Delhi District Court
Shri Shyam Mishra vs Shri Karam Chand Tyagi on 23 August, 2014
IN THE COURT OF SHRI DHARMENDER RANA : ADDITIONAL SENIOR CIVIL
JUDGE : JSCC : GUARDIAN JUDGE, KARKARDOOMA COURTS (EAST)
Suit No. 343/07
Old Suit No. 805/90
Unique Case ID No. 02402C0088912005
1. Shri Shyam Mishra
S/o Sh. R.S. Misra,
R/o S3B, School Block,
Shakarpur, Delhi 92
.....Plaintiff
Vs.
1. Shri Karam Chand Tyagi,
S/o Shri Khacheru
2 Sh. Lakhmi,
S/o Shri Karam Chand Tyagi,
3 Sh. Kiran
All R/o H. No. 45,
Village Shakarpur Khas,
Delhi 92
4 Municipal Corporation of Delhi
Service to be effected through its
Commissioner, Town Hall, Delhi
....... Defendants.
Date of institution of the suit : 16.11.1990
Date on which order was reserved: 19.08.2014
Date of decision : 23.08.2014
SUIT FOR PERMANENT PROHIBITORY INJUNCTION & MANDATORY
INJUNCTION.
JUDGMENT
The present suit has been filed by the plaintiff against the defendants for permanent prohibitory and mandatory injunction. The brief facts as narrated in the plaint are that the plaintiff is the owner, occupant and in possession of the property bearing no. S3B, School Block, Shakarpur, Delhi92, constructed over a piece of land measuring about 300sq. Yards out of khasra No. 183, situated at village Shakarpur Khas, Illaqa Shahdara, Delhi92, comprising of boundary wall and two rooms. It is averred that the plaintiff came into possession of the property by way of an Agreement to sell and General Power of Attorney executed on 17.3.1980 by its then owner Shri Durga Prashad (now deceased) son of late Shri Bhondu. It is claimed in the plaint that the plaintiff had been using, occupying and enjoying the said property since then and there was no obstruction from any quarter to the peaceful possession of the plaintiff over the suit property. It is averred that in the month of January 1985, the plaintiff apprehended the threat of his dispossession from the suit property by MCD and hence he had filed a suit for injunction against MCD on 31.1.1985 having no. 106/85 and said suit is pending in the court of Smt. Pratibha Rani, Sub Judge, Delhi, (as the Hon'ble Lordship was then). It is averred that the unlawful threat of MCD to dispossess the plaintiff was stayed by the Hon'ble Delhi High Court. It is alleged that the defendants no.1 to 3 have encroached upon the public street as shown between 'A' and 'B' in the site plan. It is further claimed that defendants no.1 to 3 have unauthorizedly raised construction without a proper sanction Plan from the defendant no. 4 and that too on a public street. It is further alleged that after crossing over the said public street, the defendant no. 1 to 3 have further attempted to transgress into the plaintiff's property. It is further alleged by the plaintiff that the defendants No. 1 to 3 have done so in connivance with the officials of the defendant no. 4.
2. It is alleged that defendants tried to encroach upon the plaintiff's property in the last week of October, 1990 and the first week of November, 1990 but they did not succeeded in their evil design. Plaintiff had reported the matter to the police on 30.10.1990 that some unknown persons had placed some bricks in front of his house and requested that same be removed from there. It is further alleged that the defendants demolished the southwest wall of the plaintiff's house on 12.11.1990 and raised a new wall and fixed gates Mark X and Y shown in the site plan taking advantage of the plaintiff's absence. Plaintiff reported the matter to the police. It is averred that police intervened and one of the gates was locked and its key was handed over to Master Jeet Singh of the said locality in order to avoid/avert any unlawful incident and to restore peace. It is alleged that the defendants extended threats to the plaintiff to forcibly dispossess him from the suit property and to transgress into the same. Hence the present suit.
3. The summons of the suit were issued to the defendants and after service the defendant no. 1 to 3 appeared and filed their joint written statement.
