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Delhi District Court

Mukesh Kumar vs Municipal Corporation Of Delhi on 9 February, 2011

                      IN THE COURT OF SH AJAY GUPTA
          ASCJ/JSCC/GJ(E): KARKARDOOMA COURTS DELHI
                                                                            Suit No. 29/11
In the matter of
Mukesh Kumar
S/o  Sh. Ilam Singh
R/o 7/76­B, Vill. Chandrawali 
presently known as Bhim Gali
Vishwas Nagar, Shahdara, Delhi­32                                      ....Plaintiff
                                           Versus
Municipal Corporation of Delhi
Through its Commissioner,
Town Hall, Delhi­06                                                    ....Defendant
O R D E R

1. This order shall dispose the application u/o 39 rule 1 and 2 CPC filed by the plaintiff.

(PLAINTIFF's CASE)

2. For appropriate disposal of the instant application, brief facts mentioned in the plaint as well as WS of defendant are required to be considered. It is stated in the plaint that plaintiff is residing in property no.7/76­B, Bhim Gali, Vishwas Nagar, Shahdara, Delhi (hereinafter to be referred 'as suit property') since 1964. Plaintiff has got an electric connection, water connection, gas connection, ration card, driving licence and Voter I­Card at the aforesaid address and also paying house tax of the suit property since long. Father of plaintiff (Sh. Ilam Singh ) has purchased the suit property from its owner Sh. Ram Narain through a General Power of Attorney dt. 05.04.95. Plaintiff and his family have been residing in the suit property for the last fifty years. It is stated that officials of the MCD are claiming that house of the plaintiff is unauthorized. On 17.01.11 two officials of MCD visited the suit property and started taking measurement. On inquiry, plaintiff Suit No.29/11 1/3 came to know that MCD is going to demolish the structure without fifteen days notice. Thus, it is prayed that defendant be restrained from demolishing the suit property, till final disposal of the present suit.

(DEFENDANT's CASE)

3. In their written statement defendant/MCD stated that plaintiff was encroacher over the government land as he had constructed the house over the government land. This encroachment has been removed by the defendant. Thus, it is stated that suit of the plaintiff has become infructuous and same is liable to be dismissed. It is also stated that the aforesaid encroachment has been removed as MCD was to file action taken report in writ petition no. 4717/2010, Vishwas Nagar Vikas Samiti & Ors. vs. Commissioner, MCD & Ors.. It is stated that a massive drive for removal of the encroachment in the area i.e service road from Ram Gali to Karkari Road, Gali no.1 along with Kasturba Drail, Vishwas Nagar, was fixed on dt. 27.01.11, 28.01.11, 29.01.11 and 31.01.11. and almost entire encroachment has already been removed in this area. Presently there is a nine meter wide road and there is no encroachment in the area. On these grounds defendant sought dismissal of the instant application.

(DECISION)

4. I have heard the arguments on behalf of both the parties and gone through the record of the case. For setting out a prima facie case in his favour, plaintiff was required to establish on record that he has got a legal right qua the suit property. Perusal of record shows that plaintiff has filed on record copy of an unregistered GPA, pertaining to suit property. He has also filed on record copy of ration card, Voter I­Card, house tax receipts, driving licence, Pan Card, caste certificate and cooking gas connection of the address of the suit property. He has also placed on record copy of one Khasra Girdawari pertaining to year 1999. However, plaintiff has not filed on record any document to show that he or his father is the owner of the property in question. He Suit No.29/11 2/3 has not filed any document to show that he or his father has been conferred title of the suit property in terms of section 54 of Transfer of Property Act. No valid document of his title has been placed on record. Except aforesaid documents, no document regarding his ownership has been placed on record. Thus, it is clear that plaintiff did not have any valid document of his ownership qua the suit property. Consequently, it is be held that plaintiff has got no right in the suit property. Thus, it is held that plaintiff has failed to establish on record that he is the owner of suit property, as such, it is to be held that he has got no right, title or interest qua the suit property.

5. On the other hand MCD has claimed that plaintiff had encroached upon the portion of road and this encroachment has already been removed. The failure of plaintiff in producing the title document of the suit property strengthens the stand of MCD that plaintiff had constructed the suit premises over the portion of the road. Thus, it is prima facie, clear that plaintiff has got no right, title or interest qua the suit property, as such, plaintiff is not entitled to the relief of interim injunction. Furthermore, it is also clear from the written statement of MCD that major part of the encroachment has already been removed. In view of these facts and circumstances, it is held that plaintiff has failed to set up a prima facie case in his favour, therefore, he is not entitled to the relief of injunction. Plaintiff's application is disposed off accordingly. Nothing said herein, shall tantamount to be expression, upon the merits of the case.

(AJAY GUPTA) ASCJ/JSCC/GUARDIAN JUDGE(E) KKD COURTS DELHI Announced in open court on 09.02.11.