Delhi District Court
Aparna Ashram Society vs Subh Chintak Kishore on 21 February, 2007
1
IN THE COURT OF SH. J.P. NARAIN,
CIVIL JUDGE : DELHI
SUIT NO. 1517/06
Aparna Ashram Society
a society registered under the
Societies Registration Act
having its Regd. Office
A-50 Friends Colony
Mathura Road
New Delhi through
Shri Murli Choudhary @ Gulab
S/o late Shri Jai Chandra Choudhary
R/o A-39, Friends Colony
New Delhi
Plaintiff.
Versus
1.Subh Chintak Kishore
S/o Sh. Parmatma Kishore Mathur
R/o 3-A, Kamla Nagar
Delhi-110007
2.Delhi Development Authority
through its Vice Chairman
Vikas Sadan, I.N.A.
New Delhi.
....Defendants
JUDGEMENT:
By this judgment, I shall decide following 2 preliminary issues:
1.Whether the plaintiff is seeking decree of declaration in the garb of suit for injunction and suit is barred U/s 41 (h) of Specific Relief Act?
2.Whether the suit is maintainable in the present form?
2. The case of the plaintiff in brief is that plaintiff is a registered society registered under Cooperative Societies Act and he is in actual physical possession of suit premises since 1973 and the premises in question is being used for providing Yoga classes for the general public. That defendant No.1 purchased the plot in auction from DDA and defendant No.2 handed over the possession of plot to defendant No.1 in 1971 and defendant No.1 being the disciple of late Swami Dhirender Brahmchari offered to give possession of the plot for running Yoga classes from the suit property and handed over the vacant and physical possession of the plot to the plaintiff society. That defendant No.1 even allowed late Swami Dhirender Brahmchari to raise construction and with the consent of defendant No.1 construction raised and a small 3 temple was also built. That defendant No.2 vide letter dated 7.7.1976 informed defendant No.1 that his request for permission to donate the plot was considered and he was asked to furnish the documents. That defendant No.1 subsequently changed his stand and wrote letter dated 5.10.1977 to defendant No.2 informing that defendant No.1 did not wish to donate the plot to the plaintiff society. That defendant No.2 vide letter dated 22.7.83 informed the plaintiff society that the request for the plaintiff society regarding execution and registration of the lease deed cannot be done as there is a prima facie dispute regarding ownership of plot. That defendant No.1 did not fulfill the requirement of the lease deed and plot was cancelled and despite cancellation of the plot plaintiff society remained in possession. Plaintiff is claiming himself to be owner by adverse possession and has sought the relief of permanent injunction on the basis of the ownership and possession. Para No.16 of the plaint reads as follows:
'That the plaintiff society has been in continuous physical possession of the suit premises since 1973 i.e. More than 33 years, hence a valuable right has accrued 4 in favour of the plaintiff society being owner in adverse possession over the suit property. The defendant No.1 has donated the said property in favour of the plaintiff society and though the defendant No.1 has later on withdrawn from fulfilling the formalities of the gift/donation and has even written letters to DDA/defendant No.2 in this respect but at the same time did not take any step for recovery of possession from the plaintiff society and the defendant No.1 under the law of land is now restrained to recover the possession of the suit property from the plaintiff society. The plaintiff society is neither an unauthorised occupant nor a tenant and the said fact has been admitted by the defendant No.1 categorically. The plaintiff society has thus become the owner of the suit premises being in continuous adverse possession for the last more than 33 years.'
3. Para No.21 of the plaint reads as follows:
'That thereafter at about 12.00 p.m. On the same day, two persons claiming to be the officials of the DDA came to the suit property and asked Mr. Murli Chaudhary representing the plaintiff society to vacate the premises 5 within 2 days or the DDA/defendant No.2 will get it vacated as the DDA has ample powers and can restore the possession to the defendant No.1. The plaintiff immediately asked about their identity and told them that the plaintiff society is in uninterrupted physical possession of the suit premises since 1973 and even the defendant No.2 cannot get the same vacated after the expiry of 30 years. The said Mr. Murli Chaudhary further questioned about the authority of DDA/Defendant No.2 in asking him to vacate the premises when the defendant No.2 has already given possession of the suit property to the defendant No.1 in 1973 and has lost all rights, titles or interest in the suit property. These officials however, went away without disclosing their identity but while going told that they will soon to take the possession of the premises.'