4. In written statement defendant no. 1 to 3 have taken preliminary objection that the plaintiff has no locus standi to file the present suit against the answering defendants because he had no right, title or interest in property No. S3B, School Block, Shakarpur, Delhi. It is averred that in fact the property initially belonged to Gram Sabha of Village Shakarpur and it was common property and kept for common use, occupation and enjoyment of the occupants/villagers. It is further averred that the answering defendants have been enjoying the said land for their right of way leading to the main (Patpar Ganj) now known as R.O.B. 36 (Road Over Bridge). It is also averred that the plaintiff has encroached upon the said land in connivance with some Municipal Officer and one Shri Durga Prashad with whose help he has procured and manipulated forged documents. It is further averred that the present suit is not maintainable as the plaintiff has concealed and suppressed the material and relevant facts from this court. It is averred that the suit of the plaintiff is admittedly full of latches and delay. The answering defendants further claimed that admittedly the plaintiff has stated that the alleged door 'X' is in existence since long which is the only door having access to the main Patpar Ganj Road. Defendant no.1 to 3 have also disputed the site plan filed by the plaintiff. It is further averred that the suit is absolutely malafide which has been filed by the plaintiff with an ulterior motive of grabbing the public land and further to infringe the easementary right of the answering defendants through the Gate 'X' installed in property no. S4, leading to the main Patpar Ganj Road. The property in which the door 'X' is installed or built belongs to Shri Krishan Chand, the brother of defendants no. 2 and 3, who has not been impleaded by the plaintiff in the present suit with an ulterior motive. It is further averred that the defendants no. 2 and 3 as well as their brothers Manak Chand and Krishan Chand are enjoying commonly the easementary right of way through the door 'X'. It is claimed that the suit is bad for misjoinder of defendant no.1, who has unnecessarily been impleaded in the suit by the plaintiff despite the facts that he has no concern with the subject matter of the suit. It is further claimed that the suit is also bad for nonjoinder of Manak Chand and Krishan Chand, who are the brothers of defendants no. 2 and 3 and the owners of the adjoining properties. It is further alleged that plaintiff has not come to this court with clean hands because he has concealed and suppressed the material and relevant facts therefore he is not entitled to any relief except dismissal of suit with cost.
5. While, in the reply on merits, the defendants no. 1 to 3 have denied that the plaintiff is the owner and occupant of property No. S3B, School Block, Shakarpur, Delhi and contended that infact plaintiff is merely a trespasser and an unauthorized occupant therein. The defendants have also disputed that the plaintiff came into possession of the property in question by way of agreement to sell and Deed of GPA allegedly executed by the deceased Durga Parshad, who himself was not the owner of the same. It is denied that the answering defendants have encroached upon the public street as shown between A and B in the site plan or that they have raised construction unauthorizedly. It is contended that in fact the plaintiff himself has blocked the road and there was no street between point A and B. It is further denied by the answering defendants that they tried to encroach upon the plaintiff's property in the last week of October, 1990 and first week of November, 1990. It is contented by the answering defendants that the answering defendants are very peace loving and law abiding citizen and they have been requesting the plaintiff not to interrupt, disturb in their easementry right of passage through their two doors, which have been shown as 'X' and 'Y' by the plaintiff. It is further submitted that the plaintiff with an ulterior motive of creating false evidence might have lodged the alleged complaint with Local Police but no police officials came to the answering defendants in respect of alleged complaint.
6. It is further denied that the answering defendants demolished the SouthWest wall of plaintiff's house on 12.11.1990 and raised a new wall and or fixed the gate mark 'X' and 'Y' in the site plan, as this fact is quite contradictory to plaintiff's own report bearing DD No. 16A, dated 13.11.1990 lodged with police station Shakarpur, Delhi. It is also denied that any key of the lock of the doors of the answering defendants was handed over to any Master Jeet Singh. It is further claimed that the answering defendants are having their open approach through the said doors 'X' and 'Y' and the door Mark 'Y' has no shutter while door 'X' has a gate of iron grills and it remain open for having access to the main road and whenever the defendants' brother Kishan Chand needed for security purposes, used or used to put his own lock. The answering defendants stated that they have never threatened the plaintiff to dispossess the plaintiff forcibly from the suit property but they only requested him not to create or cause any obstruction to them in the enjoyment of their said easement right of way. The defendant no. 1 to 3 prayed for dismissal of suit.
7. Written statement has also been filed by the defendant no. 4, MCD. The defendant no. 4 has took the defence that the suit land is Government/ Public land. The plaintiff as well as the defendant no. 1, 2 & 3 have no right or authority to encroach upon the said land. The alleged structures are placed on the public land with an intention to encroach upon public land. The said structures are liable to be removed without notice. The defendant MCD has also alleged that the present suit has been filed by the plaintiff in collusion to encroach upon the Government / public land. The defendant MCD has also contended that in fact, as per the approved lay out plan of the area, land in question is a public land meant for local shopping center. The MCD further claimed that the colony under reference has been handed over to the MCD by the DDA on 31.12.1986. The defendant (MCD) also prayed for the dismissal of the suit.
