Delhi District Court
Judge Cum Rent Controller (North) Delhi vs Sh. Rai Singh @ Fauji S/O Late Sh. Ram Kala on 12 August, 2011
IN THE COURT OF SH. S.K.MALHOTRA, SENIOR CIVIL
JUDGE CUM RENT CONTROLLER (NORTH) DELHI.
Suit No. 334/00/93
1 Mohd. Saleem S/o Sh. S. Main
R/o S-72/A-29, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidul Ajaib
New Delhi-110030.
2 Smt. Mehru Nisa W/o Sh. Bikau Main
R/o S-72/A-53, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidul Ajaib,
New Delhi-110030
3 Smt. Chanderwati W/o Sh. Kallu Masi (now deceased)
Through her Legal Heirs.
(i) Shri Kallu (husband)
(ii) Shri Rajesh (Son)
(iii) Shri Ravi (Son)
(iv) Ms. Rajni (Daughter)
(v) ms. Rama (Daughter)
All R/o H. No. S/72A/6, I. G. Camp, Saidullajab M.B. Road,
Delhi-110030.
4 Sh. Gajraj Singh S/o Sh. Sani Lal
R/o S-72/A-5, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidul Ajaib
New Delhi-110030.
5 Sh. Mam Chand S/o Sh. Khacheru
R/o S-72/A-025, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidul Ajaib
New Delhi-110030.
6 Sh. Ram Dass S/o Sh. Khacheru
R/o S-72/A-75, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidul Ajaib
New Delhi-110030.
Suit No. 334/00/93 page 1 of page 9
7 Sh. Munshi Lal S/o Sh. Khem Chand
R/o S-72/A-22, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidul Ajaib
New Delhi-110030.
8 Smt. Reshmi W/o Sh. Swaran Singh
R/o S-72/A-61, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidul Ajaib
New Delhi-110030.
9 Sh. Mahesh Kumar S/o Sh. Ram Prit
R/o S-72/A-122, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidul Ajaib
New Delhi-110030.
10 Sh. Mohd. Nayim S/o Mohd. Hussain Mian
R/o S-72/A-21, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidul Ajaib
New Delhi-110030.
11 Sh. Mohd. Jamal S/o Mohd. Ibrahim
R/o S-72/A-20, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidul Ajaib
New Delhi-110030.
12 Sh. Ram Ugagar Yadav S/o Sh. Babu Lal Yadav
R/o S-72/A-13, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidul Ajaib
New Delhi-110030.
13 Sh. Ram Avtar S/o Sh. Krishan Lal
R/o S-72/A-23, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidul Ajaib
New Delhi-110030.
14 Smt. Jule Khan Khatoon W/o Sh. Sultan
R/o S-72/A-30, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidul Ajaib
New Delhi-110030.
15 Smt. Rabia Khatoon W/o Sh. Nasir Modh.
R/o S-72/A-18, Indira Gandhi Camp
Suit No. 334/00/93 page 2 of page 9
(I.G. Camp), M.B. Road, Saidul Ajaib
New Delhi-110030.
16 Smt. Khatoon W/o Sh. Saleem
R/o S-72/A-26, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidul Ajaib
New Delhi-110030.
17 Sh. Rajdev S/o Sh. Ram Kumar
R/o S-72/A-14, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidul Ajaib
New Delhi-110030.
18 Sh. Ghanshyam Paswan S/o Sh. Sehdev Paswan
R/o S-72/A-52, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidul Ajaib
New Delhi-110030.
19 Smt. Hadisun Nisa W/o Sh. Mohd. Idris
R/o S-72/A-15, Indira Gandhi Camp
(I.G. Camp), M.B. Road, Saidul Ajaib
New Delhi-110030. .............Plaintiffs
Versus.
1 Sh. Rai Singh @ Fauji S/o Late Sh. Ram Kala
R/o 122, Saidul Ajaib, M.B. Road, New Delhi.
2 Sh. Ishwar Dass S/o Not Known
R/o 122, Saidul Ajaib, New Delhi. ...............Defendants
Date of institution : 15.02.1993.
Date of reservation : 15.07.2011.
Date of pronouncement : 12.08.2011.
JUDGMENT
This is a suit for permanent injunction as filed on behalf of plaintiffs against the defendants.
