Delhi District Court
Civil Suit No. 1082/14/06 vs Banwari Lal on 15 January, 2016
1
IN THE COURT OF SH. HARUN PRATAP,
CIVIL JUDGE04 (CENTRAL), TIS HAZARI COURTS, DELHI
Civil Suit No. 1082/14/06
Ganga Ram
...................... Plaintiff
Vs.
Banwari Lal
...................Defendant
Date: 15.01.2016
ORDER
1. Briefly stated, the facts of the case are that all the parties to the suit are resident of Village Palam with the defendants being real brothers of the plaintiff no.1 and 2 and uncles of the plaintiff no.3 to 8. It has been averred that the land comprising in Khasra no.33/3/1, measuring 1 bigha and 16 biswas, situated within the revenue estate of the Village Palam, New Delhi (herein after referred to as the "suit property"), was initially recorded in the name of Gaon Sabha of Village Palam. However, the father of the plaintiff no.1 and 2 and the defendants namely Sh. Ram Chander, was allegedly in the adverse possession thereof for more than 50 years and the suit property was CS No.1082/14/06 Page 1 of9 2 being used as Gher and Gitwar. A residential house was also allegedly raised over a portion of the suit property and the suit property has been later on inherited jointly by all the parties after the death of Sh. Ram Chander in the year 1978.
2. It has been further averred that the defendant no.1 being the eldest son of Late Sh. Ram Chander became the head of the family after the father's death. Allegedly, proceedings u/s 86A of the Delhi Land Reforms Act in respect of the suit property were initiated by the Gaon Sabha in the year 1982 and the defendant no.1 being the head of the family contested those proceedings. The said proceedings were nevertheless dismissed by the Ld. Revenue Assistant vide order dt. 14.03.1985 being barred by Limitation and even the appeals were dismissed vide order dt. 01.07.1985 and 29.04.1986 by the Ld. Additional Collector and Ld. Financial Commissioner respectively. It has been alleged that plaintiff no.3 to 6 are in actual physical possession of the house built up over the suit property as aforesaid as the same was given to their father on account of the fact that no plot was given to him in the adjacent khasra no.33/3/2, wherein all the other legal heirs of Sh. Ram Chander have built up their respective CS No.1082/14/06 Page 2 of9 3 houses. However, it has been further averred that the plaintiffs came to know after inquiries from the revenue department that the defendant no.1 had got an Exparte declaration of his Bhoomidhari rights in respect of the suit property on 01.09.1987, after the dismissal of the proceedings u/s 86A of the DLR Act on 14.03.1985. It has been alleged that the defendant no.1 in his petition for declaration of bhoomidhari rights as aforesaid had claimed that he was in possession of the suit property after the death of his father Sh. Ram Chander and he misused his position as head of the family for obtaining an exparte order behind the back of the plaintiffs.
3. It has been claimed that the plaintiff's are the owners of the respective shares in respect of the suit property but the defendants have started proclaiming themselves to be the exclusive owner of the entire suit property and have denied any right, title or interest of the plaintiffs therein. It has been alleged by the plaintiffs that the defendants threatened them with forcible dispossession from the suit property and also threatened to sell and transfer the suit property to the third person. Hence, the present suit for permanent injunction.
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4. Herein the present suit, it is an admitted fact on record that the defendant no.1 is the recorded bhoomidhar in respect of the suit property after seeking declaration in this regard on 01.09.1987. Though the plaintiffs have alleged the said declaration obtained by defendant no.1 to be illegal, but, it is pertinent to note that the plaintiffs have neither challanged the same before the Revenue Authorities till date nor any relief of declaration in this regard has been sought by the plaintiffs in the present suit. Moreover, it is also an apparent fact on record that the proceedings u/s 86A of the DLR Act,1954 were also filed by Gaon Sabha against the defendant no.1 only, for taking back the possession of the suit property after ejectment and not against any of the plaintiffs. Therefore, it is evident on record that it is the defendant no.1 only, who is in the recorded possession of the suit property.
5. Furthermore, the plaintiffs have contended that all the parties to the suit are in possession of their respective portions in the suit property as per a family settlement arrived between them in this regard but neither such partition has been claimed by the parties from the Revenue Authorities nor the plaintiffs have sought any CS No.1082/14/06 Page 4 of9 5 declaration to this effect in the present suit.
6. Moreover, it is an admitted fact on record by the plaintiffs that the defendant have denied their right, title or any interest in the suit property and have asserted exclusive title over the same. Therefore, it is evident that the title of the plaintiffs qua the suit property is under a serious doubt and the plaintiffs have merely filed the present suit for simplicitor permanent injunction.
7. In such circumstances, the position of the law has been laid down clearly by the Hon'ble Supreme Court in case titled as Anathula Sudhakar Vs P. Buchi Reddy (Dead) By Lrs & Ors on 25 March, 2008 (Appeal (civil) 6191 of 2001). wherein the Hon'ble Apex Court held that "The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession CS No.1082/14/06 Page 5 of9 6 against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 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. We may however clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy CS No.1082/14/06 Page 6 of9 7 to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear the title supported by documents, if a trespasser without any claim to title or an interloper... To summarize, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
a. Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
b. As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, 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.
c. But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the Court will not CS No.1082/14/06 Page 7 of9 8 investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the Court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
d. Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if matter involved is simple and straight forward, the Court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will enquire into title and cases where it will refer to plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.. ".
8. In view of the aforesaid observations made by the Hon'ble Apex Court and in the background of the facts and circumstances of the present suit, the Court is left with no doubt that the plaintiff ought to have filed the suit for declaration alongwith consequential relief of partition and possession/injunction and the suit of the plaintiff for simplicitor permanent injunction is not CS No.1082/14/06 Page 8 of9 9 maintainable.
9. Therefore, in view of the aforesaid discussion, the Court has no hesitation in hereby arriving at the finding that the suit of the plaintiffs for simplicitor permanent injunction is not maintainable and the plaint is accordingly rejected U/O 7 Rule 11 CPC.
10. The preliminary issue is thus decided against the plaintiffs and in favour of the defendants.
File be consigned to Record Room after due compliance.
Announced & Signed in open
Court on 15.01.2016 (Harun Pratap)
Civil Judge04, Central,THC/Delhi
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