4. Para No.23 of the plaint reads as follows:
'That neither the defendant No.1 nor the defendant No.2 has got any right to get the property vacated from the plaintiff society or to cause any interruption in its peaceful possession or use of the same. The defendant No.1 has lost his right to claim possession of the suti 6 premises after the expiry of 12 years and the defendant No.2 has also lost any right to recover the possession after expiry of 30 years of the interrupted physical possession of the plaintiff society on the suit property. On the other hand, a valuable right has accrued in favour of the plaintiff society to claim ownership on the basis of adverse possession. The plaintiff society by virtue of the adverse possession on the suit land has already become owner and as such the defendants have no legal right whatsoever to dispossess the plaintiff society from the suit premises or to interfere in the peaceful possession and use of the suit premises. The plaintiff has been left with no remedy except to file the present suit.'
5. Both the defendants have contested the suit and filed written statement. Defendant No.1 has filed written statement stating therein that DDA is the owner of the plot and the order of cancellation of allotment was held to be illegal by the court in Civil Suit No.750/06. It is stated that the suit of the plaintiff is not maintainable as in the garb of suit for injunction plaintiff is claiming a declaration declaring him to be the 7 owner. It is submitted that the suit premises was never gifted to defendant No.1 by the plaintiff society and the alleged letter dated 6.3.76 was just an enquiry made under pressure by late Sh. Dhirender Brahmchari. That for donation of the immovable property gift deed was essential and defendant No.1 never executed any gift deed and never executed suit property. It is denied that construction has been raised with the consent of defendant No.1. It is stated that unauthorised construction has been raised. It is denied that any threat was extended for evicting the plaintiff.
6. Defendant DDA has filed written statement stating therein that no statutory notice U/s 53B has been served and suit is liable to be dismissed for want of statutory notice. It is further stated that suit of the plaintiff is not maintainable in the present form. It is further stated that no cause of action has been accrued for filing of the present suit and defendant has been made a party on the basis of a bald action that on 29.8.06 some unknown persons claiming to be DDA officials threatened to dispossess the plaintiff. It is stated that defendant DDA took action against 8 unauthorised construction and unauthorised handing over of the possession. DDA is claiming to be the owner of the plot. I have given my careful thought to the submissions made by the counsel for defendant No.1 and JLO on behalf of DDA. Counsel for plaintiff did not appear despite the specific order dated 13.2.07 and instead of addressing arguments on the preliminary issues counsel for plaintiff has moved an application U/s 151 CPC and sent the same through his clerk. That application U/s 151 CPC was rejected.
7. I have perused the pleadings of the parties and have given my thoughtful consideration to the rival submissions. My finding on the issues is as under:
8. ISSUE NO.1 Plaintiff has sought a decree of permanent injunction restraining the defendants from creating any interference and hindrance in the peaceful possession of suit property No. A-39, Friends Colony. The plaintiff has claimed the relief of permanent injunction claiming himself to be the owner of the suit property by way of adverse possession. Para No.16 of 9 the plaint reads as follows:
'That the plaintiff society has been in continuous physical possession of the suit premises since 1973 i.e. More than 33 years, hence a valuable right has accrued in favour of the plaintiff society being owner in adverse possession over the suit property. The defendant No.1 has donated the said property in favour of the plaintiff society and though the defendant No.1 has later on withdrawn from fulfilling the formalities of the gift/donation and has even written letters to DDA/defendant No.2 in this respect but at the same time did not take any step for recovery of possession from the plaintiff society and the defendant No.1 under the law of land is now restrained to recover the possession of the suit property from the plaintiff society. The plaintiff society is neither an unauthorised occupant nor a tenant and the said fact has been admitted by the defendant No.1 categorically. The plaintiff society has thus become the owner of the suit premises being in continuous adverse possession for the last more than 33 years.'
9. Para No.23 of the plaint reads as follows:
10'That neither the defendant No.1 nor the defendant No.2 has got any right to get the property vacated from the plaintiff society or to cause any interruption in its peaceful possession or use of the same. The defendant No.1 has lost his right to claim possession of the suti premises after the expiry of 12 years and the defendant No.2 has also lost any right to recover the possession after expiry of 30 years of the interrupted physical possession of the plaintiff society on the suit property. On the other hand, a valuable right has accrued in favour of the plaintiff society to claim ownership on the basis of adverse possession. The plaintiff society by virtue of the adverse possession on the suit land has already become owner and as such the defendants have no legal right whatsoever to dispossess the plaintiff society from the suit premises or to interfere in the peaceful possession and use of the suit premises. The plaintiff has been left with no remedy except to file the present suit.'