Suit No. 334/00/93 page 3 of page 9
2. In brief, the facts of present case as made out in the plaint is that the plaintiffs have been residing after constructing their jhuggies with their meager funds in Indira Gandhi Camp (I.G. Camp), Saidul Ajaib, M.B. Road, New Delhi for the last so many years. Delhi Administration has assigned the jhuggis no. to the dwelling jhuggies of the plaintiffs and has also issued the rations cards in their names on the address of the respective jhuggies bearing no.S-72/A-29,-53,-6-5,-025,-75,-22,-61,-122-21,-20,-13,-23,-30,-18,-26,-14,
-52 & 15 as also mentioned against their names in the title of the case. It is stated that the plaintiffs have come to know that the land underneath their jhuggies belongs to the Govt.
3. It is the case of the plaintiffs that the defendants have absolutely no right, title or interest over the land underneath the jhuggies of the plaintiffs. It is stated that for the last about 11 days defendants along with some goondas of the locality and some from outside have been coming to the plaintiffs' jhuggies and have been threatening to vacate their jhuggies. It is alleged that the defendant no.2 who is an agent of defendant no. 1 had also come to the jhuggi cluster of the plaintiffs along with their companions on 01.02.1993 and threatened to vacate their jhuggies, by accepting Rs. 10,000/- each to which they did not agree. The defendants again on 11.02.1993 came and threatened the plaintiffs to vacate their jhuggies otherwise their jhuggies will be burnt and that they will be murdered. They also gave severe beatings to several plaintiffs for not obeying their order. It is further stated that the defendants and their agents have absolutely no right to take the law into their hands and to forcibly dispossess the plaintiffs from their respective jhuggies. Hence, the present suit for permanent injunction to restrain the defendants from forcibly dispossessing the plaintiffs from their respective jhuggies no. S-72/A-29,-53,-6-5,-025,-75,-22,-61,-122-21,-20,-13,-23,-30,-18,-26,-14,-52 Suit No. 334/00/93 page 4 of page 9 & 15 situated at Indira Gandhi Camp (I.G. Camp) Saidul Ajaib, M.B. Road, New Delhi is filed.
4. Defendant no. 1 contested the present suit by filing detailed written statement while taking preliminary objections, that the suit is not maintainable against the defendant no. 1 due to non-joinder and mis-joinder of the parties and plaintiffs should have impleaded Union of India as party in the suit; suit of the plaintiffs deserves to be dismissed under Order 7 Rule 11 CPC as the plaintiffs have no cause of action against the defendant no. 1; suit is not maintainable due to the fact that suit has been filed with malafide intentions and with malice; suit is not maintainable due to the failure of the plaintiff to show the ownership of the suit property; plaintiffs have no legal right in the suit premises and no prima facie case is made out in favour of the plaintiffs. On merits, the contents of the plaint have been denied by submitting that the plaintiffs have been living since 1989 except one plaintiff Sh. Mam Chand who is residing since 1984, and all are tenants and their tenancy has been terminated through the legal notice issued separately dated 18.12.1993 and according to that notice they can reside only for a period of one month from the service of the notice over the suit property. It is further submitted that the defendant no. 1 is the absolute owner of the suit property and he has got all rights, title of the suit property. It is prayed by the defendant no. 1 that the suit of the plaintiffs be dismissed with heavy costs.
5. Plaintiffs filed replication to the written statement of the defendant no. 1 by denying the facts as mentioned in the written statement, while re- affirming the contents as made in the plaint.
6. It is pertinent to mention over here that the plaintiff no. 5, 7, 8, 10, Suit No. 334/00/93 page 5 of page 9 13, 18 & 19 have admittedly vacated the suit premises, therefore, no relief is being claimed on their behalf as submitted by Ld. Counsel for the plaintiffs during the final arguments.
7. From the pleadings of the parties following issues were framed vide order dated 27.05.1998:-
1. Whether the suit is bad for mis-joinder and non-joinder of necessary parties ? OPP.
2. Whether the suit has been filed without any cause of action. ? OPP.
3. Whether the plaintiff is entitled to the decree of permanent injunction, as prayed for ? OPP.
4. Relief.
8. In support of its case, plaintiffs examined Mohd. Salim (Plaintiff no.
1) as PW-1, Mehrun Nisa as PW-2, Ram Ujagar Yadav as PW-3, Julekha Khatoon as PW-4, Chandrawati as PW-5, Gajaraj Singh as PW-6, & Ram Das as PW-7, Khatoon as PW-8, Smt. Shyam Kumar as PW-11. On the other hand, defendant no. 1 Sh. Rai Singh examined himself as DW-1.
9. I have heard ld. Counsel for parties as well as perused the material placed on record and written submission as filed on behalf of the defendant no. 1. My issue wise findings are as under:
Issue no.1.
