Delhi District Court
Sh. Mahinder Singh vs Union Of India on 20 January, 2016
IN THE COURT OF RAJESH MALIK, ADDITIONAL SENIOR CIVIL
JUDGECUMJUDGE, SMALL CAUSES COURTCUMGUARDIAN
JUDGE, NORTH WEST DISTRICT, ROHINI COURTS, DELHI.
RCA No. 07/13
Sh. Mahinder Singh,
S/o Late Sh. Raghubir Singh,
R/o Village Kirari, P.O. Nangloi,
Delhi110041. ......Appellant
Versus
1. Union of India,
Through its Secretary,
Ministry of Home Affairs,
North Block, New Delhi.
2. The Commissioner of Police,
Police Head Quarter,
I. P. Estate, New Delhi110002.
3. The SHO,
PS: Sultanpuri, Delhi. ......Respondents
Date of Institution: 22.11.2013
Date on which judgment was reserved: 22.12.2015
Date of pronouncing judgment: 20.01.2015
JUDGMENT:
1. The present appeal has been filed under Order. 41 CPC against Judgment and decree dated 22.10.2013 of Ld. Civil Judge13 (Central) in the suit no.
RCA No. 7/13 Mahinder Singh v. U.O.I. and Ors. 1/8 686/2003, titled as Sh. Ishwar Singh & Anr. v. Union of India & Ors.
2. The brief facts of the case are that the plaintiffs filed the civil suit in the year 1993 for the relief of permanent injunction on the ground that the plaintiffs are the owners and in possession of the premises admeasuring 65' X 170' situated at Suleman Nagar Kirari for the last 35 years. The suit property consists of two rooms and a boundary wall besides a water tank and hand pump.
3. On 30.10.1993, the plaintiffs were doing some repair work in the suit property to prevent flow of rain water inside the suit property from other's property. The immediate neighbour of the appellant had made complaint to SHO, Sultanpuri. The police came there, took the plaintiffs to the police station and asked them to vacate the suit property because the police post was to be constructed at that place. The plaintiffs were apprehending forcible dispossession from the suit property and therefore, the present suit was filed for following reliefs:
1. To grant a decree of permanent injunction restraining the defendants, its agents, servants, employees etc. not to dispossess the plaintiffs from the suit property which has been shown in red colour in the site plan, without the due process of law, situated in the village Suleman Nagar, Kirari (Kh. No. 1012), P. O. Nangloi, Delhi.
2. To grant any other relief or reliefs, pass direction or directions in favour of the plaintiffs and against the defendants, which this Hon'ble Court may deem just and proper in the facts and circumstances of the case.
3. To award the costs of the proceedings in favour of the plaintiffs.
RCA No. 7/13 Mahinder Singh v. U.O.I. and Ors. 2/8
4. The Trial Court heard the case. During the pendency of the case, an application under Order. 12 Rule, 6 CPC was decided in favour of the plaintiffs on 04.01.2013, thereby passing the decree of permanent injunction in favour of the plaintiffs against the Delhi Jal Board to restrain the latter from dispossessing former from the suit property without due process of law.
5. Finally, after completion of trial, the suit of the plaintiffs was dismissed qua Union of India for the relief of permanent injunction.
FINDINGS OF THE TRIAL COURT
6. The suit for permanent injunction was dismissed mainly for the reason that plaintiffs failed to show their ownership and possession over the suit property. Ld. Civil Judge observed that the plaintiffs had only relied upon the site plan Ex. PW1/1 in support of their case and apart from that, the plaintiffs have not relied on a single shred of document to show that they were in settled possession of the suit property. Ld. Civil Judge has also observed that no documentary proof by way of photographs or anything to show possession over the suit property had been shown. It has also been observed that just because there had been no crossexamination of PW1 with respect to the contents of the affidavit, the plaintiffs would not succeed as the case of plaintiffs would have to stand on its own legs. Hence, the Trial Court held that the plaintiffs are not entitled for relief of permanent injunction. The Trial Court further held that notice under Section 140 of Delhi Police Act was not given to the defendant no. 1 i.e. Commissioner of RCA No. 7/13 Mahinder Singh v. U.O.I. and Ors. 3/8 Police and therefore, the suit of the plaintiffs is liable to be dismissed for that reason as well.