8. Replication to the written statement of defendants was filed by the plaintiff. The plaintiff has denied all the contention raised by the defendants and reaffirmed and reiterated the averments made in the plaint. On the pleadings of the parties, following issues were framed on 03.09.1998 as under :
1. Whether the defendants have easmentary right of passage, as claimed in PO no. 1 over the land in dispute? OPD.
2. Whether the present suit is not maintainable in the present form as alleged in PO no. 2? OPD.
3. Whether the suit is bad due to non joinder and mis joinder of parties ? OPD.
4. Whether the plaintiff is entitled for the relief of permanent and mandatory injunction, as claimed for? OPP.
5. Whether the plaintiff has locus standi to file the present suit? OPP.
6. Whether the plaintiff has no cause of action for filing the suit?
7. Relief?
9. The plaintiff has examined himself as PW1, Sh. Lalit Mohan as PW2 and Sh. Niranjan Singh as PW3. The plaintiff has also relied upon the document Ex. DW1/P1 to DW1/P4 as well as on the site plan. The defendant no. 1 to 3 has examined three witnesses namely Kiran Chand Tyagi as PW1, Sanjeev Kumar Tyagi as PW2 and Shyam Bir as DW3. The DW1 has relied upon the documents Ex. DW1/1 to DW1/9. The DW3 has also placed on record document Ex. DW3/A & DW3/B. The defendant no. 4, MCD has also examined one witness D4W1. The witness D4W1 has relied upon document Ex. D4W1/1 to D4W1/3.
10. I have heard the arguments from counsel for the parties and perused the file carefully. My issue wise finding is as under: ISSUE NO. 1 Whether the defendants have easmentary right of passage, as claimed in PO no. 1 over the land in dispute? OPD.
11. The onus to prove this issue was placed upon defendant no. 1 to 3. It is argued on behalf of defendant no.1 to 3 that defendant no.1 to 3 have easementary right of way over the suit property. In order to substantiate their claim, defendant no.1 to 3 placed reliance upon the testimony of defendant no.1.
12. However, in order to establish the right of passage, as per section 15 of the Indian Easement Act 1982, it is incumbent upon the person claiming easementary rights to prove that the said right has been peacefully, openly and without any interruption, enjoyed by that person for a period of 20 years. In the case at hand, defendant no.1 to 3 have miserably failed to bring on record any evidence to the effect that they have been openly, peacefully and without interruption enjoying the right of way through plot no. S B3, School Block, Shakarpur for a period of 20 years. In the absence of any evidence to the contrary, it cannot be presumed that the defendants have been enjoying such a right for over 20 years. Reliance is placed upon AIR 1976 J & K 23 & AIR 2008 MAD 69. Consequently, this court is of the opinion that defendant no.1 to 3 have miserably failed to discharge the onus placed upon them. Accordingly issue no. 1 is decided in favour of the plaintiff and against the defendant no. 1, 2 & 3.
ISSUE NO. 2 Whether the present suit is not maintainable in the present form as alleged in preliminary objection no. 2 ? OPD.
13. Onus to prove this issue was placed upon defendant no. 1 to 3. Ld. Counsel for the defendant no.1 to 3 has argued that the suit is not maintainable in the present form as plaintiff has concealed and suppressed material and relevant facts from this court. However, the defendants are silent as to what material and relevant facts have been suppressed and concealed from the court. It appears that this objection has been mechanically taken without any intent of seriously pursuing it. Even during the course of arguments Ld. Counsel for defendants has opted not to address any arguments on the said issue. Since the defendants have miserably failed to discharge the onus placed upon them. This issue is also decided in favour of the plaintiff and against the defendant no.1 to 3.
ISSUE No. 3 Whether the suit is bad due to non joinder and mis joinder of parties ? OPD.
14. The onus to prove this issue was also placed upon defendant no. 1 to 3. The present suit has been filed by the plaintiff for permanent and mandatory injunction. The plaintiff has specifically leveled the allegation against the defendants only and not against any other person. The relief of injunction is a relief in personam. Plaintiff cannot be compelled to litigate against any person against whom is not having any grievances. This issue also appears to have been taken mechanically by the defendants. Since the defendants have miserably failed to discharge the onus placed upon them, this issue is also decided in favour of the plaintiff and against the defendants. Issue No. 4.
