Delhi District Court
Sh. Amar Nath vs Sh. Kishan Sahai (Since Deceased) on 11 January, 2013
1
In the court of Sh. Vivek Kumar Gulia
Additional Rent Controler cum CCJ (North District)
Tis Hazari Courts, Delhi.
Suit No. 207/2006/1978
Unique I.D. No.02401C0117572002
In the matter of :
Sh. Amar Nath
S/o Late Sh. Khazan
R/o Village & Post - Dhakka
Delhi110009. ..........Plaintiff
Versus
1. Sh. Kishan Sahai (since deceased)
Through his legal heirs
(A) Pratap Singh S/o Late Sh. Kishan Sahai
(B) Sh. Pushkar S/o Late Sh. Kishan Sahai (since deceased)
Through his legal heirs
(i) Smt. Bal Chauhan W/o Late Pushkar
(ii) Priyanka D/o Late Pushkar
(iii) Rahul S/o Late Pushkar
(iv) Anuj S/o Late Pushkar
2. Sis Ram S/o Buche (since deceased)
through his legal heirs
Om Prakash S/o Late Sis Ram (since deceased)
Through his legal heirs
Page 1 of 8 Suit No. 207/2006/78
2
(A) Sh. Sukhpal S/o Late Om Prakash (since deceased)
Through his legal heirs
(i) Munni Devi W/o Late Sukhpal
(ii) Sanjay S/o Late Sukhpal
(iii) Manish S/o Late Sukhpal
(iv) Sunita D/o Late Sukhpal
(B) Mahipal S/o Late Om Prakash
(C) Vinod S/o Late Om Prakash
(D) Naresh S/o Late Om Prakash
(E) Rajeshwari D/o Late Om Prakash
(F) Sunita D/o Late Om Prakash
3. Sh. Kiran Singh S/o Late Mulkhi
4. Sh. Risal S/o Late Fateh
5. Sh. Pahlad S/o Sh. Ram Singh (since deceased)
through his legal heirs
(A) Sh. Rejender Kumar S/o Late Prahlad )
(B) Sh. Ashok Kumar S/o Late Prahlad
All R/o Village & Post Dhakka, Delhi110009.
(C) Smt. Kamlesh W/o Sh. Jai Kishan D/o Late Prahlad
R/o vill. Khera, P.O. Ghaziabad, UP.
(D) Smt. Babita W/o Sh. Dinesh D/o Late Prahlad
R/o Village Soongarpur, Delhi.
(E) Smt. Savita W/o Hari Dutt D/o Late Prahlad
R/o Village Tigipur, Delhi.
6. Sh. Tek Chand S/o Late Har Lal (since deceased)
Through his legal heirs
(A) Dheer Singh S/o Late Tek Chand
(B) Jai Singh S/o Late Tek Chand
Both R/o Village & Post Dhakka,
Delhi110009. ..........Defendants
Page 2 of 8 Suit No. 207/2006/78
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ORDER
11.01.2013
1. Vide this order, I shall dispose of application under Section 151 CPC filed by LRs of deceased defendant no. 1 for dismissal of the suit.
2. Factual background of the case is that plaintiff filed the present suit for permanent injunction claiming that he is the owner in possession of the land measuring 1 Bigha 12 Bissas comprising in Khasra no. 16, Vill. Dhaka, Delhi [in short 'suit property'], since 1946 and he had constructed pucca boundary wall of bricks over the suit property. Further it is mentioned that the suit property was commonly owned by the proprietors of the village including father of the plaintiff prior to 1946 and the possession of the plaintiff is adverse, open and hostile to all other proprietors. Further it is mentioned that defendant no.1 filed suit of injunction against plaintiff claiming that he is in possession of the suit property but the said suit was dismissed vide judgment dt. 07.12.1977 and it was held that defendant no. 1 or other proprietors are not in possession of the suit property. Further it is mentioned that on 14.02.1978, defendant tried to dispossess the plaintiff forcibly and therefore they be Page 3 of 8 Suit No. 207/2006/78 4 restrained from dispossessing the plaintiff without due course of law.
2. Written statement was filed by defendants mentioning that plaintiff is not in exclusive possession of the suit property.