ARGUMENTS BEFORE THIS COURT:
7. It is noted here that during arguments, none for respondents appeared.
During arguments in this appeal, Ld. counsel for appellant stated that in evidence by way of affidavit, the plaintiffs claim to be owners and in possession of the suit property for the last 47 years. He argued that there is admission on the part of the defendants in their written statement regarding settled possession of the plaintiff and therefore, settled possession even by an encroacher is protected by law.
COURT'S OBSERVATIONS
8. In the trial, the plaintiff examined himself as PW1. He deposed that he alongwith plaintiff no. 2 were in possession of the suit property for the last 47 years and they being in settled possession cannot be dispossessed from the suit property without due process of law.
9. It is relevant to observe here that in the written statements of defendants no.
1 to 3 in para wise comments, it has been averred that boundary wall has been constructed by the encroacher on Gram Sabha land which is likely to be demolished by the Director Panchayat Delhi and the suit property was likely to be transferred to police for public interest. The averments, as referred to above in para no. 3 of the written statement, show that the defendants has admitted that boundary wall had been constructed on the suit property. If that is the case, then the plaintiffs are in settled possession of the RCA No. 7/13 Mahinder Singh v. U.O.I. and Ors. 4/8 suit property and the police can not dispossess the plaintiffs without due process of law. The admission on the part of the defendants no. 1 to 3 in the written statement obviates the need on the part of the plaintiffs to prove his settled possession.
10.Here, I shall refer the Judgment of Hon'ble Supreme Court in Rame Gowda (Dead) by LRs v. M. Varadappa Naidu (Dead) by LRs. 2004 AD (SC) 1527=(2004) 1 SCC 769, wherein it has been laid down that the settled possession of a person without title would entitle him to protect his possession even as against the true owner. It was significantly observed as follows:
It is thus clear that so far as the Indian law is concerned, the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossesed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking law in his own hands, and also by restoring him in possession even RCA No. 7/13 Mahinder Singh v. U.O.I. and Ors. 5/8 from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to be the true owner.
It is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner.
11. In view of the admission of the defendants no. 1 to 3 that boundary wall had already been constructed and Director Panchayat would demolish the said wall, the plaintiffs were in the settled possession of the suit property. Thus, the plaintiffs can not be burdened with to bring more evidence to prove their settled possession. Moreso, the Ld. Civil Judge partly decreed the suit under Order. 12 Rule, 6 CPC against Delhi Jal Board, which failed in its written statement to counter the averments of the plaint.
RCA No. 7/13 Mahinder Singh v. U.O.I. and Ors. 6/8
12.So far as the issuance of notice under Section 140 of DP Act is concerned, it is observed here that the Ld. Predecessor of the Trial Court, on the very first date of hearing had dispensed with the requirement of Section 80 CPC. If the said requirement of Section 80 CPC was dispensed with in relation of Union of India i.e. defendant no. 1, having considered the urgency of the case, then the same principle applies to the notice under Section 140 DP Act as the urgency in relation to Union of India and Commissioner of Police can not to be differentiated. Since, the urgency to file the civil suit was recognized by the Ld. Civil Judge in relation to Section 80 CPC, therefore, the same principle applies to Section 140 DP Act as different treatment cannot be meted out to Section 140 DP Act to dismiss the suit. Accordingly, requirement of Section 140 DP Act is deemed to have been waived at the very first date of hearing with the requirement of Section 80 CPC, though not specifically written in the order sheet.
13.For the aforesaid reasons, the order of Ld. Civil Judge is set aside. The relief of permanent injunction in respect of suit property measuring 65' x 170', situated at Suleman Nagar Kirari as shown red in colour in the site plan is given to the plaintiff with directions to Union of India and Commissioner of Police that they shall not dispossess the plaintiffs from the suit property without following due process of law. It is further clarified here this decree of permanent injunction does not confer any ownership rights upon the plaintiffs in respect of the suit property. Decree sheet be prepared accordingly.
RCA No. 7/13 Mahinder Singh v. U.O.I. and Ors. 7/8 Appeal file be consigned to Record Room and Trial Court record be sent back with copy of this Judgment.
Announced in the open Court (Rajesh Malik)
th
on day of 20 January 2016 Additional Senior Civil Judge cum Judge, Small Causes Court cum Guardian Judge, NorthWest District, Rohini, Delhi.
RCA No. 7/13 Mahinder Singh v. U.O.I. and Ors. 8/8