Delhi District Court
Smt. Sumarti Devi vs Union Of India Service Through ... on 27 January, 2010
In the court of Sh. Devender Kumar CCJ/ARC (N/E),
Karkardooma Courts Delhi.
CIVIL SUIT NO. 439/09
IN THE MATTER OF :
SH. GYAS RAM
S/O SH. RAM SAHAI
R/O KHASRA NO. 840/762,
VISHWAS NAGAR, BLOCK NO. 51,
ILLAQA CHANDRAWALI,
SHAHDARA, DELHI
THROUGH LRs
1.SMT. SUMARTI DEVI, WIDOW OF DECEASED APPELLANT SH. GIAS RAM
2. SH. MOHAN LAL, S/O DECEASED APPELLANT SH. GIAS RAM
3. SH. MAHESH KUMAR, S/O DECEASED APPELLANT SH. GIAS RAM ALL R/O KHASRA NO. 840/762, VISHWAS NAGAR, BLOCK NO. 51, ILAQUA CHANDRAWALI, SHAHDARA, DELHI
4. SMT. ASHRAFI DEVI D/O LATE SH. GIAS RAM W/O SH. BRIJ MOHAN R/O Y-1126, MANGOLPURI, DELHI
5. SMT. SUSHILA, D/O LATE SH. GIAS RAM W/O SH. SURESH KUMAR R/O Y-1126, MANGOLPURI, DELHI
6. SMT. RAJ KUMARI D/O LATE SH. GIAS RAM W/O SH. MAHINDER KUMAR, -1- R/O 207, AWAS VIKAS SAMITI COLONY, NEAR HOTEL HANGA KINARA, VIRBHADRA ROAD, RISHIKESH, UP.
7. SMT. LAKSHMI DEVI D/O LATE SH. GIAS RAM W/O SH. PRITAM SINGH R/O VILLAGE AND POST OFFICE MANGLA CHANDERBHAN (FARAH), DISTRICT MATHURA (U.P.) PLAINTIFFS Versus
1. UNION OF INDIA SERVICE THROUGH SECRETARY MINISTRY OF REHABILITATION AND URBAN DEVELOPMENT, NEW DELHI
2. ASSTT. SETTLEMENT OFFICER EVACUEE PROPERTY CELL, L&D DEPARTMENT, GOVT. OF DELHI, VIKAS BHAWAN, NEW DELHI
3. DIRECTOR NATIONAL COMMISSION FOR SC/ST, 5TH FLOOR, LOK NAYAK BHAWAN, KHAN MARKET, NEW DELHI
4. SH. JANAK RAJ SHARMA (BHARAT MEDICAL STORE)
5. SH. ASHOK SHARMA (ASHOK ELECTRICAL SHOP)
6. SH. ASHOK JAIN
7. SH. ISHWAR
8. SH. JOGENDER (SINCE DECEASED) THROUGH HIS LR (HIS MOTHER), NAMELY SMT. RAM PIARI, W/O LATE SH. KHACHERU MAL, R/O H. NO. 618/3-A/1-A, 18 QUARTER ROAD, VISHWAS NAGAR, SHAHDARA, DELHI
9. SH. DINESH KUMAR
10.SH. JOGENDER
11.MR. AGGARWAL (DESU INSPECTOR BEHIND DK OIL)
12.SH. MAHINDER (PROP. JAGDAMBA ELECTRICAL) -2-
13.SH. FATEH SINGH
14.SH. TITU SHARMA
15.PROP. RAINBOW STICKERS ALL DEFENDANTS NO. 4, 5,6,7,9, TO 15 R/O18, QUARTER ROAD, VISHWAS NAGAR, SHAHDARA, DELHI 32 DEFENDANTS Date of Institution of the Suit : 21/04/95 Arguments Heard : 27/01/10 Date of Judgment : 27/01/10 SUIT FOR DECLARATION: MANDATORY AND PERMANENT INJUNCTION Judgment
1. Vide this judgment, I shall dispose off a suit for declaration, mandatory and permanent injunction filed by the plaintiff against the defendants. The brief facts of the case are as under :
2. The plaintiff has claimed to be the permanent resident of 618/3A, Ravidaas Gali, Vishwas Nagar, Shahdara, Delhi 32 isnce 1947 and also occupied a piece of land measuring 10 biswas bearing khasra no. 840/762, situated in the nearby locality at Vishwas Nagar, Shahdara, Delhi 32 and is in continuous possession without any interruption over the land which originally belongs to the Muslim family which migrated to Pakistan in the year 1947. It is further alleged that the above said land was under the possession of the plaintiff and was being used for agricultural purpose and tethering of cows and buffaloes and for plantation. It is further alleged that the name of the plaintiff has been recorded in Khasra Girdawari maintained -3- by illaqa patwari. It is further alleged that the plaintiff was in continuous possession of the land for agricultural purpose and started construction of his own house as soon as the need of the plaintiff increased, but it was not allowed by the concerned police and construction was demolished and a Kalandra Under Section 107/151 Cr.PC was lodged and decided by concerned SDM in the year 1975. It is further alleged that on 12/04/78, the defendant no. 4 to 15 started harassing the plaintiff just to grab the suit property and the matter was reported to Chief Settlement Commissioner as the matter was pursuing there and defendant no. 10 admitted his legal possession there and defendant no. 4 to 15 