10. From the reading of the aforesaid two paras it becomes very clear that plaintiff is claiming a decree of declaration in the garb of the suit for 11 permanent injunction. From the entire reading of the plaint it becomes clear that plaintiff is claiming himself to be the owner of the suit property by way of adverse possession and is claiming a decree of permanent injunction on the basis of the title of ownership and possession and therefore plaintiff is essentially seeking a decree of declaration in the garb of suit for permanent injunction. As the plaintiff is claiming the decree of declaration in the garb of the decree of mandatory injunction and no other equal and efficacious remedy is available to the plaintiff therefore the suit is not barred U/s 41 (h) of Specific Relief Act. If it is construed that the suit is only for permanent injunction then equal and efficacious remedy is available in the form of suit for declaration and injunction, but in the present case plaintiff is seeking decree of declaration in the garb of the suit for permanent injunction and therefore plaintiff is essentially seeking a decree of declaration and injunction and therefore suit is not barred U/s 41(h) of the Specific Relief Act.
11. ISSUE NO.2 From the perusal of the para 16 and 23 of 12 the plaint it becomes clear that plaintiff is seeking a decree of declaration in the garb of suit for permanent injunction. Both the defendants have contested the suit and have taken the defence that the suit is not maintainable in the present form. I have considered the rival submissions, the pleadings of the parties and the case law cited at the bar. After considering the pleadings of the parties, submissions and the cited case law I am of the definite opinion that the suit is not maintainable in the present form on following grounds:
(i)From the perusal of para 23 and para 16 of the plaint it is clear that plaintiff is claiming the ownership of the suit property against defendant No.1 as well against defendant No.2. Admittedly, no legal notice has been served U/s 53B against defendant DDA. Section 53B of DD Act provides as follows:
(1)No suit shall be instituted against the Authority, or any member thereof, or any of its officers or other employees, or any person acting under the directions of the Authority or any member or any officer or other employee of the Authority in respect of any act done or purporting to have been done in pursuance of this Act or any rule or 13 regulation made thereunder until the expiration of two months after notice in writing has been, in the case of the Authority, left at its office, and in any other case, delivered to, or left at the office or place of abode of, the person to be sued and unless such notice states explicitly the cause of action, the nature of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiff and unless the plaint contains a statement that such notice has been so left or delivered.
(2)No suit such as is described in sub-section (1) shall, unless it is a suit for recovery of immovable property or or a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.
(3)Nothing contained in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit.14
12. In the case of Prinda Punchi (Smt.) and Another Vs. Municipal Corporation of Delhi and Others 2005 IV AD (Delhi) 639, Division Bench of our own Hon'ble High Court has dealt in detail regarding the requirement of issuance of notice to the DDA before institution of the suit. It was held 'That a bare perusal of the statutory provisions shows that the legislature had carefully worded the statutory provisions keeping in view the spirit, intendment and purpose of the discretion conferred to waive the requirement of the statutory notice keep in view the exigencies of the matter, Section 53B of the Delhi Development Act knows of no exemptions or waiver. The aforesaid provision of section 53B was enacted long after enactment of the provision of Sub-section (2) of section 80 of the CPC. The legislature was aware of the said provision of sub-section (2) of section 80 CPC when section 53B of the Delhi Development Act was enacted. Consciously the legislature did not incorporate in section 53B of the Delhi Development act any exception as that of sub-section (2) of Section 80 CPC. Therefore, it would not be appropriate to include and add such provision as that of sub-section (2) of section 15 80CPC. Therefore, it would not be appropriate to include and add such provision as that of sub-section (2) of section 80 CPC into the provision of section 53B of the Delhi Development act. On the contrary the legislature has consciously referred to a suit for declaration of title in Section 53B (2) of the statute. It is settled law that a statute has to be enforced, as it exists. No words can be imported into the specific language used by the legislature. As per statutes, before the filing of any suit, notices to the Union of India under section 80 of the Code of Civil Procedure and to the Delhi Development under section 53B of the Delhi Development Act were required to be issued. The appellant has admittedly not done so. When a suit seeking a decree of declaration is instituted, notice has to be given under section 80 CPC as also under section 53B of the Delhi Development Act. As such, there could be no plea of waiver of a notice. We accordingly find no merit in this appeal and the same is dismissed with costs.'
(i)Admittedly in the present case no notice has been served and plaintiff is claiming to be the owner of the 16 suit property and is seeking decree of declaration in the garb of injunction and therefore suit is not maintainable for want of statutory notice U/s 53B DD Act.
