Delhi District Court
Sh. Jai Prakash vs Sh. Karan Singh on 8 January, 2010
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ(NW), ROHINI COURTS, DELHI
S199/08/04
Sh. Jai Prakash
S/o late Ramesh Singh
R/o Jhuggi No.CN352,
Gurmandi, Rajpura,
Delhi110007. .....Plaintiff
Versus
Sh. Karan Singh
S/o Sh. Teja Singh
R/o Jhuggi No.CN442,
Gurmandi, Rajpura,
Delhi110007.
Sh. Fateh Singh
S/o Sh. Rewati Lal
R/o Jhuggi No.CN359,
Gurmandi, Rajpura,
Delhi110007. .....Defendants
Date of Institution of the Suit : 09.11.2004
Date of Reserve for Judgment : 18.12.2009
Date of final Judgment : 08.01.2010
JUDGMENT
1. Present is a suit seeking relief of declaration and Injunction on the averments that plaintiff is in possession of a piece of public land measuring 24 X 17 ft. in Khasra No.206, Village Rajpura Chhaoni now bearing Jhuggi No.352, IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI since 1984 (hereinafter called the 'suit property') and the original defendants No. 3 & 4 are trying to interfere in the use and occupation of the open land in front of Jhuggi of the plaintiff for which not only complaints were made to the police but a civil suit bearing No.180/2000 was also filed wherein both the defendants gave the statement that they will not interfere into the peaceful possession of the plaintiff without following the due process of law, yet in July'04 they again tried to dispossess and interfere in the peaceful occupation of the plaintiff and as such it was prayed that a declaration should be passed in favour of the plaintiff that he is in settled possession of the property and is entitled to protect his possession and by way of Permanent injunction it was prayed that original defendants No. 3 & 4 should be restrained from interfering in the possession of the plaintiff and further original defendant No.2 should be directed to take necessary action against defendants No. 3 & 4.
2. Suit was originally instituted against four defendants wherein MCD and its Slum Department were defendant No. 1 & 2 and now two defendants Karan Singh and Fateh Singh were defendants No. 3 & 4. Summons were served on all the four defendants and written statement was filed by defendant No.2 and defendants No. 3 & 4, wherein the Slum Department has stated that plaintiff has no locusstandi to file this case as he himself is a tres passer and encroacher on the public land and suit is liable to be rejected and further there is no cause of action against MCD since MCD is not taking any action for relocation of the Jhuggi dwellers of Rajpura Gurmandi where the IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI suit property is situated.
3. In the joint written statement filed by defendants No. 3 & 4 it was stated that suit is barred by Section 11 of CPC and further plaintiff has no locus standi to file this case as he has no right, title or interest in the property belonging to the government and further on merits it was stated that the plaintiff is not in possession of the land.
4. On the pleadings of the parties following issues were framed on 21.11.2006 by my Ld. Predecessors:
1. Whether the plaintiff has no locusstandi to file the present suit? OPD
2. Whether the suit of the plaintiff is barred under the provisions of Section 477/478 of DMC Act? OPD
3. Whethe4r the suit of the plaintiff is barred under the provisions of Section 11 of Civil Procedure Code? OPLD
4. Whether the suit of the plaintiff is bad for nonjoinder of necessary parties as DDA is not made a party to the present suit? OPD
5. Whether the plaintiff is entitled for a decree of declaration in respect of the suit premises, as prayed in the plaint? OPP
6. Whether the plaintiff is entitled for a decree of permanent injunction, as prayed in the plaint? OPP
7. Relief
5. Subsequent to that plaintiff himself has made a statement on 05.02.09 dropping defendant No.1 MCD and defendant No.2 Slum & JJ Department of MCD from the array of parties and suit was contested only against and by the remaining two defendants Karan Singh and Fateh Singh.
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI
6. My findings on the issues are as under: ISSUE NO.1:
The onus of proving this issue was on the defendants. However, no evidence has been led by any of the remaining defendants in this case and they closed their evidence as "Nil" despite opportunity given vide their statement dated 25.11.2009 and as such this issue is decided against the defendants.