3. During trial, present application was filed by defendant no.1 mentioning that the suit filed by defendant no.1 against Delhi Wakf Board (as defendant no.1) and present plaintiff (defendant no. 2) was dismissed vide judgment and decree dt. 07.12.1977 with the findings that neither plaintiff nor defendant no.2 are in possession of the suit property and three appeal preferred against said judgment were dismissed by common judgment dt. 24.08.1982 passed by LD. ADJ. Further it is mentioned that Delhi Wakf Board preferred regular second appeal against judgment passed by Ld. ADJ in Hon'ble High Court. It is also mentioned that earlier this suit was stayed under Section 10 CPC vide order dt. 17.05.1980 observing that matter is also directly and substantially is in issue in the earlier suit pending between the same parties. Further it is mentioned that the judgment and decree dt. 07.12.1977 became final qua the plaintiff and moreover, suit property is lying attached under Section 145 & 146 Cr.PC since 18.11.1982 and therefore plaintiff has no cause of action for filing the Page 4 of 8 Suit No. 207/2006/78 5 present case and it may be dismissed.
4. The plaintiff replied to the present application mentioning that appeal of Delhi Wakf Board is pending in the Hon'ble High Court and moreover the plaintiff is in possession of the suit property as per order dt. 16.08.2002 passed by SDM, Model Town, Delhi, Sh. J.N. Kataria and therefore present application is liable to be dismissed.
5. I have heard arguments at bar and have perused the record.
6. The applicant has claimed that plaintiff has no right to proceed further with the present suit since the finding has come in the suit filed by defendant no.1 against the plaintiff and Delhi Wakf Board that plaintiff was not in possession of the suit property at the relevant time and since the possession of plaintiff over the suit property is the only basis for filing present of the suit for permanent injunction, it is liable to be dismissed. On the other hand, the plaintiff argued that he is in possession of the suit since 16.08.2002, pursuant to orders of the SDM Model Town, Delhi, and moreover the appeal of Delhi Wakf Board in respect of earlier suit decided between the parties is still pending adjudication.
Page 5 of 8 Suit No. 207/2006/78 6
7. First of all, it is observed that judgment dt. 07.12.1977, passed by Sh. G.D. Dhanuka, the then Ld. Sub Judge, 1st class, Delhi, passed in the suit no.255/76 for injunction titled as "Sh. Kishan Sahai Vs. Delhi Wakf Board and Amar Nath" in respect of suit property has become final as High Court of Delhi has also dismissed the RSA filed by Delhi Wakf Board in November 2003 and this fact has been acknowledged by the High Court in order dt. 06.08.2004 while dismissing the contempt application filed by Pratap Singh against Amarnath and SDM Model Town, Delhi. It is evident that in that judgment, issue no.3 was decided to the effect that defendant no.2 (plaintiff herein) is not in possession of the suit property. That suit was filed in 1976, whereas, present suit was filed in 1978.
8. In view of above, there appears no doubt that finding of the former suit decided vide judgment dt. 07.12.1977 would operate res judicate on the present suit. The parties in both the cases are same and there is no legal requirements that the parties to the two litigations must be common. It is undisputed position that the issue of possession over suit property was directly and substantially in issue in the former suit and that was decided on merits. Therefore, this court is barred from trying the present suit which also requires Page 6 of 8 Suit No. 207/2006/78 7 determination of issue qua possession of plaintiff over suit property in 1978, when suit was filed.
9. The plaintiff has also claimed that he is in possession of the suit property on the basis of order dt. 16.08.2002 passed by Ld. SDM. Though, this fact has not been disputed by defendant side but for deciding the issue of the present case this court only requires to see whether plaintiff was in possession of the suit property at the time of filing of present suit, i.e., in 1978. When finding has already become final that plaintiff was not in possession at that time, plaintiff cannot be heard again in regard to same issue. If he has any grievance in regard to disturbance or threat to his possession taken subsequently, he is required to file fresh suit on the basis of new cause of action. No doubt, a person in settled possession cannot be dispossessed without following due coarse of law, but plaintiff cannot ask for relief on the basis of possession taken 24 years after filing of the present suit.
10. In light of discussion made above, it is held that plaintiff was not in possession of suit property at the time of filing of the suit and therefore, question of his dispossession doesn't arise. In such circumstances, the further proceedings in the suit would only be Page 7 of 8 Suit No. 207/2006/78 8 wasteful exercise. Considering this, the suit of plaintiff is ordered to be dismissed. Application stands deposed of accordingly.
11. No order as to costs.
Announced in open Court [VIVEK KUMAR GULIA] on 11th Day of January, 2013. CCJ cum ARC (North District) [This order contains 8 pages.] Tis Hazari Courts, Delhi Page 8 of 8 Suit No. 207/2006/78