have also raised the construction over the land, but the defendant no. 1 and 2 in collusion with other defendants closed the case of the plaintiff. It is further alleged that the defendant no. 4 to 15 are in illegal possession of the suit property and defendant no. 1 to 3 are harassing the plaintiff. It is further alleged that the defendants have not vacated the suit property despite many demands and without having any title. By the way of present suit, plaintiff has prayed that the plaintiff be declared the owner of the land measuring 10 biswas in khasra no. 840/762, Village Vishwas Nagar, Shahdara, Delhi and defendant no. 4 to 15 be restrained from raising any construction and further be directed to remove illegal construction from the suit property.
3. The defendants have filed their WS. Defendant no. 1 and 2 have contested this suit on the ground that the suit is not maintainable for the want of legal notice under section 80 CPC and the same is liable to be dismissed. It is further alleged that this court has no jurisdiction to try and entertain this -4- suit as the jurisdiction of this court is barred U/s 36 of D.P. (C&R) Act, 1954 and under section 46 of Administration of Evacuee Property Act, 1950. It is further alleged that the plaintiff has no locus standi to file this case and he is neither the owner nor the allottee of the land and even not in physical possession of the suit property. It is further alleged that the plaintiff is not in continuous possession of the suit property nor land was being used for agricultural and other purpose. It is further alleged that the property vested in the Custodian Department and as per the record maintained by the defendants, the department vide letter no. 4 (45)/76-SSII dated 4th Sep. 1976, the land measuring 176 Acres situated at Village (Trans Jamuna) Delhi along with the Village Chandrawal (Viswas Nagar) Delhi has been transferred to DDA as per the provisions of law and plaintiff is not entitled for any relief. The defendants have prayed that the suit be dismissed.
4. Defendant no. 4 and 11 have filed their joint WS thereby alleging that this court has no pecuniary jurisdiction to entertain this suit as the property is valued Rs. 5 lacs and no appropriate court fees has been affixed. It is further alleged that the suit is barred U/o 2 Rule 2 CPC and under section 41 (h) of Specific Relief Act. It is further alleged that the suit is barred by limitation as suit was to be filed within three years, but the same has been filed after a long time. It is further alleged that no cause of action is in favor of the plaintiff and the land is vested in Union of India and the construction has been regularized in favor of the occupants. It is further alleged that the defendants are in adverse possession of the suit property. Defendants have denied that the suit property is agricultural land and have -5- alleged that the plaintiff claims to be the Kastkar, but the Kastkar seizes to operate as the agricultural nature of the suit property has been changed in to the residential and even House Tax is being levied on the properties and the MCD has assessed the suit property. It is further alleged that the plaintiff wants to take forcible possession of the built up properties of the defendants and the matter was also reported to the police and the police has taken the action against the plaintiff. It is further alleged that the defendants are in legal possession of the property and even Custodian has nothing to do with the suit property. It is further alleged that the defendants are the owner and in possession of the suit property and have raised construction in the capacity of owners and the plaintiff has nothing to do with the suit property and he is just a land graber and suit of the plaintiff is liable to be dismissed.
