Delhi District Court
Amresh Tyagi vs Dinesh Kumar Tyagi on 12 December, 2024
IN THE COURT OF DISTRICT JUDGE-08 (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
Presided by : Ms. Vandana
RCA DJ No. 92/2024
CNR NO.: DLCT01-008986-2024
In the matter of:
1. Amresh Tyagi
S/o Late Sh. Jai Prakash Tyagi,
R/o H No. 628, Village Burari,
Delhi-110084
2. Suresh Kumar
S/o Late Sh. Jai Prakash Tyagi,
R/o H No. 628, Village Burari,
Delhi-110084 .....Appellants
Versus
1. Dinesh Kumar Tyagi
S/o Late Sh. Mahesh Tyagi,
R/o H No. 626, Village Burari,
Near Ashok Vatika, Delhi-110084
2. Gaon Sabha Kamalpur Majra Burari
Through Block Development Officer,
North District, Burari, Delhi-110084
3. Union of India
Through Block Development Officer,
North District, Burari, Delhi-110084
4. Municipal Corporation of Delhi
Through its Commissioner
Civil Line Zone, Civic Centre,
Minto Road, Delhi .....Respondents
RCA No. 92/2024 Page No. 1 of 12
Date of institution of the appeal : 06.06.2024
Date on which order was reserved : 12.12.2024
Date of Decision : 12.12.2024
JUDGMENT:
1. I shall decide the present appeal U/S 96 CPC filed against the impugned order dated 09.05.2024 passed by Ms. Payal Singal, Ld Civil Judge-08, Central District, Tis Hazari Courts, Delhi in Civil Suit No. 1309/2019 titled as "Amresh Tyagi & Asnr. v. Dinesh Kumar Tyagi & Ors. vide which the Ld Trial Court dismissed the suit under Order 7 Rule 11 CPC. For the sake of convenience, the parties will be referred by their original status.
Facts in brief:-
2. The facts of appeal, which are required for the purpose of disposal of the present appeal is that the plaintiffs have stated themselves to be social workers and the owners of land Khasra No.18/1, situated at Kamalpur, Burari Majra, Delhi - 110 084 (as shown in green colour in the site plan). The defendant No.1 is stated to be a builder and is carrying out unauthorized construction on the Municipal Land bearing Khasra No.14/21, situated at Kamalpur, Burari Majra, Delhi - 110 084 Abadi known as Nehru Gali, Chandan Vihar, Delhi (as shown in red colour in the site plan; hereinafter referred to as suit property). It is the case of the plaintiffs that the suit RCA No. 92/2024 Page No. 2 of 12 property vests in defendant No.2 i.e. Gaon Sabha and that defendant No.1 has no right, title in the same. It has been further stated that the gram sabha has taken no action and despite several orders on the complaint of the plaintiff, the defendant no. 1 hand in gloves with the defendant no. 2 to 4 has raised unauthorized construction. Accordingly, the present suit has been filed for permanent and mandatory injunction seeking directions against defendant No.1 that he be restrained from raising illegal and unauthorized construction in the suit property and that defendants No. 2 to 4 be directed to take appropriate action against the encroachment and unauthorized construction as made by defendant No.1 in the suit property.
3. The suit of the plaintiff was dismissed under Order 7 Rule 11 CPC for want of territorial jurisdiction vide order dated 09.05.2024.
4. The above said impugned order was challenged on the following grounds:-
(i) That Ld Trial Court has violated the principles of justice, equity and good conscience and wrongly considered that the suit is barred by Section 185 of Delhi Land Reforms Act, 1954 as in the present, case property is not being used for agricultural purpose and unauthorized construction has been carried out by defendant no.1 and therefore, Ld. Trial Court wrongly dismissed the suit by stating that suit is barred by Section 185 of Delhi Land Reforms Act.RCA No. 92/2024 Page No. 3 of 12
(ii) That Ld Trial Court wrongly held that there is no cause of action in favour of the plaintiffs to file the present suit. Ld Trial Court failed to consider that defendant no. 1 in connivance of officials of defendants no. 2 to 4, carried out unauthorized construction in the suit property.
(iii) That Ld Trial Court wrongly dismissed the application U/S 91 CPC filed by the plaintiff to seek leave of the court to file the suit.
