as Section 37A of the Slum Area (Improvement and Clearance Act) 1956 expressly bars the Civil Court from entertaining any suit or proceeding in respect of any matter/ property which pertains to DUSIB or which falls under the slum area.
16. It is the admitted case of the plaintiff that the suit property has been shown to be allotted in the name of Shri Bansi S/o Shri Jhoolu on license fee basis vide allotment letter no. 17052 book no. 8 and license no. 84 dated 05.03.1965. Further, it is also admitted that as per site register, the property bearing no. B672, (25 sq. yards) Budh Nagar, Inderpuri J.J. Colony, Delhi, shows it in the name of Shri Roshan Singh S/o Shri Seo Ram, date of allotment 27.11.1964. The documents in this regard have been himself filed and referred by the plaintiff. Hence, in case there was any dispute arise regarding the allotment due to the documents which are maintained with the DUSIB, the appropriate authority to be approached by the plaintiff was the DUSIB in view of the above Sections.
17. However, even on merits on the basis of submissions made by the parties, my issues wise findings are as under. For the sake of convenience, the issue no. 4 is taken up first.
Issue no. 4 Whether the plaintiff is entitled to decree of declaration in favour of the plaintiff as absolute owner of the suit property? OPP.
18. It is settled principle of law that no one can transfer a better title then he himself has. In the present case, it is admitted case of the plaintiff that Shri Bani Lal was a allottee on licence basis of the suit property from MCD Delhi under Jhuggi Jhopri Resettlement Scheme. A mere licencee only on CS SCJ 609445/16 Bhupinder Singh v. Moti Lal Page No.9 of 15 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
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the basis of a Will cannot transferred a better title to the plaintiff of being absolute owner of the suit property. Hence, this issue is decided against the plaintiff.
Issue no. 1 Whether the plaintiff is entitled for decree of mandatory injunction thereby restraining the defendant from creating any third party interest in the suit property or transferring the right, title or interest of the suit property? OPP.
19. The remedy of injunction is a discretionary relief to be exercised in favour of persons, who have got some legal rights which are being infringed and have come to the Court with clean hands. Section 41(h) of Specific Relief Act provides that an injunction cannot be granted when equally efficacious relief can certainly be obtained by any other usual mode of proceeding. As the property belongs to the DUSIB/ Slum J.J. Board, the equally efficacious remedy is available with the plaintiff for which he should have approached the appropriate forum. Accordingly, this issue is decided against the plaintiff.
Issue no. 2 Whether the plaintiff is entitled to decree of possession with respect to the suit property? OPP. And Issue no. 3 Whether the plaintiff is entitled to recovery of mesne profit and damages @ 10,000/ per month w.e.f. 01.09.2008 till the possession is handed over to the plaintiff? OPP.
20. For the sake of convenience both these issues are taken up together. In order to seek a relief of possession, the plaintiff has to either show ownership of the suit property or earlier settled possession and dispossession of the same by the defendant. The issue regarding ownership has already CS SCJ 609445/16 Bhupinder Singh v. Moti Lal Page No.10 of 15 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
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been decided against the plaintiff. The plaintiff in the plaint in para 4 has mentioned as under :
"...4. That although the suit property have been constructed upto first and second floor but due to financial crunch the construction was not completed. The poor background of the plaintiff as well as performa defendant no. 2 the condition of the suit property was not suitable to live in due to its dilapidated condition..."
21. Thus from the above paragraph, it is clear that the plaintiff was not residing in the suit property as it was in dilapidated condition. It is settled principle of law that in case of vacant property which is not physically possessed, used or enjoyed, in such cases, the principle is that the possession follows ownership/ title. Thus, even though the plaintiff says he was in possession and control of the suit property which remained locked, the said version appears doubtful as plaintiff himself has averred that as per site register, the property bearing no. B672, (25 sq. yards) Budh Nagar, Inderpuri J.J. Colony, Delhi, shows it in the name of Shri Roshan Singh S/o Shri Seo Ram, date of allotment 27.11.1964. Thus, the plaintiff is not able to show any settled possession of the suit property with himself.