(ii)Para 23 of the plaint clearly shows that plaintiff is claiming ownership against defendant No.1 and defendant No.2 on the basis of adverse possession. From the perusal of para 23 of the plaint it becomes clear that plaintiff is claiming the decree of declaration of ownership qua both the defendants. In the case of T. Anjanappa and others Vs. Somalingappa and another 2007 (1) RCR (Civil) 19 the Hon'ble Supreme Court has held that a person claiming adverse possession over property but not knowing who was the true owner and in that case the possession cannot be said to be adverse. Admittedly in the present case the plaintiff is claiming the title of ownership on the basis of adverse possession against both the defendants. The facts of above referred case law are similar to the present case and the case law cited at bar clinches the issue in favour of defendants and plaintiff cannot be held to be in adverse possession.
17(iii)Plaintiff is claiming to be owner by way of adverse possession. Admittedly, ownership by way of adverse possession against government property cannot be claimed unless a person is in hostile possession to the real owner for more than 30 years. According to the plaintiff plaintiff came into possession of the suit property in the year 1973 with the permission of defendant No.1. Admittedly, Dhirender Brahmchari, the founder of the plaintiff society wrote a letter dated 4.3.1981 requesting the DDA to execute the lease deed in favour of the plaintiff and same was replied by the DDA vide letter dated 25.5.81 and 22.7.83. Para No.9 of the plaint reads as follows:
'That the defendant No.2 vide its letter dated 22.7.1983 bearing Ref. No.19(5)/70-LAB informed the plaintiff society that the request of the plaintiff society regarding execution and registration of lease deed has been examined and the same cannot be done as there is a prima facie dispute regarding ownership of plot of land between the plaintiff society and the defendant No.1 which can only be resolved by the court of competent jurisdiction. The defendant No.2 however, made it clear that the DDA is entitled to recover the 50% unearned 18 increase.' From the reading of the para No.9 it becomes clear that on 4.3.1981 plaintiff society was admitting DDA as owner of the property and DDA was requested to execute the lease deed and from the documentary evidence it is established that plaintiff was not claiming adverse possession on 4.3.81 and even if it presumed that after 4.3.81 plaintiff society declared its possession as hostile qua DDA even then plaintiff is not entitled to declaration of ownership as continuous possession of more than 30 years is not established and on the contrary it is established that possession is not more than 30 years old and therefore plaintiff is not entitled to the decree of declaration of ownership qua DDA.
(iv)Admittedly, the suit plot was owned by DDA and DDA has given the suit plot to defendant No.1 vide auction on lease hold basis and plaintiff came into possession of the suit property with the permission of defendant No.1. Admittedly, the allotment in favour of defendant No.1 was cancelled and the possession of the plaintiff after cancellation of the allotment was of a trespasser. It is settled law that a trespasser is not 19 entitled to injunction against a true owner. DDA is the owner of the suit property. Even if it is presumed that the suit is only for permanent injunction and plaintiff is not claiming any declaration of ownership even then plaintiff is not entitled to decree of permanent injunction. In the case of Mahadevo Savlaran Shelke and others Vs. Pune Municipal Corporation and others (1995) 3 SCC 33 wherein the Apex Court held that: 'No injunction should be granted against the true owner at the instance of person in unlawful possession.'
(v)The plaintiff is claiming the ownership by way of adverse possession qua defendant No.1 also. In Para No.5 of the plaint it is mentioned that defendant No.1 handed over the vacant and physical possession of the plot for running Yoga classes and defendant No.1 has given consent for raising construction. From the pleadings it becomes clear that possession of the plaintiff was a permissive possession only. The relevant paras of the judgment in the case of T. Anjanappa and others Vs. Somalingappa and another 2007 (1) RCR (Civil) 19 reads as follows:
'12. The concept of adverse possession contemplates 20 a hostile possession i.e. a possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. The principle of law is firmly established that a person who bases his title on adverse possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to denial of his title to the property claimed. For deciding whether the alleged acts of a person constituted adverse possession, the animus of the person doing those acts is the most crucial factor. Adverse possession is commenced in wrong and is aimed against right. A person is said to hold the property adversely to the real owner when that person in denial of the owner's right excluded him from the enjoyment of his property.
13. Possession to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse.21
IT is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co-owner. (See Vidya Devi v. Prem Prakash and Ors., 1995(3) RRR 65 (SC):
1995(4) SCC 496).
14. Adverse possession is that form of possession or occupancy of land which is inconsistent with the title of the rightful owner and tends to extinguish that person's title. Possession is not held to be adverse if it can be referred to a lawful title. The person setting up adverse possession may have been holding under the rightful owner's title e.g. Trustees, guardians, bailiffs or agents. Such persons cannot set up adverse possession.