7. ISSUE NO.2:
The onus of proving this issue was also on the defendant but since MCD and Slum & JJ Department has already been deleted, there are no findings requires on this issue.
8. ISSUE NO.3 & 4:
The onus of proving these issues was on the defendant. However, no evidence has been led by any of the remaining defendants in this case and they closed their evidence as Nil despite opportunity given vide their statement dated 25.11.2009 and as such these issues are decided against the defendants.
9. ISSUE NO.5 & 6:
The onus of proving these issues was on the plaintiff and both the issues are decided collectively as they are interconnected. Plaintiff has IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI appeared as PW1 and has filed his affidavit in support of the plaint and has proved on record the site plan Ex.PW1/1, his ration card as Ex.PW1/2, election card as Ex.PW1/3, the token issued by Delhi Administration as Ex.PW1/4, the statement given by the defendants in the earlier suit as Ex.PW1/5 and the order of the court as Ex.PW1/6. He has also placed on record the notices issued to the original defendants No. 1 & 2 as Ex.PW1/7 & Ex.PW1/8. In his crossexamination he has admitted that no permission was ever obtained by him while raising construction of the suit property from MCD and he has not obtained any permission from any authority prior to raising construction in the property. He has also examined one independent witness Sita Ram who has deposed that plaintiff is in possession of the suit property since many years wherein defendants are trying to interfere time and again. He was also crossexamined wherein he has admitted that goods belonging to none of the defendants are lying in the suit property.
10. Ld. Counsel for the plaintiff has argued that since plaintiff is in uninterrupted physical possession of the property, which can be seen even from the statement made by the defendants in the previous suit, the possession of the plaintiff should be protected as defendants have no right, title or interest in the property even if plaintiff is only an encroacher on the government land. Ld. Counsel for the defendants on the other hand has argued that plaintiff being an encroacher of the public premises, as admitted by himself in his suit, injunction cannot be passed in his favour. IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI
11. I have heard the submissions. Admittedly the suit was originally instituted against four defendants wherein MCD and its Slum Department were defendants No. 1 & 2 and they both were deleted after framing of issues at the stage when a query was raised by the counsel for these defendants that how plaintiff being only an encroacher on the government land can seek injunction against the true owner i.e. MCD and only to overcome this drawback and lacuna in this suit, plaintiff cleverly withdrew the suit against defendants No.1 & 2 keeping in view the fact that he will now be able to press the relief prayed for against the private individuals. However, I am of the considered opinion that plaintiff has failed to show any right, title or interest in the property to enable this court to grant any relief in his favour.
12. It has been held by Hon'ble Supreme Court in the judgment titled as Premji Ratansey Shah V Union of India, reported in 1994 (5) SCC 547 that "Issuance of an order of injunction is absolutely a 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; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction."
As per this judgment of Hon'ble Supreme Court injunction cannot be granted where the persons seeking relief has no personal interest in the IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI property. Plaintiff in the present case is only unlawful occupant of the public premises and as such cannot be granted the discretionary relief of injunction as prayed for in this suit.
13. Further, our own High Court in its full bench judgment reported in AIR 1978 Delhi 174 titled as Chandu Lal V MCD, has held that before invoking the jurisdiction of this court to seek injunction, the petitioners are bound to show that they have legal right and there was an invasion of that right and if they have failed to show their legal right, there exists no justification for allowing them to continue perpetuating their unlawful act. This judgment of Hon'ble Delhi High Court was followed subsequently in another judgment reported in AIR 1990 Delhi 154.
14. Keeping in view the aforesaid law of the land and the fact that plaintiff except of being in possession of the government property, has no right, title or interest in the property, I am of the considered opinion that he has failed to prove both the issues in his favour, the onus of which was upon him. The issues, therefore, are decided against the plaintiff.
15. RELIEF:
In view of my findings given on issue No. 5 & 6, the plaintiff is not IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI entitled to any relief of whatsoever nature. The suit, therefore, is dismissed however no order as to costs. Decree Sheet be prepared. File be consigned to Record Room.
Announced in the open Court (AMIT KUMAR)
on 08.01.2010 JSCC/ASCJ/GJ(NW)
ROOM NO.217, ROHINI
COURTS, DELHI