Delhi District Court
Raju vs Ndmc on 16 September, 2019
IN THE COURT OF SH. RAJINDER KUMAR, JSCC-CUM-
ASCJ-CUM-GUARDIAN JUDGE (WEST): DELHI
Suit No. 11189/16
Shri Raju
S/o Late Banwari Lal
R/o E-197, Shastri Nagar,
Indira Park, Delhi - 110052. .....Plaintif
Versus
North Delhi Municipal Corporation
Through its Commissioner
Civic Centre, Minto Road
New Delhi. .....Defendant
Date of filing of the suit : 15.02.2016
Date of reserving judgment : 31.08.2019
Date of pronouncement : 16.09.2019
JUDGEMENT
1. Vide this judgment, I shall decide the suit filed by the plaintif for mandatory injunction.
2. The brief facts of the case as per the plaintif are that he is the absolute owner of the property bearing no. 47, Gali No. 13, Nai Basti, Anand Parbat, New Delhi -
Raju vs NDMC Suit No. 11189/16 Page No. 1/9 110005 having purchased the same from Smt. Gyarsi Devi against lawful consideration vide documents dated 27.07.1995. That after purchasing the said property, the plaintif had applied with the defendant for mutation of property in his name vide application dated 18.06.1999. That the defendant vide letter dated 11.11.1999 was pleased to mutate only a residential portion of the said property in the name of the plaintif, whereas the commercial portion was left in the name of Sh. Nand Ram. That Sh. Nand Ram expired on 11.09.1990 leaving behind only Smt. Gyarsi Devi, from whom the plaintif had purchased the entire property. That the defendant did not give any cogent reason as to why the entire property was not mutated in the name of the plaintif. That in November 2015, the plaintif came to know in a civil suit that only residential portion was mutated in the name of the plaintif. That the plaintif made a complaint dated 30.11.2015 with the defendant to correct the mistake but it has failed to do so.
3. In the written statement filed by the defendant/N-DMC, certain preliminary objections are taken like that the suit was not maintainable for want of statutory notice under Section 477/478 of DMC Act and that the same is without cause of action. It is also pleaded that the application was received from the plaintif for the mutation on 18.06.1999, the site was inspected and found that the property divided into two portion, one for Raju vs NDMC Suit No. 11189/16 Page No. 2/9 residential and other one for commercial, and accordingly, the rateable value divided into two parts. That as per the documents submitted by the plaintif residential property was mutated in his name.
4. In the replication, the plaintif controverted the contentions raised in the written statement of the defendant and re-affirmed the averments made in the plaint.
5. From the pleadings of the parties, following issues were settled on 09.04.2018:-
1. Whether the suit is barred for want of statutory notice under Section 477/478 of DMC Act? OPD
2. Whether the suit is without any cause of action and liable to be rejected under Order 7 Rule 11 CPC? OPD
3.
4. Whether the plaintiff is entitled to a decree of mandatory injunction, as prayed for? OPP
5. Relief.
6. The plaintif got examined himself as PW-1 in support of his case, who relied upon various documents i.e. Ex. PW1/1 to Ex. PW1/4, Ex. PW1/9, Ex. PW1/10 and Mark A to D. PE was closed on 04.02.2019.
Raju vs NDMC Suit No. 11189/16 Page No. 3/9 The defendant got examined Sri Krishan, Assistant Section Officer as DW-1 in support of its defence. DE was closed on 02.07.2019.
ISSUE WISE FINDINGS ARE AS UNDER :
ISSUE NO. 1 :-
"Whether the suit is barred under Section 477 & 478 of DMC Act? OPD"
7. The onus to prove this issue was put upon the defendant. It is pleaded by the defendant that the suit was barred under Section 477/478 of DMC Act for the want of notice.
The plaintif has sought an urgent relief in the present suit and in view of provisions as laid down under Section 478 (3) of DMC that the said Section would not be applicable to the suits in which an injunction is prayed for. The present suit is for injunction hence, keeping in mind the urgency of the matter, the plaintif was not required to issue any notice.
Accordingly, the said issue is decided against the defendant and in favour of the plaintif.
ISSUE NO. 2 :-
"Whether the plaintiff has no cause of action against the defendant? OPD"
Raju vs NDMC Suit No. 11189/16 Page No. 4/9
8. The onus to prove this issue was upon the defendant and is based on the objection taken in the written statement, where it is pleaded by the defendant that the suit is without any cause of action and liable to be rejected under Order 7 Rule 11 CPC.
This is a suit for mandatory injunction. While deciding the issue of cause of action, only the averments of the plaint are to be seen and considered. As per the contents of the plaint, he applied for mutation of the property no. 47 vide application dated 18.06.1999. It is also pleaded by the plaintif that only the residential portion of the said property was mutated by the defendant vide letter dated 11.11.1999 and the commercial portion was left in the name of Sh. Nand Ram and seeks for directions for the defendant to mutate the remaining portion i.e. commercial portion. It is also pleaded by the plaintif that erstwhile owner i.e. Sh. Nand Ram already got expired on 11.09.1990 and his wife i.e. Smt. Gyarsi Devi has sold out the entire property to the plaintif on 27.07.1995.