5. Defendant no. 5 and 14 have also taken the same plea as taken by the defendants no. 6,9,8,10,12,7,13 and have prayed that the suit is liable to be dismissed.
6. The plaintiff has filed the replication to the WS of the defendants and has reaffirmed his pleadings and has prayed that the suit is liable to be decreed.
7. Defendant no. 4 to 15 have already proceeded Ex-parte vide order dated 26/07/04 and defence of the defendant no. 3 has been struck off by the same order. Application of the defendants against setting aside of Ex-parte order has also been dismissed vide order dated 15/04/05.
8. During the pendency of the suit, plaintiff expired and an application of the LRs U/o 22 Rule 3 CPC was allowed and seven LRs were -6- substituted to the plaintiff. After the expiry of plaintiff, defendant no. 1 also expired and his LRs were also substituted.
9.. A per the pleadings of both parties, following issues were framed vide order dated 26/07/04.
ISSUES:
1. Whether the suit is not maintainable U/o 2 Rule 2 CPC ? OPD
2. Whether the suit is barred by the provisions of section 41 (h) of Specific Relief Act ? OPD
3. Whether the suit is properly valued for the purpose of jurisdiction ? OPD
4. Whether the suit is barred U/s 36 of DP (C&R) Act 1964 ? OPD
5. Whether the suit is barred by the provisions of section 46 of Administration Evacuee Property Act, 1960 ? OPD
6. Whether the suit is liable to be dismissed for want of statutory legal notice under section 80, CPC ? OPD
7. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for ? OPP
8. Relief
10. To prove the case, plaintiff has examined PW1 Sh. Mohan Lal, PW2 Sh. Anil Kumar (Halka Patwari), PW3 Sh. Malkhan Singh (LDC), PW4 Sh. Kailash Kumar (Kanoongo) and PW5 Sh. N. K. Kaushik and defendant has examined DW1 Sh. Ashok Kumar Jain and DW2 Sh. A.K. Sharma.
11. I have heard the arguments of both parties and gone through the -7- record. My issue wise findings are as under :
ISSUE No. 1The onus to prove this issue was fixed upon the defendants. To discharge the onus, the defendants have neither cross examined the PWs nor have lead their evidence to prove that in what manner the present suit is barred U/o 2 Rule 2 CPC. As per order 2 Rule 2 CPC, all the claims should be taken in a single suit, if all the claims are arising out of same cause of action and subsequent suit for same relief is barred. In the present case, the plaintiff has filed the suit for declaration, permanent and mandatory injunction and defendants have taken this plea in their WS, but neither in WS nor in PE/DE, it has been suggested in what manner suit is barred U/o 2 Rule 2 CPC. If the plaintiff has not sought any relief in this case which is arising out of the same cause of action, then further suit shall be barred but not the present one. As such, the defendants have not explained whether any earlier suit was filed by the plaintiff on the basis of same cause of action or not. In the absence of the same, the defendants have failed to discharge the onus to prove this issue and this issue is decided against them.12. ISSUE No. 2
The onus to prove this issue was fixed upon the defendants. To discharge the onus, the defendants have lead arguments. It is submitted by the Counsel for defendants that the plaintiff has equal efficacious remedy to seek the relief before higher authorities of Ministry of Rehabilitation or Custodian by the way of appeal or other usual mode of proceedings as the property originally belongs to the person who has been migrated to the -8- Pakistan and the property is vested in Custodian Department and the same has not been allotted to the plaintiffs, due to they have equal efficacious remedy to move before the concerned authorities.
