Delhi District Court
Netrapal Singh vs South Delhi Municipal Corporation on 11 January, 2024
IN THE COURT OF THEN SENIOR CIVIL JUDGE
-CUM-RENT CONTROLLER,
PRESENTLY CHIEF METROPOLITAN MAGISTRATE,
SOUTH-EAST DISTRICT, SAKET COURTS, NEW DELHI
Presided By: Ms. Deepti Devesh, DJS
Civil Suit No: 26/18
Shri Netrapal Singh
S/o Late Sh. Lala Ram
R/o F-235A, Lal Kuan,
Panchmukhi Mandir,
New Delhi- 110044.
... Plaintiff
Versus
1. South Delhi Municipal Corporation (SDMC)
Through its Commissioner
South Zone, Lajpat Nagar,
New Delhi
(2) The SHO
PS Pul Prahalad Pur
New Delhi-110044.
(3) Sh. Bansi Dhar
S/o Not Known
R/o F-236, Lal Kuan,
Panchmukhi Mandir,
New Delhi-110044.
(4) Delhi Development Authority
Vikas Sadan, INA, New Delhi ....Defendants
SUIT FOR PERMANENT INJUNCTION
DATE OF INSTITUTION : 04.01.2018
DATE OF ARGUMENTS : 22.11.2023
DATE OF DECISION : 11.01.2024
CS NO. 26/2018 NETRAPAL SINGH VS. SDMC & ORS. Page 1 of 9
JUDGMENT
Plaintiff's case:
1. The case of the plaintiff is that the plaintiff is residing in his property bearing no. F-235A, Lal Kuan, Panchmukhi Mandir, New Delhi-110044 and defendant no. 3 is his neighbour. It is alleged that defendant no. 3 has been carrying out illegal and unauthorized construction, encroaching public road in front of his property bearing no. F-240, Panchmukhi Mandir, Lal Kuan, Pul Prahaladpur, New Delhi (hereinafter referred to as "suit property", more clearly shown in red in the site plan annexed with the plaint). It is alleged that encroachment caused by defendant no. 3 has resulted in obstruction of public passage, causing inconvenience to general public as well as plaintiff in using the said public passage. It is further alleged that despite complaints to various authorities, no action was taken against the said alleged unauthorized construction. Hence, the present suit has been filed.
Defendant's case:
2. In the written statement filed by the defendant no.3, it is stated that the plaintiff's wife had earlier filed similar suit, which was dismissed vide judgment dated 10.02.2016. It is further alleged that the plaintiff has no locus to institute the present suit as he is not the owner of his property, and no valid power of attorney has been filed by the plaintiff in his favour, CS NO. 26/2018 NETRAPAL SINGH VS. SDMC & ORS. Page 2 of 9 from the owner of the said property i.e. his wife. It is further alleged that plaintiff himself has carried out illegal construction at his property and therefore, has no right to claim any equitable relief of injunction. Hence, the defendant no.3 has prayed for dismissal of the suit.
3. The remaining defendants have not filed any written statement. However, defendant no.1/MCD has filed status report that the suit property falls in Lal Kuan, over which jurisdiction is exercised by DDA. Vide order dated 02.04.2018, DDA was impleaded as defendant, being necessary party. Status report was filed on 06.06.2018 by DDA, in which it was stated that no on going construction was found at the suit property, but that the property of both plaintiff and defendant no.3 are located in unauthorized colony, over land which belongs to DDA, vide land acquisition process. It was stated that both plaintiff and defendant no. 3 are encroachers on public land belonging to DDA.
Replication
4. The plaintiff filed replication to the written statement of defendant no.3, disputing and denying the allegations made therein, and reiterating the contents of the plaint. However, nothing was stated about the status report filed by DDA on 06.06.2018.
