Delhi District Court
Tula Ram ( Deceased) vs Municipal Corpn. Of Delhi on 31 October, 2012
IN THE COURT OF MS. SNIGDHA SARVARIA, CIVIL JUDGE,
CENTRAL05 TIS HAZARI COURTS , DELHI
Suit No. 575/2010
IN THE MATTER OF:
1. Tula Ram ( Deceased)
Through legal heirs
i) Smt. Chhoto Devi ( wife)
ii) Sh. Ishwar Singh ( son)
iii) Sh. Attar Singh ( son)
iv) Sh. Balwan Singh ( son)
v) Sh. Kanwar Singh deceased (son)
through LR.s
a) Smt. Bimla Devi ( wife)
b) Jai Bhagwan ( son)
vi) Sh. Dhani Ram deceased (son)
through LR.s
a) Smt. Burfi Devi ( wife)
b) Sh. Subhash ( son)
c) Shree Bhagwan ( son)
d) Sh. Govinda ( minor son through
Smt. Burfi Devi)
All resident of Village & P.O. Mundka, Delhi
2. Mam Chand S/o Sh. Fathan
3. Balbir Singh S/o Sh. Sher Singh
All resident of Village & P.O. Mundka, Delhi
......Plaintiffs
VERSUS
1. Municipal Corpn. of Delhi
Through its commissioner, Town Hall, Delhi.
2. Shri Chunni Lal ( deceased)
Suit No. 575/2010 Page No. 1 of 16
son of Sh. Hazari Lal through LRs.
a) Sh. Sube Singh ( son)
b) Sh. Sukhbir Singh (son)
Residents of V. P. O. Mundka, Delhi.
....Defendants
Date of Institution: 30011992
Date of Reserving for Judgment: 05102012
Date of Judgment : 31102012
SUIT FOR PERPETUAL INJUNCTION
JUDGMENT:
1. By way of this judgment, I shall decide suit for perpetual injunction filed by the plaintiff.
2. The brief facts of the case as per the plaintiff are that the plaintiffs are the residents of V.P.O. Munka, Delhi having their properties in village Mundka, Delhi and being the members of the Gaon Sabha are interested persons in the common rasta/passage of the village and are entitled to file the present suit. The plaintiffs are having their properties and their gates are opening in the street leading from north side to south side and going through the common passage to village pool/pound/johar as shown in the site plan. It is further stated that the common passage leading from east side to west side and going to the phirni road and this common Suit No. 575/2010 Page No. 2 of 16 passage/rasta is used by the plaintiffs, the villagers and the general public for the last so many years being a public passages. The water/drain of the street/gali of the plaintiffs is leading towards the common passages and going to the village pond and the rainy water of the village through the common passage and from the gali of the plaintiffs from north side to south side goes to the village pool/johar and thus the rainy water assembles in the villages pond in which the animals, buffalows etc. of the plaintiff's as well as of the other villagers drink water and take dip in the water assembled in the village pond/johar, and the rainy water has been assembling in the village pond/johar for the last so many years and the villagers as well as the plaintiffs have been using the water of the village pond johar and have also been using the street and the common passages as shown in the site plan attached with the plaint. The defendant no. 1 wants to make a pucca street/kharnja about 41 ft. wide in west side leading to phirni road and the defendant no.1 and or its agents, servants, employees etc. came on the common passages and upon it the pucca street/kharanja will be made and while they were discussing so that defendant no. 2 was also present on the spot besides the plaintiffs and the other persons of the village and the defendant no. 1 in collusion with Suit No. 575/2010 Page No. 3 of 16 defendant no. 2 expressed their malafide intention to turn the passage from point A shown in the sit plan towards the south side and further intended to turn the passage towards the south side touching the disputed property which is shown in red clour in the site plan. It is further submitted that the defendant no.2 in collusion with the defendant no. 1 expressed his malafide intention to divert the way of the common passage and even the defendant no. 2 said it openly that he will encroach upon the disputed property shown in the red colour in the site plan. On 27.01.1992 defendant no. 1 came alongwith the labourers, contractors etc. came on the spot alongwith defendant no. 2 and started to lay down or heep up the sand/earth on the common passage towards the west side of the property of plaintiff no.1 and towards the side leading to phirni road and the defendant no.2 started to dig foundation with the help of labourers upon the disputed property, then the plaintiffs requested the defendant no. 1 not to divert the route of the common passage towards south side near the disputed property and also requested the