On the other hand, Counsel for plaintiff has submitted that the plaintiff has no other equal efficacious remedy to seek the relief of declaration, permanent and mandatory injunction before any other court of law due to this suit is not barred U/s 41 (h) of Specific Relief Act.
I have heard the arguments and perused the record. As per section 41 (h) of Specific Relief Act, if the relief sought by the plaintiff may be obtained by any other equal mode of proceedings, then the suit for injunction shall be barred U/s 41 (h) of Specific Relief Act. In the present case, the plaintiff is seeking the relief of declaration of ownership U/s 34 of Specific Relief Act and Permanent and Mandatory Injunction against the illegal construction and the removal of illegal construction. I have gone through the Displaced Persons (Compensation & Rehabilitation) Act, 1954 which reveals that the order passed by the Managing Officer may be challenged before the Chief Settlement Commission by the way of appeal U/s 23 of The Displaced Persons (Compensation & Rehabilitation) Act, 1954. Further the power of revision is also available to Chief Settlement Commissioner. The jurisdiction of Civil Court is barred U/s 36 of the Act and the orders of the authorities under this shall be final U/s 27 of the Act. Further the evacuee properties are to be governed by the Administration of Evacuee Property Act, 1950 and any allotment is to be done by Custodian General or his behalf by any of his subordinate. The order of any of -9- Subordinate Officer of the Custodian general is appealable U/s 24 of the Act and even power of revision is also available to the Custodian general. The order made under this Act are final U/s 28 of the Act. The Central Government also exercise power of the Custodian General as per Section 54- 55 of the Act and the jurisdiction of the Civil Court is barred U/s 46 of the Act.
As such, the plaintiff has efficacious remedy against the claim of the plaintiff rejected by the Managing Officer vide Ex. P7 by the way of appeal to Chief Settlement Commissioner or Custodian General. The defendants have discharged the onus to prove this issue and the issue is decided in favor of them.
13. ISSUE NO. 3The onus to prove this issue was fixed upon the defendant, but the nature of the issue shows that the onus should be on the plaintiff and I am taking up the issue as per the onus of the plaintiff. The plaintiff is seeking the relief of declaration, permanent and mandatory injunctions. In para 9 of the plaint of the plaintiff, valuation for the relief of declaration has been made Rs. 200/- and permanent and mandatory injunction for Rs.130/-. The relief of declaration is fixed for Rs. 200/-. If the consequential relief has been prayed, then the valuation should be as per the market value of the relief. In the present case, the plaintiff has not sought the consequential relief, whereas he was not in possession of the suit property at the time of filing this suit. As per section 7 (iv) (e) of the Court Fees Act, 1870 if any consequential relief has been prayed then it shall govern by it and if no consequential relief has -10- been claimed, then Schedule II Act 17 (iii) shall govern this suit. As such, a correct valuation has been done for the purpose of court fees and jurisdiction. Plaintiff has discharged the onus to prove this issue.
14. ISSUE NO. 4The onus to prove this issue was fixed upon the defendants. Counsel for defendant has submitted that the jurisdiction of this court is barred U/s 36 of Displaced Persons (Compensation & Rehabilitation) Act, 1954, (this issue is bearing a clerical mistake as the Act is enacted in the year 1954, but it has been mentioned 1964. since the year of enactment of Act is in question, then it shall be considered that the Act was enacted as per the year of the Act.) It is further submitted that the suit property belongs to one Sh. Abdul Sattar who migrated to Pakistan and that Act was enacted by Parliament just to protect the right of displaced persons in pursuance of the partition of the country. It is further submitted that the Chief Settlement Commissioner was appointed for payment of compensation and rehabilitation of those persons and the managing officer were appointed to look after the properties of migrant persons. As per section 2 (b) of the Act, displaced persons include a person who migrated to Pakistan or to India on account of the setting up of the dominions of the India and Pakistan. Further as per section 2 (c) of the Act, evacuee property means any property which has been declared or is deemed to have been declared as evacuee property under the Administration of Evacuee Property Act, 1950. Any claim with regard to that property was to be made before the Chief Settlement Commissioner appointed under the Act and he was supposed to decide the -11- compensation