4. Whether the plaintiff is entitled for the relief of permanent and mandatory injunction, as claimed for? OPP.
15. The onus to prove these issues was placed upon the plaintiff. In the instant suit the plaintiff is seeking the following permanent and mandatory injunctions:
(i) Defendants be restrained from transgressing into the plaintiff's property and obstructing in his peaceful possession over the suit property.
(ii) The plaintiff is also seeking relief of mandatory injunction seeking direction for the defendants to restore the property of the plaintiff in its original condition by removing the gate mark X and Y and closing the space by pucca brick wall.
(iii) Plaintiff is further seeking injunction that defendants be restrained from raising any construction over the 15 feet wide street which separates the house of the plaintiff and defendant no.1 to 3.
16. The Ld. Counsel for plaintiff has argued that plaintiff is entitled for permanent and mandatory injunction being in settled possession of the suit property. It is contended on behalf of the plaintiff that in a suit for injunction the court is not required to enter into issue of ownership of the suit property. It is contended by the counsel for the plaintiff that merely on the basis of possession, a simplicitor suit for injunction is maintainable. It is argued that since the plaintiff has successfully proved his possession in the suit property, he is entitled for the relief of injunction.
17. It is fairly admitted by the counsel for the plaintiff that suit bearing no. 106/85 titled as Shyam Mishra Vs. MCD and others was also filed by the plaintiff herein which was subsequently dismissed by the trial court vide judgment Ex.D4W1/1. However, it is argued that the facts and circumstances for instituting the present suit is entirely different from the abovesaid previous suit. It is further argued that defendant no.1 to 3 were not party to the previous suit. The plaintiff has relied upon the following judgments:
(i) (2004) 1 SCC 769, Rame Gowda (Dead) by Lrs. Vs. M. Varadappa Naidu (dead) by Lrs. and Anr.
(ii)(2007) 14 SCC 200, Ramji Rai & Anr. Vs. Jagdish Mallah & Anr.
(iii) 2008 (4) SCC 594, Anathula Sudhakar Vs. P. Buchi Reddy (dead) by LRs and Ors.
(iv) AIR 2000 Supreme Court 3580, State of Haryana & Anr. Vs. Mohinder Pal & Ors.
(v) (1975) 4 SCC 518, Puran Singh & Ors. Vs. State of Punjab.
(vi) (2004) 3 SCC 277, Kunjan Nair Sivaramn Nair Vs. Narayan Nair & Ors.
18. On the contrary, counsel for defendant no.1 to 3 has heavily relied upon the judgment of the trial court Ex. D4W1/1. It is argued that the judgment Ex. D4W1/1 has been upheld even by the Hon'ble Delhi High Court.
19. Ld. Counsel for defendant no.4 has opted not to address any arguments or file any written submissions despite opportunity.
20. During the course of arguments, it was informed by the counsel for plaintiff himself that a special leave petition of the plaintiff herein against the judgment Ex. D4W1/1 has already been dismissed by the Hon'ble Apex Court.
21. I concur with the counsel for the plaintiff that ordinarily the court is not required to enter into the issue of title in a simplicitor suit for injunction. However, in cases where de jure possession has to be established on the basis of title to the property, the issue of title may directly and substantially arise for consideration, as without a finding thereon it will not be possible to decide the issue of possession. Thus one cannot say that it is absolutely impermissible for the courts to enter into the issue of title in injunction suits. Moreover, no injunction can be granted against a true owner in favour of an encroacher. Thus, I do not find any force in the submission of counsel for plaintiff that in no case of injunction the issue of title can be examined by the court.