(iv) That Ld Trial Court failed to consider that status report filed by the defendant no. 4 MCD clearly stated that the entire suit property is consisting of unauthorized construction and same was booked by MCD and demolition order has already been passed and several vacation notice U/S 349 DMC Act has been issued to the occupier.
(v) That Ld Trial Court failed to consider that defendant no.
4 despite issuance of several vacation notice, no action has been taken by the MCD to remove the occupier of the suit property.
(vi) That Ld Trial Court wrongly considered the applicability of the judgment of Rajendra Motwani and Anr. v. MCD and Ors. as the facts of said case were different from the present case.
(vii) That Ld Trial Court failed to consider that the plaintiffs have good prima facie case and balance of convenience also lies in favour RCA No. 92/2024 Page No. 4 of 12 of the plaintiffs and hence the same needs to be set aside otherwise the plaintiffs shall suffer irreparable loss and injury.
5. Through reply filed on behalf of defendant no.1, the appeal was strongly opposed arguing that plaintiff have no locus standi nor there is any cause of action. It has been further stated that there is no illegality or infirmity in the impugned order and the appeal is liable to be dismissed.
6. Arguments heard. Case file perused.
7. The suit of the plaintiff was rejected for two grounds as under:-
a) The suit is barred by law under Section 185 Delhi Land Reforms Act.
b) The plaintiff has no cause of action to file the present suit;
8. The suit of the plaintiff was also dismissed holding that the suit is barred by section 185 of Delhi Land Reforms Act.
9. Bar of section 185 of Delhi Land Reforms Act- has created a whole hierarchy of courts for the determination of the question relating to rights and liabilities regarding land.
10. I deem it appropriate to mention here the observations made by Hon'ble Supreme court in the case titled as Mam Raj Vs. RCA No. 92/2024 Page No. 5 of 12 Ram Chander, 1974, Rajdhani Law reporter 428, the relevant portion is reproduced here as under for ready reference:-
"9. It will thus be noticed that it is only under section 185 which expressly ousts the jurisdiction of the civil courts in certain matters and not in all matters. The matters in respect of which the jurisdiction of the civil courts is ousted are only those matters which are mentioned in Schedule 1 to the Act, and various types of suits, applications and other proceedings are mentioned in column 3 of the said Schedule read with entries mentioned in column 2 and the courts in which the proceedings have to be filed are mentioned in column 7 thereof. It is thus clear that in the suit of the present type in which permanent injunction is claimed on the basis of succession to bhoomidari rights by virtue of a will, such a suit is not covered by any entry in column 3 of First Schedule and thus the Delhi Land Reforms Act does not either expressly or implied bar the present suit. So far as the alternative relief of possession is concerned, namely, that in case it be held that the plaintiffs have been dispossessed RCA No. 92/2024 Page No. 6 of 12 during the pendency of the suit, it may be argued that such claim can be decided by Revenue Courts in view of entry No.19 in column 3 of the First Schedule but that question cannot be decided as a preliminary issue. The case of the plaintiffs is that they are in fact in possession whereas the defendant has denied the possession of the plaintiffs. It will thus be a question for trial whether the plaintiffs on the date of the suit had any possession or not. Again, if the plaintiffs are dispossessed during pendency of the suit, it will again be a question to be determined on facts. The question cannot be determined without taking evidence and so long as the issue is not decided as a question of fact, it cannot be held that the suit itself is beyond the cognizance of civil courts; as and when the question arises whether the plaintiffs have been dispossessed during the pendency of the suit, the question will then arise as to the jurisdiction of the civil court to grant a decree for possession. On the allegations as contained in the plaint which has to be taken as correct for the purpose of deciding jurisdiction of the courts to take cognizance of the suit, it cannot RCA No. 92/2024 Page No. 7 of 12 be said that the cognizance of the civil court is barred."
"20. A joint reading of the entry 18 alongwith 81 and 83 would show that the said entry cannot be held to be applicable to the present suit which is a suit for permanent injunction. For the jurisdiction of civil court to be barred the jurisdiction as to be expressly ousted by the statue. It is settled law that exclusion of jurisdiction of civil court is not to be readily inferred, but such exclusion must either be explicitly expressed or clearly implied. Section 9 of the CPC confers abundant power on the civil courts to proceed in the matter."