of the properties. In the present case, it is not the disputed fact that the property is not vested in custodian. It has been mentioned by the defendant no. 1 and 2 that property has been transferred to DDA as per the provisions of the law vide letter no. 4 (45)/76-SSII dated 4th Sep. 1976, the land measuring 176 Acres situated at Village (Trans Jamuna) Delhi along with the Chandrawal (Viswas Nagar) Delhi. As of now, the property is vested in DDA and DDA is the owner of the suit property. It has already admitted by plaintiff in the evidence that the property belongs to one Sh. Abdul Sattar who left the property in the year 1947 when he migrated to Pakistan and after it the property was ought to be transferred to Compensation Pool as per section 14 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954, if the property has been acquired under section 12 of the Act. The order of rejection of claim is challengeable by the way of appeal U/s 23 of the D. P. (C&R) Act, 1954 and the order is final U/s 27 of the same Act and jurisdiction of the civil court is barred U/s 36 of the Act. The plaintiff has not challenged the vice in the order of the Managing Officers, then the remedy to the plaintiff is only appeal. As such, the jurisdiction is barred under section 36 of Displaced Persons (Compensation & Rehabilitation) Act, 1954 and the defendants have discharged the onus to prove this issue.
15. ISSUE NO. 5The onus to prove this issue was fixed upon the defendant. (Again in the issue, the year of the Act has been mentioned 1960 instead 1950 and the same be read as 1950) Counsel for defendants has submitted that the -12- jurisdiction of this court is barred under section 46 of Administration of Evacuee Property Act, 1950 and this court has no jurisdiction to entertain this suit. On the other hand, Counsel for plaintiff has opposed the submissions of the Counsel for defendant and has submitted that this court has jurisdiction to entertain this case.
I have heard the arguments of both parties and gone through the record. As per section 2 (b) of the Administration of Evacuee Property Act, 1950, any property left in a state for any place outside the territories now forming part of India left on account of civil disturbances or fear of such disturbances left on or after 1947, on account of setting up the dominion of India and Pakistan, is covered under the definition of Evacuee Property. In the present case, the property is an evacuee property and a Central Government has appointed a custodian to look after these properties and it has not been disputed by any of the party. Since the property has been notified as evacuee property, then it is to be governed by the Administration of Evacuee Property Act, 1950. As per section 46 of the Act, the jurisdiction of the civil court is barred to entertain or adjudicate upon any question regarding evacuee property. In any matter where the Custodian General is empowered by or under this Act to decide. In the present case, the custodian may hold an inquiry, whether the property is evacuee property under the Act or not, and even transfer of property may be considered by the custodian. The claim of the plaintiff has been rejected by the Managing Officer in this case and the plaintiff may approach to the Custodian General by the way of appeal and thereafter revision, but in the absence of the same, the order shall -13- obtain finality by the virtue of section 27 of the Act. Besides it, the property has been transferred to DDA by the Custodian as a matter of policy and without challenging the policy of the Government, the plaintiff can not challenge the order of the Managing Officer. The jurisdiction of this court is barred under section 46 of Administration of Evacuee Property Act, 1950. The defendants have discharged the onus to prove this issue and the same is decided in favor of defendants and against the plaintiff.
16. ISSUE NO. 6The onus to prove this issue was fixed upon the defendants and to discharge the onus, the defendants have cross examined the PWs on this aspect and have lead the arguments. It is submitted by Counsel for defendant that the defendant no. 1 and 2 are the Government Offices which are being represented by Union of India as well as Department of Custodian set up by the defendant no. 1. As per section 80 of CPC, no suit can be filed against the Government unless two months notice is given in advance. In the present case, PW1 has also admitted in his cross examination that no said notice was given to defendant no. 1 and 2 under section 80 before filing of this suit, accordingly suit without compliance of statutory requirement is not maintainable and liable to be dismissed. As such, the defendants no. 1 and 2 have discharged the onus to prove this issue and this issue is decided in favor of defendants and against the plaintiff.