22. I had an occasion to peruse the judgment Ex. D4W1/1, which is the judgment passed by the Ld. Civil Judge in suit bearing no. 106/85 titled as Shyam Misra Vs. MCD and ors., on 03.03.2003. The Ld Trial court has observed that plaintiff is not the owner of the suit property as well as is not in settled possession of the suit property. The suit property in the former suit bearing no. 106/85 and in the present suit is same property. The plaintiff, Shyam Mishra, has preferred an Appeal against the judgment dated 03.03.2003 passed in the suit bearing number 106/85. The Ld. First Appellant Court vide its judgment dated 07.08.2004 has upheld the finding of the trial Court and observed as : "13. However, in this case, appellants have failed to prove even their settled possession. Appellant no. 1 has claimed that he was put in the possession in the suit property in the year 1974 by Shri Durga Prasad S/o. Bhondu, who was owner of a piece of land ad measuring 4000 sq. yards in Khasra No.183, Village Shakar Pur. According to the appellant no. 1, he had purchased 300 sq. yards land from Durga Prasad against sale consideration amounting to Rs. 4000/. However, no document in this regard was executed in the year 1974. There is no documentary evidence to show that the appellant no. 1 was put in possession of the suit property right from 1974. Admittedly, Bhondu was alive at that time. It is highly improbable that son of Bhondu namely Durga Parsad could have sold the land and had put appellant no. 1 in possession even during the life time of his father, who according to the appellant was the owner of the said land. Besides this, the subsequent agreement to sell dated 17.03.1984 Ex. PW3/B, on the face of it, appears to be a fabricated document. Ex. PW3/B is photocopy of the agreement to sell, original whereof was also placed on record by the appellant during the trial. In the original document, appellant no. 1 besides one Sh. Jagan Singh has signed as witness to the said agreement. However, in the photocopy of this document, which has been proved as Ex. PW3/B and which was placed on record at the time of filing of suit, signatures of Jagan Singh are not appearing . This clearly shows that interpolations were made by the appellant no. 1 in the agreement to sell subsequently filed unmindful of the fact that he had already placed the photocopy of the agreement to sell on record at the time of filing of this suit. Besides this, neither date of earlier oral agreement nor the date of possession has been mentioned. The agreement to sell is suspicious document. It is also not understood as to why the sale deed was not executed. In the GPA, there is no mention of the agreement to sell nor it has been mentioned that Durga Parsad had handed over the possession of the suit property to the appellant no. 1 in the year 1974. Even agreement to sell and GPA are not in consonance with each other. No other Revenue Record has been produced to show that appellants were recorded owner of the suit property. This shows that the appellants had no right, title or interest in the suit property.
14. So far as the possession of the appellant is concerned, same also does not appear to be settled possession. First of all, the house tax assessment receipts, notices issued by MCD and receipts issued by DVB regarding the electricity connection can not take place of document of the title. Beside this, these documents are also not sufficient to show the settled possession of the appellant no. 1. Ex. PW1/1 is the notice under Section 124 (5) of the DMC Act and is dated 21.08.1986. Ex. PW1/2 is the house tax receipts issued on 14.02.1987. Ex. PW2/1 is the receipt issued by DDA dated 12.11.1987. PW3/C is the license issued by MCD under Section 416417(1) of the DMC Act dated 21.03.1984. Ex. PW3/C is the receipt issued by DVB dated 27.04.1984 respectively towards the electricity connection. Ex. PW3/F is the receipt issued by MCD dated 27.04.1987. These documents are not sufficient to show the settled possession of the appellant no. 1 in the suit property. The suit was filed in the month of January 1985. Most of the receipts and / or other documents have been issued after the filing of the suit. Even the receipts which pertain to the year 1984 have been issued only about 4 - 5 months before the filing of the present suit. It clearly shows that the appellant no. 2 & 3 are concerned, no documentary evidence has been placed on record to show their settled possession. Prolonged possession of immovable property can be termed as settled possession but the documents placed on record do not show prolonged possession of the appellant no. 1. thus, even appellant no. 1 cannot be said to be in settled possession of the suit property.
15. Since the appellants have failed to prove their right, title or interest in the suit property nor had succeeded in proving their settled possession, they are not entitled to relief of permanent injunction as prayed for. Even the conduct of the appellant is not above board. Since appellants produced fabricated document they were, otherwise, not entitled to the relief of permanent injunction, as prayed for.
16. In Premji Ratansey Shah & Ors. V/s. UOI & Ors. JT 1994(6) SC 585, Hon'ble Apex Court has held that no injunction can be granted in favour of encroacher and against the true owner. Since appellants have failed o show their legal right in the suit land and their status is that of an encroacher they were not entitled to decree of permanent injunction against the true owner i.e., respondent no. 1."
23. Thereafter, the plaintiff Shyam Mishra had preferred the RSA 225/2007 before the Hon'ble High Court of Delhi against the order of Ld. First Appellate court in suit no. 106/85. The Hon'ble High Court of Delhi vide its judgment dated 06.12.2005 had disposed off the RSA 225/04 and had dismissed the Regular Second Appeal of the plaintiff Shyam Mishra by upholding the findings of the Ld. Trial Court and the finding of Ld First Appellant Court. It is informed to the court by the plaintiff that his SLP against the judgment of the trial court has already been dismissed by the Hon'ble Apex court.