defendant no.2 not to dig the foundation but the defendant no.1 in collusion with the defendant no. 2 threatened the plaintiffs that they will divert the passage towards south side near the disputed property and either will make the Suit No. 575/2010 Page No. 4 of 16 passage narrower touching the disputed property towards the south side or will encroach upon the land of the village pond/pool/johar and the defendant no. 2 also threatened to dig the foundation and wanted to start digging the foundation with the help of the labourers, than the plaintiffs shouted for help and the villagers and respectable persons assembled on the spot, not to block the passage/water/drain of the plaintiffs of their gali leading towards the common passage and the village pool/johar and also requested the defendant no. 1 also not to make the common passage unstraight and requested not to divert/change the passage/common rasta towards south side or make it narrower near the disputed property and not to encroach upon the land left for the village pool/johar but the defendants were adament in their illegal acts and designs and tried to start their respective works but the plaintiffs with the help of the respectable persons/villagers foiled the acts of the defendants but while the defendants and their servants, labourers etc. were leaving the spot threatened the plaintiffs in presence of several persons of the village that they will come again over the disputed property and will do their respective works and even the defendant no.2 also threatened that he will encroach upon the disputed property in the night time. Hence the Suit No. 575/2010 Page No. 5 of 16 present suit is filed.
3. On the other hand, the case of the defendant no.2 is that the plaintiffs are the resident of village Mundka and they are not members of the Goan Sabha and so they have no right, interest in the suit property of the Gram Panchayat i.e. the passage of Rasta. There is no street which leads from north side to south side. Actually the street is leading from the south side and this is the Rasta for the ingress and out gress of the properties of the plaintiff. The Rasta as stated in the plaint is blocked by the property of the defendant, which falls in the old Laldora of the village. Whereas the properties of the plaintiffs are in the extended phirni. The common passage shown by the plaintiff is the property of the answering defendant which bears old Khasra no.3227 of the 1972 Khasra Pamaish. In the East of the property of the defendant is the property of Prem son of Ram Sarup which was previously owned by Sh. Chander and Dude son of Late Abdullah. In the west there is Rasta towards the north is the property of the plaintiff and towards south is the Rasta and properties of others. The Rasta leading from East side towards southern west side, going to the Firni road is towards side of the property of the answering defendant. The Rasta in front of the houses of the plaintiff is not Suit No. 575/2010 Page No. 6 of 16 connected with the Reasta which goes to the Phirni road as the Rasta which goes to the phirni road and the property of the defendant are situated in the laldora whereas the properties of the plaintiffs are situated in the extended phirni made out during the consolidation of holding in the village which started in the year 1976 and the plaintiffs were allotted plot in the year about 198283 or later on. The claim of the plaintiffs over the property of the answering defendant is illegal and with malafide intention to grab the land of the defendant. It is also denied that the water drains of the street of the plaintiff is leading towards common passage i.e.land of the answering defendant and going to village pond i.e. from North side to the south side. On the other hand that passage of the drains of the gali of the plaintiff only leads towards north side from the houses of the plaintiffs. The plaintiffs have no right in the property of the defendant. The plaintiffs by way of filing this false suit wants to grab the property of the answering defendant for which the answering defendant has filed a separate suit which is th also pending before this honourable court and fixed for 30 June, 1992. The answering defendant is using this property as Ghar, Gitwar since the time of his forefathers. Old bricks of the defendant are also lying there which the answering defendant Suit No. 575/2010 Page No. 7 of 16 brought for the purposes of constructions. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the plaintiff be dismissed.