CS NO. 26/2018 NETRAPAL SINGH VS. SDMC & ORS. Page 3 of 9Issues:-
5. On the basis of pleadings of the parties, the following issues were framed vide order dated 24.07.2018:-
1. Whether the suit is liable to be rejected as the plaintiff has not approached the court with clean hands being himself an encroacher on public land? OPD1 and 3
2. Whether the plaintiff has no locus to file the present proceedings since he is not the owner of the property mentioned by him in the plaint? OPD3
3. Whether the present suit is not maintainable in view of final orders already passed in Suit no.
452/2013 titled as Maya Devi V. Nirmala Devi and suit no. 397/2013 titled as Nirmala Devi V. Netrapal, which were decided by court of Sh. Munish Markan, Ld. Sr. Civil Judge-cum-Rent Controller (SE)? OPD3
4. Whether the plaintiff is entitled to decree of permanent injunction restraining defendant no.3 from raising illegal construction upon public road situated in front of F-240, Panchmukhi Mandir, Pul Prahladpur, New Delhi? OPP
5. Relief.
Plaintiff's Evidence:
6. In order to prove his case, the plaintiff had examined himself as PW1. In his examination-in-chief, he mostly reiterated the averments made in the plaint and relied upon the following documents:
CS NO. 26/2018 NETRAPAL SINGH VS. SDMC & ORS. Page 4 of 9(a) Aadhar card Ex.PW1/1 (OSR).
(b) Site plan Ex.PW1/2.
(c) Complaint dated 15.12.2017 Ex. PW1/3 (OSR).
(d) Complaint dated 18.12.2017 Ex. PW1/4 (OSR).
(e) Complaint dated 19.12.2017 Ex. PW1/5 (OSR).
(f) Photographs Ex. PW1/6 (colly).
Thereafter, he was cross-examined and discharged on 25.05.2019 and plaintiff's evidence was also closed.
Defendant's Evidence:
7. Defendant no.3 examined himself as DW-1. In his examination-in-chief, he tendered his evidence by way of affidavit as Ex.
DW1/A and he mostly reiterated the averments made in the written statement. He relied upon the following documents:
a) Certified copy of order dated 10.02.2016 Ex. DW1/1.
b) Order dated 27.02.2015 Mark A. Thereafter, he was cross-examined and discharged on 25.08.2022 and defendant's evidence was closed on 02.05.2023.
Appreciation of Evidence & Finding:-
8. Oral arguments were advanced at length on behalf of all parties except defendant no.3. Opportunity was sought and granted to defendant no.3 to file written arguments, but no written arguments were filed. Hence, this court is constrained to pronounce the present judgment on basis of arguments already advanced and material already available on record. I have heard the arguments and perused the record.CS NO. 26/2018 NETRAPAL SINGH VS. SDMC & ORS. Page 5 of 9
2. Whether the plaintiff has no locus to file the present proceedings since he is not the owner of the property mentioned by him in the plaint?
OPD3
3. Whether the present suit is not maintainable in view of final orders already passed in Suit no. 452/2013 titled as Maya Devi V. Nirmala Devi and suit no. 397/2013 titled as Nirmala Devi V. Netrapal, which were decided by court of Sh. Munish Markan, Ld. Sr. Civil Judge-cum-Rent Controller (SE)? OPD3.
9. Both the above issues are taken up together as they are inter-connected to each other. The onus of proof of both the said issues was upon the defendant no.3. Defendant no.3 has claimed that no valid power of attorney has filed by the plaintiff to establish his locus to file the present suit, despite admitting in his evidence, that his property is owned by plaintiff's wife. The plaint specifically pleads that the suit has been filed against illegal encroachment upon public land by defendant no.3 in front of his property no. F-240. As the plaintiff is admittedly residing in the property owned by his wife, therefore, he must also be using the suit property for his passage. Furthermore, residence of the plaintiff in his wife's property is not disputed or denied by the defendant no.3 also, anywhere in his pleadings or evidence. Thus, mere residence in that property by the plaintiff gives rise to civil right in favour of the plaintiff to be able to use public roads in vicinity of his property, without any obstruction or hindrance. As obstruction and hindrance is pleaded in the plaint, on public road in front of property no. F-240, therefore, plaintiff has cause of action in his favour to institute the present proceedings.