15. 'Adverse possession' means a hostile possession which is expressly or impliedly in denial of title of the true owner. Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. Possession was hostile to the real owner and amounted to a denial of his title to the property 22 claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of th person doing those acts which must be ascertained from the facts and circumstances of each case. The person who bases his title on adverse possession, therefore, must show by clear and unequivocal evidence i.e. Possession was hostile to the real owner and amounted to a denial of his title to the property claimed. (See Annasaheb v. B.B. Patil, 1995(2) RRR 370: AIR 1995 SC 895 at 902).
16. Where possession could be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another's title. One who holds possession on behalf of anotehr does not by mere denial of that other's title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful titile, cannot divest another of that title by pretending that he had no title at all.
22. It is well recognized proposition in law that mere 23 possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner's title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former's hostile action.
23. The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner 24 and not the plaintiffs, the same was inconsequential.
Obviously, the requirements of proving adverse possess have not been established. If the defendants are not sure who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not arise. Above being the position the High Court's judgment is clearly unsustainable. Therefore, the appeal which relates to O.S. 168/85 is allowed by setting aside the impugned judgment of the High Court to that extent. Equally, the High Court has proceeded on the basis that the plaintiff in O.S. 286/88 had established his plea of possession. The factual position does not appear to have been analysed by the Hgh Court in the proper perspective. When the High Court was upsetting the findings recorded by the court below i.e. first appellate Court it would have been proper for the High Court to analyse the factual position in detail which has not been done. No reason has been indicated to show as to why it was differing from the factual findings recorded by it. The first appellate Court had categorically found that the appellants in the present appeals had proved possession three years prior to 25 filing of the suit. This finding has not been upset. Therefore, the High court was not justified in setting aside the first appellate Court's order. The appeal before this Court relating to O.S. 286 of 1988 also deserves to be allowed. Therefore, both the appeals are allowed but without any order as to costs.
In view of the aforesaid case law laid down by the Hon'ble Supreme Court the possession of the plaintiff cannot be said to be adverse possession qua defendant No.1. Otherwise also defendant No.1 is not the owner of the suit property and the suit property is owned by DDA and therefore the plea of ownership by way of adverse possession qua defendant No.1 is not maintainable as defendant No.1 is not the owner of the property.
(vi) The plaintiff is seeking declaration of ownership in the garb of the injunction without paying the proper court fee.
(vii) As per the provision of transfer of property gift of the immovable property can be made in accordance with the provision of Transfer of Property Act. 'Gift is the transfer of certain existing moveable or immoveable property made voluntarily and without 26 consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made - Such acceptance must be made during the life time of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void.' Section 123 of the Transfer of Property Act provides the mode of effecting transfer by gift which reads:-
'Transfer how effected - for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered.' The other relevant S.126 specifies circumstances under which a gift can be suspended or 27 revoked:-
'When gift may be suspended or revoked. - The donor and donee may agree that on the happening of any specified event which does not depend on the Will of the donor a gift shall be suspended or revoked: but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.
A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract , it might be rescinded.
Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.' For understanding the provisions on ' Gift' contained in Chapter VII of the Transfer of Property Act, all the sections therein which are inter-related have to be read conjointly to understand their import and effect.
Section 127 throws light on the question of validity of transfer of property by gift to a minor. It recognises minor's capacity to accept the gift without intervention of a guardian, if it is possible, or through 28 him.
'Onerous gifts. - Where a gift is in the form of a single transfer to the same person of several things of which one is, and the others are not burdened by an obligation, the donee can take nothing by the gift unless he accepts it fully.
Where a gift is in the form of two or more separate and independent transfers to the same person of several things, the donee is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous.
Onerous gift to disqualified person. - A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, be becomes so bound.' The last part of S.127, underlined above, clearly indicates that a minor donee, who can be said to be in law incompetent to contract under S. 11 of the Contract Act is, however, competent to accept a non- onerous gift. Acceptance of an onerous gift, however, cannot bind the minor. If he accepts the gift during his 29 minority of a property burdened with obligation and on attaining majority does not repudiate but retains it, he would be bound by the obligation attached to it.
(viii) Admittedly, defendant No.1 has not executed any gift deed of the suit property in favour of the plaintiff.
Admittedly, property is owned by DDA and the lease deed executed in favour of the defendant No.1 was canceled and therefore the possession of the plaintiff was of a trespasser only and today also the possession of the plaintiff is that of a trespasser.
12. In view of the reasons mentioned above suit of the plaintiff is not maintainable in the present form and Issue No.2 is decided in favour of the defendants and against the plaintiff and accordingly suit of the plaintiff is dismissed. Parties shall bear their own cost. Decree sheet be prepared accordingly. File be consigned to record room.
(J.P. NARAIN) CIVIL JUDGE/DELHI.
ANNOUNCED IN OPEN COURT ON 21.02.2007.
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