Delhi District Court
Mehtab Alam vs B.S.E.S on 29 October, 2014
IN THE COURT OF MS. POOJA TALWAR: ACJ/CCJ/ARC(SE), SAKET
COURT, NEW DELHI
CS No. 01/2013
Unique case ID No. 02406C0058502013
Mehtab Alam
S/o Late Wahajul Haque
R/o 169, 1st Floor, Gaddaria Wali Gali,
Basti Hazrat Nizamuddin, New Delhi. ........... Plaintiff
Versus
1. B.S.E.S.
Rajdhani Power Ltd.
BSES Bhavan, Nehru Place, New Delhi.
2. Moinuddin Ahmed
S/o Late Sarfuddin Ahmed
M/s Dastar KhanEKarim Hotels Pvt Ltd.
68/2, Jha House, Hazrat Nizamuddin (West),
New Delhi.
Also at:
House No. 16, Gali Kababian,
Matia Mahal, Jama Masjid,
Delhi. .........Defendants
Suit instituted on :01.03.2013
Arguments heard on : 20.10.2014
Judgment pronounced on : 29.10.2014
CS No. 01/2013 Mehtab Alam Vs. BSES & Anr. Page 1/9
JUDGMENT
1. The plaintiff has instituted the present suit against the defendants seeking directions to defendant no. 2 not to interfere and raise objections and create hurdles in getting a new electricity connection in the premises bearing No. 169, 1st Floor, Gaddaria Wali Gali, Basti Hazarat Nizamuddin, New Delhi. Defendant no. 2, its employees, servants, agents, attorneys, representative etc be restrained from raising objections and creating hurdles in the installation of new electricity meter in the premises for the operation of light for the smooth living in the premises. Further seeking directions to defendant no. 1, its employees, agents, attorneys, legal representatives for installing a new electricity connection/meter in the abovesaid premises of the plaintiff as well as cost of the suit.
2. Brief narration of facts is that the plaintiff is residing in the aforesaid premises for the last several years. He has a driving license, PAN card etc, showing him to be a resident of the aforesaid premises. The plaintiff occupied the premises in question through various other friends who are stated to be been in continuous possession for the last several years. It is averred that on account of continuous possession for the last several years, the occupants have become owners by virtue of being in adverse and exclusive possession. It is stated that they gradually constructed the building for their own use and occupation. CS No. 01/2013 Mehtab Alam Vs. BSES & Anr. Page 2/9 However, the defendant no. 2 illegally and malafidely in order to grab the property in question enticed the employees of the restaurant by representing that if they obtained an electricity connection in the premises then the management of the restaurant would pay the electricity bills. The workers/employees being mostly illiterate could not sense the illmotive of the defendant no. 2 and permitted him to get a electricity meter installed in his name. The defendant no. 2 subsequently stopped paying the electricity bills. Thereafter, the plaintiff and other occupants started paying electricity bills. It is averred that defendant no. 2 illegally got the connection converted from a domestic to a commercial one. Thereafter, the defendant no. 2 in connivance with the management of the restaurant got the electricity supply disconnected.
It is averred that the plaintiff thereafter applied for a new electricity connection in his name. He submitted the complete form for a new electricity connection along with a letter from the area MLA. However, BSES declined to install a new meter. Hence, the present suit.
3. The defendant no. 1 BSES filed its W/S. It is averred that there is nothing on record to show as to how and when the plaintiff or his predecessor in interest came in possession of the property. It is averred that the mother of the defendant no. 2 who is the owner of the premises has not been joined. It is submitted that the plaintiff has no ownership documents. It is further stated that the electricity connection was snapped due to nonpayment of the dues. It is further averred that no electricity meter was got installed on the plaintiff's application as an CS No. 01/2013 Mehtab Alam Vs. BSES & Anr. Page 3/9 objection was received from one Ms. Saira Begum claiming herself to be the owner of the property along with ownership documents.
The defendant no. 2 Moinuddin submits that his father had purchased the property in joint name with Late Wasimuddin Ahmed. After the demise of his father in 2009, his LRs including the defendant no. 2 became the owners. It is averred that three employees were granted permission to temporarily use the property for six months as they had shifted to Delhi for employment and they had no other shelter anywhere. In April 2012, the occupants were asked to vacate, however, they refused. It is averred that plaintiff is an intruder in the property. It is further averred that the plaintiff was never provided any facility to reside in the premises. It is submitted that the plaintiff was in fact a resident of T76, Sarai Kale Khan, Delhi which was provided to him while he was employed in the restaurant. It is stated that the plaintiff has misrepresented the true facts by stating himself to be the owner. It is stated that the documents filed by the plaintiff showing his possession are forged and fabricated. It has been denied that the plaintiff has raised any construction in the property in question. On these grounds, it is prayed that the the suit be dismissed.
4. On the pleadings of both the parties, the following issues were framed:
(i) Whether the plaintiff is entitled to a decree of permanent injunction/mandatory injunction against the defendant as prayed for? OPP.
(ii) Relief.
5. Evidence was led by both the parties by entering into the witness box.
6. I have heard the arguments advanced by the counsels for tboth the CS No. 01/2013 Mehtab Alam Vs. BSES & Anr. Page 4/9 parties and perused records of the case.
7. Issue wise findings are as follows:
Issue No. 1: The onus to prove this issue was on the plaintiff. Plaintiff claims ownership over the property on account of adverse possession. He stated that he has been residing in the premises in question for a long time and has now become the owner by virtue of adverse possession. Therefore, it can safely be concluded that he is not the owner of the property and has entered the premises as a trespasser.