CS NO. 26/2018 NETRAPAL SINGH VS. SDMC & ORS. Page 6 of 910. Furthermore, the defendant no. 3 has relied upon previous judgments in previous litigations between the parties, Ex. DW1/1 and Mark A, to claim that present suit is not maintainable. Perusal of both the said judgments Ex. DW1/1 and Mark A shows that neither of them dealt with alleged encroachment on public land. Both the suits in which Ex. DW1/1 and Mark A were pronounced dealt with alleged illegal construction in private properties of plaintiff and defendant no. 3, and neither of the said private properties related to property no. F-240. Thus, the suit property in the present suit and in suits in which Ex. DW1/1 and Mark A were pronounced, are absolutely different. Hence, it cannot be said that previous decision in previous litigations between the same parties, bars institution of the present suit itself. Accordingly, in view of above discussion, both the above said issues are decided against the defendant no. 3 and in favour of the plaintiff.
1. Whether the suit is liable to be rejected as the plaintiff has not approached the court with clean hands being himself an encroacher on public land? OPD1 and 3
4. Whether the plaintiff is entitled to decree of permanent injunction restraining defendant no.3 from raising illegal construction upon public road situated in front of F-240, Panchmukhi Mandir, Pul Prahladpur, New Delhi? OPP
11. Both the above issues are taken up together as they are inter-connected to each other. The onus of proof of issue no.4 was upon the plaintiff, while the onus of proof of issue no.1 was upon the defendants. The plaintiff has filed the present suit seeking the relief of CS NO. 26/2018 NETRAPAL SINGH VS. SDMC & ORS. Page 7 of 9 permanent injunction against the defendant no.3. It is well established that the relief of injunction is an equitable relief, which can be claimed only by a person who approaches the court with clean hands. The defendant no. 3 has produced judgment Mark A, which shows that earlier, the defendant's suit for permanent injunction against the plaintiff had been decreed and the plaintiff had been restrained from doing construction in his house, property no. F-235A. Thus, in light of such previous decree against the plaintiff, it appears that plaintiff has not approached the court with clean hands and on this ground alone, the present suit is liable to be dismissed.
12. Furthermore, in status report filed by DDA on 06.06.2018 before court, it has been categorically stated that both the plaintiff and defendant no.3 are encroachers on public land, and that the properties of both the parties are located on DDA land, acquired under Land Acquisition proceedings. Encroaching public land also is inimical to claim of equitable relief by the plaintiff. Neither the plaintiff nor defendant no.3 have disputed the said status report filed by DDA. On the basis of status report and other material, interim relief was also declined in the present matter, which order has also never been challenged by either of the parties. During cross-examination of plaintiff, he has volunteered that his property documents comprise of GPA, etc. Hence, no registered sale deed exists. Furthermore, both the plaintiff and defendant no.3 have admitted in their respective cross-examinations that there is no sanctioned plan for either of their properties. In fact, the defendant no.3 has stated that no sanctioned plan exists for the entire CS NO. 26/2018 NETRAPAL SINGH VS. SDMC & ORS. Page 8 of 9 colony where suit property is located. All of the above cumulatively, corroborates the status report that both the plaintiff and defendant no. 3 are encroachers on public land. In view of the above discussion, as parties have admitted that no sanctioned plan exists for their properties, have not disputed the vesting of the land where suit property is located with DDA, have not produced any ownership documents, it is clear that both the parties are rank trespassers and the plaintiff is thus, not entitled to any relief. Accordingly, both the above issues are decided against the plaintiff and in favour of the defendants.
Relief
13. In view of the aforesaid findings, plaintiff has failed to prove his case against the defendants. The suit of the plaintiff is hereby dismissed. No order as to costs.
14. After preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
DEEPTI Digitally signed by DEEPTI DEVESH DEVESH Date: 2024.01.12 10:02:43 +0530 Typed directly on court computer and Announced in the Open Court on 11.01.2024 (Deepti Devesh) Then, Senior Civil Judge-cum-Rent Controller, Presently, Chief Metropolitan Magistrate, South East, Saket Courts, New Delhi CS NO. 26/2018 NETRAPAL SINGH VS. SDMC & ORS. Page 9 of 9