4. Defendant no. 1 has filed its written statement stating that the suit is barred under Section 477/478 of the Delhi Municipal Corporation Act, 1957 for want of service of statutory notice and as such the same is not maintainable and is liable to be dismissed. It is however, submitted that the plaintiffs are not entitled to file the present suit as the common Rasta/Passage of the village are for the all inhabitants and only the plaintiffs have no case to file the suit. The rainy dullage water, of the plaintiffs street comes in the ponds through the disputed land and the corporation has constructed the open surface drain to drain to make out the sullage water, rainy water of the said street, but the defendant no. 2 Sh. Chuni lal claiming that the same is as plot and is creating hinderences. The concern Patwari can only tell/ascertain this fact. MCD is providing the brick -avements only in the Rasta of the village. There is no collusion of the MCD with other defendant and the plaintiff will not suffer any injury by the act of the answering defendant. Further the defendant denied all the allegations of the plaintiff which are made in his plaint and prayed that the suit of the Suit No. 575/2010 Page No. 8 of 16 plaintiff be dismissed.
5. The plaintiff has filed replication to the written statement filed by the defendant. In his replication the plaintiff has reaffirmed the contents made in the plaint and denied all the allegation made by the defendant in his written statement and further submitted that the suit of the plaintiff be decreed.
6. On the basis of the pleading of the parties following issues were framed vide order dt. 30052000:
i) Whether the plaintiff is entitled to the relief claimed? OPP
ii) Whether there is no cause of action in favour of the plaintiff? OPD2
iii) Whether the suit is not maintainable for want of statutory notice under Section 478 DMC Act? OPD
iv) Relief.
7. To prove his case the plaintiff has examined Sh.Balbir Singh as PW1. PW1 has filed his evidence by way of affidavit Ex. PX. In his evidence the PW1 has reiterated the facts mentioned in the plain and relied upon the following documents:
i) The Site plan of the suit property is Ex. PW1/A.
ii) The copy of the certificate of Extended Abadi dt. 20031986 is Mark A. Suit No. 575/2010 Page No. 9 of 16
iii) The copy of the Sizra Plan is Ex. PW1/D.
8. Further, the plaintiff has examined Sh. Attar Singh as PW2 who has filed his evidence by way of affidavit Ex. PY. PW2 has relied upon the documents Ex. PW2/A which is report of the local commissioner.
9. Further the plaintiff has examined Sh. Sh. Vijender Patwari as PW3 who has brought the original Sizra Ex. PW1/A All the plaintiff witness were also crossexamined by the Ld. counsel for the defendant at length.
10.On the other hand the defendant has examined Sh. Sukhbir Singh as DW1. DW1 has filed his evidence by way of affidavit Ex. D1. DW1 has reiterated the facts mentioned in the written statement and relied upon the following documents:
i) The site plan of the suit property is Ex. DW1/1.
ii) The Aks Sizra of the Lal Dora is Ex. DW1/2.
The DW1 was also crossexamined by the Ld. counsel for the plaintiff at length.
11. Further the defendant has examined Sh. Rohtas Singh as Dw2 who has filed his evidence by way of affidavit Ex. D2. Also the defendant has also examined Sh. Vijender Patwari as DW3. The DW2 & DW3 were also crossexamined by the Ld. counsel for Suit No. 575/2010 Page No. 10 of 16 the plaintiff.
12.I have heard Ld. counsel for both the parties, perused the record & gone through the relevant provision of law.
13. My issues wise findings is as follow: I shall take the issue No. 2 first.
14.Issue No. 2 Whether there is no cause of action in favour of the plaintiff? OPD2 The contention of the counsel for the defendant is that the plaintiffs have no cause of action in their favour to file the present suit. The plaintiffs do not have any right, title or interest in the property which is a common passage/rasta, which belongs to the Gaon Sabha. The case of the plaintiffs is that this common rasta, which is the disputed land/suit property, is next to the land of the plaintiffs and the water from their houses go through this rasta to the jhor/village pond thus they have right and interest in the suit premises and thus have a cause of action in their favour. The defendants have neither led any evidence in this regard nor otherwise satisfactorily proved this issue thus accordingly, this issue is decided in favour of the plaintiffs and against the defendants.
15.Issue No. 3 Whether the suit is not maintainable for want of statutory notice under Section 478 DMC Act? OPD Suit No. 575/2010 Page No. 11 of 16 The contention of the counsel for the defendant no. 2 is that the plaintiff did not give the mandatory notice required to be given as per S. 477/478 and thus the suit is not maintainable.