"21. No provision has been brought to the notice where under the revenue courts are empowered to grant the relief of injunction as claimed in the present suit. If the revenue courts are not entitled to grant injunction, the plaintiff cannot be left remedy less."
11. The present suit is for seeking the relief of injunction. It is not a suit for declartion, right or title in the property. In the light of the aforesaid discussion, this court is of the opinion that the present suit is not barred under the provision of Delhi Land Reforms Act, 1954.
RCA No. 92/2024 Page No. 8 of 1212. The suit was rejected for no cause of action as well. The present suit has been filed by two plaintiffs, seeking leave of the court under section 91 of CPC.
13. Coming to the application under Section 91 of CPC. Section 91 of CPC reads as under:-
Section 91. Public nuisances and other wrongful acts affecting the public. (1) In the case of a public nuisance or other wrongful act affecting,or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,
(a) by the Advocate General, or
(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.
14. It was argued on behalf of the plaintiffs that their land was adjoining the suit property as clearly shown in the site plan and the illegal construction has been raised by the defendant No.1 which is causing nuisance to them. It was further argued that even otherwise, Section 91 of CPC permitted the plaintiffs to file the present suit on RCA No. 92/2024 Page No. 9 of 12 the ground that the acts of the defendant No.1 could cause nuisance to the public at large.
15. Per contra, it was argued on behalf of the defendant No.1 that the plaintiffs were not the owners of the land as stated by them in the plaint. It was further argued that the plaint is completely silent as to what cause of action had arisen in favour of the plaintiffs and against the defendants to file the present suit and accordingly, it was prayed that the plaint is liable to be rejected.
16. On perusal of the impugned order, it is evident that the Ld. Trial court categorically observed that under section 91 of CPC leave can be granted even if no special damage has caused to such persons by reason of alleged public nuisance. However, even after having observed the same, Ld. Trial Court kept on searching for the infringement of rights of the plaintiffs and damage or inconvenience caused to plaintiffs.
17. A suit can be maintained under section 91 of CPC if the following conditions are fulfilled:-
a) plaintiff must obtain leave from the court;
b) the suit is filed by at least two people;
c) the suit is related to public nuisance or wrongful act.
RCA No. 92/2024 Page No. 10 of 12
18. Section 91 of CPC does not limit the individual rights of the parties. A public nuisance is an act or omission that cause of common injury, danger or annoyance to the public.
19. The Judgment relied upon by the Ld. Trial court i.e. Rajendra Motwani and Anr. v. MCD and Ors. RSA No. 243/2017 dated 16.10.2017 is not applicable in the present facts as the suit has been filed under section 91 of CPC, where, no special damage to the plaintiffs is required to be proved.
20. The Ld. Trial court, vide impugned order, has observed that it is admitted case of the plaintiff that the defendant no. 2 is the owner of the suit property, hence, if any cause of action, at all, arises, that is in favour of the defendant no. 2 and the plaintiffs have no cause of action.
21. I am not convinced with the findings of the Ld. Trial Court. The unauthorized construction on the property, which vests in gaon sabha, is a nuisance to the public at large. Undoubtedly, the property vests in the gaon sabha is public property and the gaon sabha is responsible for managing, directing and controlling the said property. But that can not take away the effect of section 91 of CPC. It has been categorically mentioned in the plaint that no action has been taken by any local authority and even no complaint was filed by gaon sabha against the said unauthorized construction.RCA No. 92/2024 Page No. 11 of 12
22. In view of the above findings, the impugned order dated 09.05.2024 is hereby set aside. The application under section 91 CPC stands allowed. The appeal stands allowed accordingly. Copy of this order be sent to the Ld. Trial Court alongwith trial court record.
23. Parties are directed to appear before the Ld. Trial court on 18.12.2024 at 02.00 p.m.
24. Appeal file be consigned to Record Room after necessary Digitally compliance. signed by VANDANA VANDANA Date:
2024.12.12 04:14:33 +0530 Pronounced in the open Court (VANDANA) on 12th December, 2024. District Judge-08 Central District : Tis Hazari Courts Delhi.RCA No. 92/2024 Page No. 12 of 12