24. Thus, there is a conclusive judicial pronouncement against the plaintiff herein that he is neither the owner nor in settled possession of the suit property. The said finding is very much relevant and admissible in evidence against the plaintiff herein u/s 42 of the Indian Evidence Act which is reproduced herein for ready reference: "Judgments, orders or decrees other than those mentioned in section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.
Illustration: A sues B for trespass on his land. B alleges that existence of a public right of way over the land, which A denies.
The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists."
25. The facts of the case at hand are squarely covered by the illustration appended with section 42 of Indian Evidence Act. The plaintiff herein is seeking to restrain the defendants from interfering in his possession in the suit property on the basis of his ownership claim relying upon the same documents which have not only been discarded in the former suit no. 106/85 but the court even went on to question the sanctity of the same and observed the title documents to be "fabricated documents". The said findings have been upheld even upto the Hon'ble Apex court. The plaintiff has not brought on record any evidence which would have enabled him to prove that the said finding is not applicable or relevant against him in the instant matter rather he is relying uopn the same title documents which already could not withstand the judicial scrutiny and were discarded as fabricated.
26. The plea of the plaintiff that the judgment Ex. D4W1/1 is not relevant as defendant no.1 to 3 were not a party in former suit no. 106/85 does not holds any water as MCD was defending both the suits and mere addition of three more defendants would not efface the judgment against the plaintiff. Furthermore, in the matter of Tirumala Tirupati Devasthanams Vs. K.M. Krishnaiah (MANU/SC/0173/1998), Hon'ble Apex court has observed that a judgment in a dispute over the same land between two other persons could be used by a party in a case in which the same land is in dispute though he was not a party to the earlier proceedings.
27. Furthermore, I also cannot but disagree with the counsel for the plaintiff that the finding in the former suit no. 106/85 is not relevant in this case as the cause of action in the instant matter is different for the simple reason that matter directly and substantially in issue in the former suit and the present suit is evidently identical. In both the suits the plaintiff is seeking to protect his possession in the suit property by praying for the relief of injunction against the defendants claiming himself to be the owner and in settled possession of the suit property.
28. Thus once the issue of ownership and possession of the suit property has been decided against the plaintiff herein uptill the Hon'ble Apex Court, it is not legally permissible for the plaintiff to reagitate the same issue by simply adding the defendants. Once it is settled that the plaintiff has no right, title or interest in the property and it has been observed in a judicial finding that they are encroachers and the ownership documents relied upon by the plaintiff are of dubious character, the plaintiff is not entitled for the relief of injunction, which is an equitable relief.
29. Further, it has been observed by the Hon'ble Apex court in the matter of Anathula Sudhakar Vs. P. Buchi Reddy (Dead) By Lrs & Ors, date of decision: 25 March, 2008 Appeal (civil) 6191 of 2001 that: "11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction."
30. Thus in light of the mandate of Anathula Sudhakar Vs. P. Buchi Reddy (supra) a simplicitor suit for injunction is not maintainable when the title of plaintiff is under a cloud and he has been conclusively adjudicated not to be in settled possession.
31. As a cumulative effect of the aforesaid discussion, I am of the opinion that plaintiff is not entitled for the relief as prayed for. Accordingly issue no.4 is decided against the plaintiff and in favour of the defendants.
Issue No. 5
5. Whether the plaintiff has locus standi to file the present suit? OPP.
32. It is argued on behalf of the plaintiff that the plaintiff is in settled possession and has every right to protect his possession by filing the instant injunction suit.
33. On the contrary it is argued by the counsel for defendant no.1, 2 and 3 that once it has been conclusively opined against the plaintiff that he has no right, title or interest in the suit property, he cannot claim to have any locus standi to file the instant suit.
34. As per provisions of section 41 (j) of Specific Relief Act, 1963 an injunction cannot be granted when the plaintiff has no personal interest in the matter. As discussed above, one cannot escape the conclusive finding that the plaintiff has got no right, title or interest in the suit property and thus as per provisions of section 41 (j) of the Specific Relief Act, injunction cannot be granted in his favour. Thus I do not have any hesitation in holding that plaintiff has no locus standi to file the instant suit. This issue is accordingly decided in favour of the defendant and against the plaintiff. Issue No. 6 Whether the plaintiff has no cause of action for filing the suit?