Onus to prove this issue was upon the defendant. Ld. Counsel for the defendant argued that as per the case of the plaintiffs, the land underneath their jhuggies belongs to the Government, therefore, Union of India being owner of the suit property is necessary party for proper adjudication of the present suit. As per the case of the plaintiffs, defendants and their agents threatened to dispossess the plaintiffs from the suit property forcibly and it Suit No. 334/00/93 page 6 of page 9 is the plea of the defendant no. 1 as made out in written statement that the plaintiffs are his tenants and defendant no. 1 is the absolute owner of the suit property. In suit for permanent injunction to restrain the defendants i.e. Sh. Rai Singh /Fauji and his alleged agents defendant no. 2 from forcible dispossession of plaintiffs from the suit property Union of India is not a necessary party. Therefore, this issue is decided against the defendants and in favour of the plaintiff.
Issue no.2.
Onus to prove this issue was upon the defendant. Ld. Counsel for the defendant argued that suit is without any cause of action as defendants never gave any threat to the plaintiffs. Cause of action is bundle of facts. In the plaint, it is stated by the plaintiff that defendant no. 1 & 2 came to their jhuggies on 11.02.1993 and threatened to vacate their jhuggies otherwise, their jhuggies will be burnt and they will be murdered. It is further stated in the plaint that on 01.02.1993, the defendants threatened to dispossess the plaintiff from their jhuggies. A bare perusal of the plaint itself shows that the plaintiffs have a cause of action to file the present suit. Accordingly, this issue is decided against the defendants and in favour of plaintiff.
Issue no.3.
Onus to prove this issue was upon the plaintiffs. Ld. Counsel for the plaintiff argued that the plaintiffs have been residing after constructing their jhuggies on the suit land for the last so many years and the defendants have no right to dispossess the plaintiffs forcibly. On the other hand, Ld. Counsel for the defendant no. 1 argued that the plaintiffs are the tenants of the defendant no. 1 and their tenancy has been terminated through the legal notice dated 08.12.1993 and after notice, they can reside only for a month from the date of service of notice over the suit property. DW-1 in his cross- examination confirmed that the plaintiffs are in occupation of the disputed Suit No. 334/00/93 page 7 of page 9 suit properties of their own and the disputed property was never let out to them by any person. To a specific question as put by Ld. Counsel for the plaintiffs DW-1 deposed that he does not remember the date of occupation of the disputed property by the various plaintiffs. DW-1 further deposed that he had given the notice to the plaintiffs to vacate the disputed land. DW-1 further confirmed that no rent has been paid by the plaintiffs to him till date and further denied the suggestion that he intends to dispossess the plaintiffs on the disputed site forcibly. In an authority, reported as 2008 (1) RCR Civil tittled Sri Thimmaiah Vs. Shabira and Ors. it was held as under:-
"Specific Relief Act, 1963, Section 38 - Civil Procedure Code, Order 39, Rules 1 and 2 - Suit for permanent injunction to restrain the defendant from interfering with the peaceful possession and enjoyment of the property - Before an injunction can be granted it has to be shown that the plaintiff was in possession".
Adverting back to the facts of the present case the possession of the plaintiffs in respect of their respective jhuggies underneath land in question is not in a dispute by defendants. Although the defendant no. 1 took the plea that he is owner of the land underneath plaintiffs have constructed their jhuggies but no evidence to this effect is led by defendant no. 1. It is also admitted by the defendant no. 1 that the disputed property was never let out to plaintiffs by any persons and the plaintiffs are in a occupation of the suit property of their own. Therefore, defendants have no right to dispossess the plaintiff forcibly from their respective jhuggies as shown in the site plan filed along with plaint. Accordingly, this issues is decided in favour of plaintiffs and against the defendants.
Suit No. 334/00/93 page 8 of page 9 Relief.
In view of my findings on the above issues, suit of the plaintiffs is decreed along with costs in favour of plaintiffs and against the defendants and a decree of permanent injunction is passed in favour of plaintiffs and against the defendants, to restrain the defendants from forcibly dispossessing the plaintiffs from their respective jhuggies no. S-72/A-29,-53,-6-5,-025,-75,-22,-61,-122-21,-20,-13,-23,-30,-18,-26,-14,-52 & 15 situated at Indira Gandhi Camp (I.G. Camp) Saidul Ajaib, M.B. Road, New Delhi as shown in site plans Ex. PW-1/4, Ex. PW-4/4, Ex. PW-2/4, Ex. PW-3/4, Ex. PW-10/4, Ex. PW-7/5, Ex. PW-8/4, Ex. PW- 9/3, Ex. PW-11/4 filed along with the plaint. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in open court ( S.K.MALHOTRA ) on 12.08.2011. SCJ/RC/(North)/DELHI Suit No. 334/00/93 page 9 of page 9