16. Section 478 of the Delhi Municipal Corporation Act, 1957 (the Act) reads as follows:
478.Notice to be given of suits. (1)No suit shall be instituted against the Corporation or against any municipal authority or against any municipal officer or other municipal employee or against any person acting under the order or direction of any municipal authority or any municipal officer or other municipal employee, in respect of any act done, or purporting to have been done, in pursuance of this Act or any rule, regulation or byelaw made thereunder until the expiration of two months after notice in writing has been left at the municipal office and, in the case of such officer, employee or person, unless notice in writing has also been delivered to him or left at his office or place of residence, and unless such notice states explicitly the cause of action, the nature of the 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 the recovery of immovable property or for 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 in subsection (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 Suit No. 575/2010 Page No. 12 of 16 giving of the notice or the postponement of the institution of the suit.
17.The present suit is a suit for injunction and thus covered under subsection (3) of S. 478 Delhi Municipal Corporation Act, 1957. Thus, the present suit is not barred by S. 477/478 DMC Act. Accordingly, this issue is decided in favour of the plaintiffs and against the defendant no. 1.
18. Issue No. 1 Whether the plaintiff is entitled to the relief claimed? OPP It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. It is also well settled that if the relief claimed by the applicant is hit by the provisions of Section 41 of the Specific Relief Act, then such reliefs cannot be granted to the party.
19.In order to prove their case, the plaintiffs examined Sh. Vijender, village patwari as PW3, who deposed that the new lal dora is always connected to the old lal dora. In his examinationinchief he proved the copy of the aks sizra which is Ex. PW1/A. During his Suit No. 575/2010 Page No. 13 of 16 crossexamination he stated that Ex. PW1/A is not the correct copy of the Aks Sizra brought by him. He also stated that the rasta shown in red in the aks sizra which is Ex. PW1/A does not exist as per the Aks sizra brought by him. The case of the plaintiffs is based on the fact that the rasta no. 167 is a continuous one which connects old and new lal dora. But the patwari has denied the same as is evident from the aforestated deposition of the patwari during his crossexamination. Similarly, when the patwari was examined on behalf of the defendants he proved that the rasta no. 167 is not a continuous rasta. Dw 3 Sh. Vijender Patwari in his crossexamination deposed that it is wrong to suggest that the rasta no. 167 Is continuous and passes through the side corner of the plot no. 586, 596/1, 596/2, 597 and is continuing thereafter. The rasta no. 167 ends at the southwest corner of plot no. 586. He proved the Aks sizra Ex. DW1/2, which was prepared by him. He stated that the rasta no. 167 which starts from the old lal dora goes in the phirni on the west side.
20.On the other hand the defendant no. 2 examined Sh. Rohtash Singh as DW1 who during his crossexamination deposed that the rasta from the new Lal Dora touches the suit property from the Suit No. 575/2010 Page No. 14 of 16 back. He denied that the rasta coming from the new lal dora connects the old lal dora at the suit property.
21.DW1 Sh. Sukhbir Singh stated in his crossexamination that the disputed site is shown as point A in Ex. DW1/2 and there is no construction thereon and the same is being used as a Rasta.
22.From the aforesaid discussion it is apparent that there are contradictions in the case of the plaintiffs vizaviz the statement of PW3. They could not prove the aks sizra placed by them on record. They have failed to prove there case and thus could not show any prima facie case in their favour. In this regard, following decision of the Hon'ble Apex Court is worth mentioning.
23.In Kashi Math Samsthan v. Srimad Sudhindra Thirtha Swamy AIR 2010 SC 296, it was observed as under (AIR @ p. 299) :
"13. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, Suit No. 575/2010 Page No. 15 of 16 that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted." (emphasis added)
24.In view of the foregoing discussion, since the plaintiffs have failed to show a prima facie case in their favour, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, therefore, the suit deserves to be dismissed on this ground.
25.Relief In view of the above discussion, the suit of the plaintiff is dismissed. There are no orders as to costs. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
Announced & signed in the ( Snigdha Sarvaria) open court on 31102012. Civil Judge/Central05 Delhi Suit No. 575/2010 Page No. 16 of 16