35. It is contended on behalf of the plaintiff that defendant Kiran Chand Tyagi (DW1) in his cross examination has admitted that on 12.11.1990 with the intervention of police one gate was locked and keys of the same were given to Master Jeet Singh. It is further highlighted that defendant Kiran Chand Tyagi has also admitted to have filed a case u/s 133 Cr. PC against the plaintiff herein in the court of SDM Shahdara after the dispute. It is thus argued that the defendant has himself admitted that there was a dispute pertaining to the suit property and the plaintiff has every right to agitate his grievances before this court by instituting the present suit.
36. Counsel for defendants has opted to remain silent on the instant aspect and it appears that the objection has been mechanically taken by the defendants without any serious intent of prosecuting the same.
37. Cause of action is merely a bundle of facts which gives rise to a right to the plaintiff to seek judicial redressal of his grievances. From the testimony of the defendant and the material available on record it is evident that there was a dispute between the parties pertaining to the suit property and the plaintiff has a cause of action in his favour to approach the court and seek judicial redrssal of his grievances. The issue is accordingly decided in favour of the plaintiff and against the defendants. RELIEF In view of the above said discussions, I am of the view the plaintiff is not entitled for any injunction as claimed by him. The suit of the plaintiff is dismissed. Decree sheet be prepared accordingly.
38. Before parting, this court is anguished and appalled by the casual and cavalier approach of the plaintiff herein. There cannot be any second thought about the right of a citizen to seek judicial redressal of his grievances by instituting a suit but at the same time the right to litigate cannot be reduced into an exercise in wager or an activity of amusement. The menace of frivolous and luxurious litigation is damaging public cause on twin counts. On the one hand, a casual litigant stalls the development work by nonchalantly involving public land in a litigation and on the other hand it tantamounts to a direct onslaught upon the fundamental rights of the litigants to seek speedy and effective justice by unnecessarily over burdening the dockets and directly impinging upon the sacrosanct judicial time. The plaintiff herein has filed suit no. 106/85 seeking to establish his right over the public land and has stalled the development work thereon for several years by contesting the claim upto the Hon'ble Apex court. Unsuccessful in his insidious design to grab public land, the plaintiff has come up with the instant litigation by simply adding three more defendants, without any right, title or interest in the suit property. The Hon'ble Apex court has expressed its concern over the menace of luxurious and frivolous litigation and has cautioned the trial courts to impose appropriate and realistic cost upon the casual litigants. Reliance is placed upon "Maria Margarida Sequeria Fernandes and Ors. Vs. Erasmo Jack De Sequeria (Dead) through L.Rs., (MANU/SC/0225/2012)" and "Ram Rameshwari Devi and others Vs. Nirmala Devi and others, date of decision 04.07.2011 ((MANU/SC/0169/2011).
39. In the case at hand from the testimony of PW2 Shri Lalit Mohan it is evident that the plaintiff has let out the suit property at a monthly rent of Rs.400/ w.e.f. 20.03.1980. It would be highly unjustified that the plaintiff be permitted to not only reap the profits of his ill gotten gains but also escape unscathed with a self perceived notion that there is a premium over dishonesty in this country. The abovesaid rental income can be taken as a reference for calculating the amount of realistic costs to be imposed upon the plaintiff for filing the instant litigation. Thus I am of the opinion that taking a moderate view of the situation atleast a cost of Rs.1,15,200/ [24 years (the period of pendency of the instant suit) x 12 months x Rs.400/] ought to be imposed upon the plaintiff to be deposited with DLSA within a fortnight of the instant judgment.
40. The court is further in pains to state that no endeavour appears to have been put in by EDMC to reclaim the public land despite winning the case uptill the Hon'ble Apex Court. The indolence on the part of the authorities is sacrilegious to the public trust and faith reposed in them. A copy of the instant order be accordingly sent to the worthy commissioner EDMC who may, if desirable, take appropriate steps to reclaim the public land.
41. A copy of the instant order be also sent to Ld. Secretary DLSA East, who may, if required, take appropriate steps for recovery of the cost amount. File be consigned to Record Room after necessary compliance.
Announced in the open court ( Dharmender Rana)
on this 23rd day of August 2014. ASCJ/JSCC/G. Judge (East)
Karkardooma Courts, Delhi.