Delhi District Court
Smt. Chand Kaur vs Municipal Corporation Of Delhi on 4 February, 2010
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI
IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ(NW), ROHINI COURTS, DELHI
S157/08/2000
Smt. Chand Kaur
W/o late Sh. Jai Pal Singh
R/o Village: Sultanpur, Mazra,
Delhi110041. .....Plaintiff
Versus
1. Municipal Corporation of Delhi,
Through its Commissioner,
Town Hall, Chandni Chowk,
Delhi110006.
2. Zonal Dy. Comissioner,
Municipal Corporation of Delhi,
Rohini Zone, Sector5,
Rohini, Delhi110085. .....Defendants
Date of Institution of the Suit : 07.12.2000
Date of Reserve for Judgment : 21.01.2010
Date of final Judgment : 04.02.2010
JUDGMENT
1. Present is a suit seeking relief of Permanent and Mandatory Injunction and the brief facts necessary for its disposal are that initially a suit for Permanent injunction only was instituted on the averments that plaintiff is IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI the owner in possession of land measuring 500Sqr. Yds. in Khasra No.565, Village Sultanpur Mazra (hereinafter called the 'suit property') which was given to her by late Sh. Ghisu Ram, her father in law and plaintiff is in possession of the property since the life time of her husband and after the death of her husband, her fatherinlaw and his other sons tried to dispossess the plaintiff from the suit property which compelled her to file a suit for injunction which was ultimately dismissed by Sh. Harish Dudani, the then Ld. Civil Judge vide order and judgment dated 21.05.1994 against which she preferred an appeal wherein the respondents therein i.e. her fatherinlaw and his sons gave statement that they shall not dispossess the plaintiff except by due process of law and further the suit for possession filed by the sons of late Sh. Ghisu Ram i.e. her fatherinlaw was dismissed on merits and plaintiff has constructed three shops in the suit property but suddenly on 30.11.2000 some officials of defendant MCD alongwith 7080 persons came to the suit property and tried to demolish the construction raised therein. No notice was served to the plaintiff and by way of the suit it was prayed that defendant should be restrained from demolishing any portion of the suit property.
2. Since after filing of the suit the plaintiff was allegedly dispossessed, an amendment was carried out and suit was amended to a suit for Mandatory and Permanent Injunction asking the defendants to restore the property to its original condition and further being restrained from demolishing any portion.
3. In the written statement filed by defendants it is stated that suit is IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI barred by section 477/478 of DMC Act and further the plaintiff has concealed the fact that suit property is a government land and an encroachment removal action was taken as per lay out plan of MCD which is duly approved and the encroachment on the 20 ft. wide road was removed and as such plaintiff has no right, title or interest in the suit property and further the suit is barred by Section 41(h) of Specific Relief Act.
4. On the pleadings of the parties originally following four issues were framed by my Ld. Predecessors on 11.09.2002 and subsequent to amendment one additional issue 1(a) was also framed on 03.12.2003:
1. Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP
2. Whether the suit is bad for Section 477 and 478 of DMC Act?
OPD
3. Whether the plaintiff has not approached the court with clean hands and suppressed the material facts? OPD
4. Relief.
1(a). Whether the plaintiff is entitled to a mandatory injunction against the defendants as prayed for? OPP
5. My findings on the issues are as under. First I will take issue No.1 & 1(a).
ISSUE NO.1&1(a):
I will take both the issues together since they are interconnected. The onus of proving both issues was on the plaintiff, who has examined her son as PW1, who has reiterated the contents of its plaint and has stated that he is Special Power of Attorney of plaintiff (her mother) who is in possession of 500 Sqr.Yds. of plot vide site plan Ex.PW1/2. The plot was given to them by late IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI Sh. Ghisu Ram and thereafter plaintiff filed a suit for injunction which was dismissed, yet in appeal the brotherinlaws of the plaintiff gave a statement that they will not dispossess the plaintiff without due process of law and further the suit for possession filed against the plaintiff was dismissed by Ld. ADJ on 03.08.2003 vide Ex.PW1/4 and Ex.PW1/5. It was also stated that on 30.11.2000 defendant MCD tried to take unlawful possession of the property and thereafter a notice Ex.PW1/6 was served upon MCD subsequent to which the suit was filed. The witness was crossexamined wherein he has admitted that prior to filing of this suit, no notice was issued to MCD and only an application was given and further property in dispute is now a road and not in possession of his mother. MCD on their part have examined their Executive Engineer Sh. V.P. Dahia, who has filed on record the documents Ex.DW1/2 and Ex.DW1/3. He was also crossexamined wherein he has admitted that he is not aware that in private colony road and passages are provided by land owners nor he can identify the disputed property in the lay out plan Ex.