17. ISSUE NO. 7The onus to prove this issue was fixed upon the plaintiff. The perusal of the issue shows that due to some clerical mistake of Ld. -14- Predecessor, the issue regarding declaration and mandatory injunction could not be framed separately, whereas the application of the plaintiff for substitution of LR was allowed only for the reason that the present suit is suit for declaration and cause of action is surviving. In this issue, the relief of declaration and mandatory injunction are also being considered as these reliefs have not been left by the plaintiff during trial. The onus to prove this issue was fixed upon the plaintiff. To prove the issue, the plaintiff has examined five PWs including the son of plaintiff. PW1 Sh. Mohan Lal who is son of the deceased plaintiff has deposed in his cross examination that the dispute first arose in the year 1978 and at that time he was studying in 10th class. It is further deposed that he was not involved in the dispute in respect of the suit property in the year 1978, but he was accompanied with his father prior to his death. It is further deposed that his father was not residing in the suit property when the case was filed in the court in the year 1995. It is further deposed that he is residing at Azad Niwas, Village Morna, Noida with his mother and no other family member is residing in the suit property. It is further deposed that he has no knowledge whether his father has sold out any portion of the suit property during his life time. It is further deposed that the suit property was being used for agricultural purpose and there was no construction of any type. It is further deposed that they have never resided in the suit property and were residing separately. It is further deposed that the suit property originally belongs to one Sh. Abdul Sattar who migrated to Pakistan in the year 1947 and they have taken the un-authorized possession of the suit property after his migration. It is further deposed that his father -15- had applied in the year 1978 for taking the suit property from the custodian, but custodian did not allow. It is further deposed that they have not paid any lagan/revenue to the Government regarding cultivation of the land, but wrote letter to SC/ST Commissioner and the Rehabilitation Minister, but nothing could be done. It is further deposed that the refusal letter was received in the year 1980 and the suit property was not allotted to them. It is further deposed that they did not take any legal action during the year 1980 till 1985 and in the year 1985, this case has been filed. It is further admitted that they have not taken any action against defendant no. 1 and 2 prior to file this suit. It is further deposed that the suit property has not been allotted to any other person by defendant no. 1 and 2. It is further deposed that the land was in their possession in the year 1975 and the original owner of the property namely Sh. Abdul Sattar neither had given anything in writing to them regarding the suit property nor they had cordial relations with him. It is further deposed that the suit property was not purchased by his father and he took the possession without any authorization. It is further deposed that they were in the possession of the suit property up to 1978 and the defendant no. 4 to 15 took the forcible possession. It is further deposed that the police has registered an FIR, but no action was taken and all the defendants are in possession of the suit property since 1978.
19. PW2 has proved that the original owner of the suit property was Sh. Abdul Sattar, but Sh. Gyas Ram was found in possession at the time of Girdawari up to the year 2005.
20. DW1 Sh. Ashok Kumar Jain has deposed that he purchased the -16- suit property from Smt. Prem Wati, but he had not seen any sale deed of any property including suit property in the year 1978 - 1985. It is further deposed that even he did not consult with any property dealer before purchasing the same nor verified from the Govt. Department. It is further deposed that he cannot tell the name of any person who knows Sh. Gias Ram sold out the land to any person who was under his possession. It is further deposed that he was not aware whether the land was found in the revenue record and in the record of the defendant no. 1 and 2 and he was found in occupation of agricultural land bearing 10 biswa land arisen out of Khasra no. 840/766/2/2. It is further deposed that he was not aware whether Gias Ram was using the land for agricultural purpose since 1947. DW2 has not proved his written statement as his written statement was not found signed by him. Even the counsel did not explain the contents of WS before filing the same. It is admitted that he purchased the suit property from the Gias Ram for the consideration of Rs. 40,000/-, but no sale deed was executed and it was on the basis of GPA. It is further deposed that Sh. Gias Ram has handed over the possession of the suit property at the time of selling out the same in the year 1985. It is further deposed that he did not make an inquiry form MCD or custodian regarding the khasra no. before purchasing the same and has deposed that plaintiff was owner and in possession of the suit property. It is further deposed that he did not ask for any document before purchasing the same and even did not make any complaint against the plaintiff.