The law of adverse possession as laid down is that:
"Adverse possession is the possession of property by a person which is adverse to every other person having, or claiming to have a right of possession by virtue of different title. Adverse possession is open only against lawful owner of the property."
By claiming his ownership by virtue of adverse possession, the plaintiff has has in a way acknowledged the title of the defendant no. 2 as a true owner. On one hand, the plaintiff claims himself to be the owner by adverse possession, on the other hand in his cross examination, he has stated that he is the owner of the property. These two stands are contradictory to each other. Either the plaintiff can claim his ownership by adverse possession or claim himself to be the absolute owner. Furthermore, the stand of the plaintiff has been changed, that the property in question is a government land and belongs to nobody which is evident from the question put to defendant no. 2 in his cross examination.
The plaintiff has sought a relief of permanent and mandatory injunction CS No. 01/2013 Mehtab Alam Vs. BSES & Anr. Page 5/9 in his favour, therefore, it would be imperative to discuss the law laid down for grant of equitable relief under the provision of Specific Relief Act. It has been held in C. Kunhammad Vs. C.H. Ahmed Hazi, AIR 2001, Ker. 101 that "two elements have to be taken into consideration for granting a mandatory injunction under section 39 of the Specific Relief Act. In the first place, the Court has to determine what acts are necessary in order to prevent a breach of obligation; in the second place the requisite acts must be such as the Court is capable of enforcing. Caution is required in the grant of preventive relief. The exercise of power to grant mandatory injunction must be attended with the greatest possible caution and is strictly confined to cases where the remedy of damage is inadequate for the purposes of justice and the restoring of things to their former condition is the only remedy which will meet the requirements of the case. The Court will not interfere except in cases where they are extreme serious damage caused which cannot be compensated."
Hence, taking the capacity of the plaintiff as an intruder, he cannot claim the relief of adverse possession since he has no equities in his favour. More so, the relief of mandatory injunction can only be granted to prevent the breach of an obligation existing in favour of the plaintiff. Since the defendant no. 2 has neither admitted the relationship of landlord/tenant or that of licensor/licensee, hence, the defendant no.2 is under no obligation to provide the basic necessities to the plaintiff who is occupying the property by virtue of adverse possession. Reference in this regard can also be made to decision of Apex Court reported as CS No. 01/2013 Mehtab Alam Vs. BSES & Anr. Page 6/9 Karnataka Board of Wakf Vs. Government of India & Ors (2004) 10 SCC 779. It was observed by the Apex Court, "A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all the facts necessary to establish his adverse possession."
It has recently been held by our own High Court in Ram Bahadur & Ors Vs. Govt. Of NCT of Delhi & Ors, C.M. (M) No. 1371/2012 and C.M. No. 20933/2012 (Stay), decided on 09.10.2014 that " in order to show entitlement to discretionary relief of injunction, not only prima facie case will have to be shown, but, in the facts of the present case, the petitioners/plaintiffs will have to show equity in their favour for claiming entitlement to the discretionary relief. The petitioners/plaintiffs have no prmia facie case, because, though as per the plaint they claimed to be in possession through their forefathers for more than 70 years, yet, I do not find any documents on record of this Court in order to establish the claim of adverse possession and for which reason their names were not included by the respondent no. 2 in the list prepared after a survey. In any case as noted above, the petitioners/plaintiffs before this Court are not claiming any entitlement to injunction on the ground of adverse possession but on the ground that once proceedings are pending under the Public Premises (Eviction of Unauthorized occupants) Act, 1971, the petitioners/plaintiffs cannot be dispossessed without due process of law.
Secondly, The plaintiff cannot claim benefit of law or equity in their CS No. 01/2013 Mehtab Alam Vs. BSES & Anr. Page 7/9 favour because they are only trespassers on land owned by the University.
Thirdly and finally, I would like to refer to the observations of the Supreme Court in its judgment in the case of Rame Gowda (dead) by LRs. Vs. M. Varadappa Naidu (dead) by LRs & Anr. (2004) 1 SCC 769 and these observations show that a person cannot claim to be in settled possession unless the possession of the person is acquiesced to by the true owner. In fact, the Supreme Court says that there is a right to every owner to use reasonable force to throw out a person who is not in settled possession.
Once the plaintiff has stated himself to be the owner and has not acknowledge the true ownership of the defendant no. 2, he cannot assert himself to be owner by virtue of adverse possession. Having intruded into the property, the plaintiff cannot now seek a relief detrimental to true owner i.e defendant no.
2. Once he is claiming himself to have trespassed into the property now it does not lie within his right to seek other facilities in the form of essential supplies. On one hand, the plaintiff is claiming right by way of adverse possession and the other hand, he is not recognizing the title of the defendant no. 2 which is not permissible under the law of land.
The defendant no. 2 in order to prove himself as a coowner has filed copy of registered sale deed in favour of his father. He has also filed a document showing the property tax being deposited by him which further substantiates his claim to be the coowner of the property. I feel that the plaintiff has miserably failed to establish his right by way of adverse possession. This issue is CS No. 01/2013 Mehtab Alam Vs. BSES & Anr. Page 8/9 accordingly decided against the plaintiff and in favour of defendants. Relief: In view of the above discussion, the suit of the plaintiff is liable to be dismissed. Dismissed accordingly. Parties to bear their own costs. Decree sheet be prepared. File be consigned to Record Room.
Announced in the open Court (Pooja Talwar)
Today on October 29th, 2014 ACJ/CCJ/ARC(SE)
Saket Court, New Delhi
CS No. 01/2013 Mehtab Alam Vs. BSES & Anr. Page 9/9