On the basis of the material available on record, the suit is found with a valid cause of action. Hence, the issue is decided against the defendant and in favour of the plaintif.
ISSUE NO. 3:-
"Whether the plaintiff is entitled for a decree of mandatory injunction, as prayed for?
Raju vs NDMC Suit No. 11189/16 Page No. 5/9 OPP"
9. The onus to prove this issue was put upon the plaintif. It is plea of the plaintif that he is the absolute owner of the property bearing no. 47, Gali No. 13, Nai Basti, Anand Parbat, New Delhi having purchased the same from Smt. Gyarsi Devi and after purchasing the same, he applied for mutation of property in his name. It is also the plea of the plaintif that the defendant vide letter dated 11.11.1999 was pleased to mutate only a residential portion of the said property in the name of the plaintif whereas the commercial portion was left in the name of Sh. Nand Ram, who expired on 11.09.1990 leaving behind only Smt. Gyarsi Devi from whom the plaintif had purchased the entire property. That the defendant did not give any cogent reason as to why the entire property was not mutated in the name of the plaintif.
It is the plea of the defendant that the suit was not maintainable for want of statutory notice under Section 477/478 of DMC Act and that the same is without cause of action and liable to be rejected under Order 7 Rule 11 CPC. It is also pleaded that the application was received from the plaintif for the mutation on 18.06.1999, the site was inspected and found that the property divided into two portion, one is for residential and other one is for commercial, and accordingly, the rateable value divided into two parts. That as per the documents submitted by Raju vs NDMC Suit No. 11189/16 Page No. 6/9 the plaintif residential property was mutated in his name.
10. During his examination in chief, the plaintif (PW-1) re-iterated and re-affirmed the contents of the plaint. Similarly, the only witness of the defendant I.e. Sri Krishan (DW-1), re-iterated and re-affirmed the contents of the written statement in his evidence affidavit but under the cross-examination, it was deposed by him that he was well aware about the facts of this case. It was also admitted to be correct by him that the plaintif has applied for the mutation of the suit property on 18.06.1999 along with all the relevant papers. It was also admitted to be correct by him that earlier, the House Tax of the suit property was assessed in the name of one Nand Ram being owner. It was also deposed by him that he was not aware if Nand Ram got expired in 1999 or that after his death, his wife became the owner. It was further deposed by Sri Krishan (DW-1) that he was also not aware if the suit property was sold out by Smt. Gyarsi Devi to the plaintif in the year 1995. It was further deposed by him that he was not awre if the plaintif has applied for the mutation of the complete property ad-measuring 110 sq. yds. It was also deposed by him that he was not aware if the said bifurcation was wrongly done or that the entire property was to be mutated in favour of the plaintif. It was admitted to be correct by him that on 11.11.1999, their Department got the mutation done in favour of the plaintif. However, it was also volunteered by the witness Raju vs NDMC Suit No. 11189/16 Page No. 7/9 that it was got done for two part portions of the same property, one was commercial and the other one was residential.
11. In para no. 3 of the evidence affidavit of Sri Krishan (DW-1), it is clearly stated that the suit property has been sold out on the basis of GPA and accordingly, mutation/sub-division was done under the request of Sh. Raju i.e. the plaintif. In para no. 2 of the evidence affidavit of the DW-1, it is also stated by him that the mutation was done for the purpose of levy/collection of property tax and the rateable value has been done for the purpose of tax only in favour of Sh. Nand Ram and Sh. Raju on 11.11.1999.
Both the written statement and evidence affidavit of Sri Krishan (DW-1) are silent as to whether any notice was ever issued by the defendant to the plaintif herein calling upon him to deposit the ratable value of the suit property and also as to why the complete property no. 47 was not mutated in his name despite making of application.
During his cross-examination, the plaintif (PW-
1) remained on the same stand and nothing material came out to support the defence of the defendant.
Hence, on the basis of the material available on record, the issue is decided in favour of the plaintif and against the defendant.
Raju vs NDMC Suit No. 11189/16 Page No. 8/9 Relief.:-
12. On the basis of the pleadings and in the light of the findings on the issue no. 1 to 3, the suit is decreed and the plaintif is entitled to the relief as under :
A decree of mandatory injunction thereby directing the defendant to mutate the remaining portion i.e. commercial portion forming part of property no. 47, Gali No. 13, Nai Basti, Anand Parbat, New Delhi-05 in the name of the plaintiff is hereby passed in favour of the plaintiff and against the defendant.
However, Charges, if any, for the mutation shall be borne by the parties as per law.
Decree sheet be prepared accordingly.
Announced in the open Court today the 16th September, 2019 RAJINDER KUMAR Digitally signed by RAJINDER KUMAR Date: 2019.09.19 16:36:56 +0530 Raju vs NDMC Suit No. 11189/16 Page No. 9/9