22. Moreover, as the issue no. 1 and 4 were already been decided against the plaintiff and equally efficacious remedy is available with the plaintiff whereby he should have approached the appropriate forum which is the DUSIB / Slum and J.J. Board. The provisions of the DUSIB Act specifically bars the Civil Court from entertaining any suit or proceedings in respect of the matter/ property which pertains to DUSIB, the present suit filed by the plaintiff is found to be not maintainable. Further, as there is doubt regarding CS SCJ 609445/16 Bhupinder Singh v. Moti Lal PageDigitally No.11 of 15 signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
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the ownership and possession of the plaintiff as well as regarding the allotment, no mesne profit can be awarded to the plaintiff. Hence, both these issues are decided against the plaintiff. Issue no. 5 Whether the suit is not properly valued for the purpose of Court fee and jurisdiction? OPD
23. The onus to prove this issue is on the defendant. The plaintiff has valued the suit for the purpose of jurisdiction and Court as under :
i. For recovery of possession of suit property having value of Rs. 70,000/.
ii. Mesne Profits and damages @ Rs. 10,000/ per month w.e.f. 01.09.2008 total comes to Rs. 1,10,000/ till date.
iii. For mandatory injunction .....Rs. 120/ iv. For declaration.....Rs. 200/
24. The question is that how the suit is to be valued. The Section 7 (IV) (C) of the Court Fee Act and the second proviso as is applicable to the Delhi provides how the suit has to be valued. It states as under : "7 the amount of fee payable under this Act in the suits next hereinafter mentioned, shall be computed as follows:
(iv) In Suits
(c) to obtain a declaratory decree or order, where consequential relief is prayed, according to the amount, at which the relief sought is valued, in the plaint, or memorandum of appeal:
In all such suits the plaintiff shall state the amount at which he values, the relief sought;
Provided that the minimum Courtfee in each case shall be thirteen rupees.
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Provided further that in suits coming under subclause (c), in cases, where the relief sought is with reference to any property, such valuation shall not be less than the value of the property, calculated in the manner provided for by Cl.(v) of this section."
The above section clearly reveals that in case where the declaration is prayed along with consequential relief, and it relates to immovable property, the value has to be done as per clause V of section 7 according to the second proviso. Clause V(C) of the Section 7 further provides that where the property is immovable property and is not paying land revenue, value of the suit has to be the market value. In this case the consequential relief is with respect to the immovable property and is not the immovable property on which land revenue is paid. Then the market value of the property will be the value of the suit for the purpose of Court fee and jurisdiction.
Further, the Chapter 3 Part C Vol. I of the High Court Rules provides the valuation which is to be done for declaration with respect to the immovable property where no consequential relief is prayed. It states as : "7. Suits in which the plaintiff in the plaint asks for a mere declaration without any consequential relief in respect of property other than land assessed to land revenue.
Value--(a) For the purposes of the Courtfees Act, 1887, as determined by that Act.
(b) For the purposes of the Suits Valuation Act, 1887, and the Punjab Courts Act, 1918--the market value of the property in dispute, at the date of institution of the suit, subject to the provisions of Part I of the Suits Valuation CS SCJ 609445/16 Bhupinder Singh v. Moti Lal Page No.13 of 15 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
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Act, 1887, and the rules in force under the said Part, so far as those provisions are applicable."
Perusal of the above stated Rules clearly reveals that when the declaration is with respect to the immovable property though no consequential relief has been prayed, the suit is to be valued for jurisdiction at the market value of the immovable property.
25. In the present suit, the plaintiff is seeking declaration of ownership of immovable property which has to be valued for jurisdiction at market value. Thus, proper valuation of the suit property has not been done as per market value. Hence, this issue is decided against the plaintiff. Relief.
26. By way of present suit, the plaintiff is seeking relief of mandatory injunction and the said relief is governed by The Specific Relief Act, 1963. As there is another mode by which equally efficacious relief can be certainly obtained by the plaintiff, therefore, in the present suit relief prayed i.e. injunction cannot be granted under Section 41 (h) of The Specific Relief Act, 1963. Further, as regards the relief of declaration, even if plaintiff is able to prove the Will in his favour, then also plaintiff cannot be declared the absolute owner of the suit property as the plaintiff is claiming his title through one Bansi Lal who himself was an allottee of the suit property on licence basis and could not have bequeathed/ transferred a better title then he himself had. Moreover, as regards the relief of possession, the property belongs to the DUSIB and the provisions of DUSIB Act duly provide for bar of Civil Courts with respect to the property belonging to the DUSIB. The same are applicable to the case of the plaintiff as well. Accordingly, the suit CS SCJ 609445/16 Bhupinder Singh v. Moti Lal Page No.14 of 15 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
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of the plaintiff is dismissed. In view of the facts and circumstances of the case no order as to costs. File be consigned to Record room.
Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date: DAGAR 2022.01.11 17:02:50 +0530 Announced in open Court (Susheel Bala Dagar) on 11th Day of January 2021 SCJcumRC (West) Tis Hazari Courts, Delhi. (This judgment contains 15 pages.) CS SCJ 609445/16 Bhupinder Singh v. Moti Lal Page No.15 of 15