21. I have heard the arguments and perused the record. I have already given my findings on issue no. 2,4 and 5 that the suit of the plaintiff is not -17- maintainable on legal aspect. I am also considering the factual aspect of the case of the plaintiff.
Perusal of the evidence of the parties make it clear that the plaintiff was not in possession of the suit property from 1978 as deposed by the son of the plaintiff who has been examined as PW1. The document Ex. P1 is not supporting the evidence of the PW1 as deceased Gias Ram was not in the Kabzedari of the suit property in the year 2005. If the PW1 is deposing that his father was not in possession since 1978 and in the year 1980, the claim of his father was rejected by defendant no. 1 and 2, then the record maintained by the concerned department was not up to date. As per the letter Ex. P7, it is clear that as per the policy, it is the un-utilized land and was to be transferred to the DDA and as per the submissions of the counsel for the defendant, the land has already been transferred to DDA in the year 1976 itself vide letter no. 4 (45)/76-SSII dated 4th Sep. 1976, the land measuring 176 Acres situated at Village (Trans Jamuna) Delhi along with the Chandrawal (Viswas Nagar) Delhi. If the land was already transferred, then the defendant no. 1 and 2 have transferred this land and without challenging that transfer, the suit of the plaintiff is not maintainable.
22. Besides it, the suit of the plaintiff is also not maintainable on legal aspect. The plaintiff is seeking the relief of the declaration under section 34 of the Specific Relief Act regarding the ownership, but he is not in possession and no consequential relief has been sought by the plaintiff, whereas he was in position to claim the same. In the absence of any consequential relief despite availability, the relief of declaration cannot be -18- granted to the plaintiff. The suit of the plaintiff is itself not maintainable under section 34 of Specific Relief Act.
So far the injunction is concerned, it is the settled preposition of law that a person who is in un-authorized possession is not entitled for any relief of injunction. In the present case, the plaintiff as well as defendants no. 4 to 15 are in un-authorized possession of the suit property. PW1 has specifically admitted that his father came in to the un-authorized possession of the suit property in the year 1947 and present case is not case of ownership by adverse possession. If the plaintiff's father was in un- authorized possession up to 1978 and thereafter he is not in possession and even they have not remained in the suit property ever, the defendants have also allegedly purchased the suit property from the deceased plaintiff without making any inquiry from the concerned authorities, then they also cannot bring the best title than the deceased plaintiff was himself having. If the deceased plaintiff was not having any title in the suit property, then he cannot transfer the better title than himself. As such, the plaintiff was neither owner of the suit property nor having any title and the subsequent purchaser also cannot carry better title and their possession over the Government land which has been transferred to the DDA in the year 1976, is also illegal. The plaintiff is seeking the injunction of permanent and mandatory injunctions against the un-authorized construction over the suit property without seeking the relief of possession and without it, suit of the plaintiff is also not maintainable with regard to injunction. As such, the person who is in illegal occupation cannot ask to stop the other persons from -19- doing un-authorized activities. The document Ex. P1 is also not proving the Kabzedari of the plaintiff over the suit property after the admission of the plaintiffs and PW1 and plaintiff only may prove the same documentary record, but no factual situation of the suit property. As such, the suit of the plaintiff is not maintainable on legal aspect as well as factual.
The suit of the plaintiff is hereby dismissed as plaintiff has failed to discharge the onus.
23. RELIEF Plaintiff has failed to prove that he is entitled for any relief, accordingly suit of the plaintiff is hereby dismissed. No such order of cost. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open court (Devender Kumar)
27/01/10 CCJ/ARC/MM
-20-
CS No. : 439/09
27/01/10
Pr. : Counsels for both parties
Final arguments heard. Vide my separate judgment, suit of the plaintiffs has been disposed off. No such order of cost. Decree sheet be prepared accordingly. File be consigned to record room.
(Devender Kumar) CCJ/ARC/MM 27/01/10 -21-