DW1/2 nor he can say that the property demolished is the private property of the plaintiff or not.
6. Ld. Counsel for the plaintiff has strongly argued that plaintiff has been able to show that she is in possession of the property as in the appeal filed by her against her brotherinlaws, they have admitted her possession and further MCD has failed to prove that the property is a government land and otherwise also DW's statement cannot be relief upon as he himself is not aware about the suit property nor can tell even the khasra No. where the suit IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI property is situated and as such plaintiff has been able to prove the issues in her favour.
7. I have heard his submissions. To claim the relief of injunction, the plaintiff is required to show that she has any personal interest in the property or is owner thereof. Record shows that the suit filed by the plaintiff for injunction against her brotherinlaws was dismissed by Sh. Harish Dudani, the then Civil Judge on merits. It was categorically held in that judgment that plaintiff has failed to prove that she is the owner of the property and as such the issue of ownership was decided against the plaintiff. Though admittedly she preferred an appeal against that order but same was compromised which shows that the order of Sh. Harish Dudani, the then Ld. Civil Judge attained finality in respect of the fact that plaintiff has no right, title or interest qua ownership in the property. A perusal of the judgment of Sh. Harish Dudani, the then Ld. Civil Judge as well as copy of the plaint filed by the plaintiff (after directions of this court) shows that plaintiff in this case has claimed herself to be the owner in possession of land measuring 350 Sqr.yds., which means that the plaintiff at the time of filing of that suit has claimed that she is in possession of only 350 Sqr.yds. whereas in the suit in hand she has claimed to be in possession of 500 Sqr.yds. It has not been specified or rather concealed by the plaintiff and further she has approached the court with unclean hands by concealing the fact that in the previous suit she has claimed to be in possession of 350 Sqr.yds. as mentioned in the judgment of Sh. Harish Dudani whereas in the case before me she has stated to be the owner in IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI possession of 500 Sqr.yds. Sh. Harish Dudani, the then Ld. Civil Judge while giving his finding on issue No.2 & 3 in that suit in respect of ownership and locusstandi of the plaintiff has categorically held that plaintiffs have failed to prove the ownership of the suit property and as such are not entitled to the relief of Permanent injunction.
8. In view of this specific finding as well as the fact that even in the suit before me, plaintiffs have failed to prove that they the owners of the property and further the fact that they have also failed to show that they were in possession of 500 Sqr.yds. as on the date of the suit, I am of the opinion that plaintiff has failed to show any personal right, title or interest in the suit property as well as her ownership and as such is not entitled to the relief of injunctions. The issues are, therefore, decided against the plaintiff.
9. It is also important to note here that admittedly MCD road is in existence in the property, which means that plaintiff is not in possession of the property and as such even the suit simplicitor for injunction is not maintainable as the plaintiff, if has any right, title or interest is required to file a suit for Possession and the suit seems to be barred by Section 41(h) of Specific Relief Act.
10. ISSUE NO.2:
The onus of proving this issue was also on the defendants. Admittedly IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI the suit was earlier for Permanent Injunction which was subsequently converted to Mandatory injunction. Suit for permanent injunction since of urgent nature are exempted by the statutory notice of two months and more so the purpose of the notice is to apprise the government body about any illegality or any inaction on their part. When the suit for permanent injunction was already subjudice, which was subsequently converted into mandatory injunction, plaintiff was not required to issue any notice as stipulated under DMC Act and as such this issue is decided against the defendants.
11. ISSUE NO.3:
The onus of proving this issue was on the defendants and as discussed the plaintiffs in their previous suit decided by Sh. Harish Dudani, the then Ld. Civil Judge, has stated that she is in possession of 350 Sqr.yds. which is also mentioned in the judgment of Sh. Harish Dudani and as such by concealing this fact in the present suit clearly shows that has not approached the court with clean hands and has suppressed the material facts and as such is not entitled to the relief of equity as prayed for. This issue is decided against the plaintiff.
12. RELIEF:
In view of my findings given on aforesaid issues, the plaintiff is not IN THE COURT OF SHRI AMIT KUMAR, JSCC/ASCJ/GJ/MM(NW), ROHINI, DELHI entitled to any relief, more so considering the fact that she not approached the court with clean hands. The suit, therefore, is dismissed with no order as to costs. Decree Sheet be prepared. File be consigned to Record Room.
Announced in the open Court (AMIT KUMAR)
on 04.02.2010 JSCC/ASCJ/GJ(NW)
ROOM NO.217, ROHINI
COURTS, DELHI