Delhi District Court
Shamsuddin Khan vs Bishan Sharma on 28 August, 2019
1
IN THE COURT OF SH. DIG VINAY SINGH : ADJ-2
NORTH WEST ROHINI COURTS : DELHI
MCA No. 1/2019
Shamsuddin Khan
S/o Mr. Gulam Ali Khan,
Premises No. 1 KH. No. 100,
Near Bus Stand,
Village Haider Pur,
New Delhi - 110088 ..... Appellant
Versus
1. Bishan Sharma
S/o Late Sh. Raghubir Sharma,
R/o H. No. 112, Haiderpur Village,
New Delhi - 110088
2. Jagdish Yadav
S/o Late Sh. Jawahar Singh Yadav,
R/o H. No. 131, Village Haider Pur,
New Delhi - 110088 ..... Respondents
ORDER
This is an appeal U/O 43 Rule 1 CPC r/w Sec. 151 CPC impugning order dtd. 27.11.2018 passed by Ld. ACJ-cum-CCJ- ARC, North West, dismissing an application U/O 39 Rule 1 & 2 CPC filed by the appellant/plaintiff. The suit instituted by the appellant is for permanent injunction preferred against the two respondents/defendants. During MCA NO. 1/2019 Shamsuddin Khan Vs. Bishan Sharma & Anr. Pg.. 1 of 8 2 pendency of the present appeal, the R2/D2 Jagdish expired and his LRs were brought on record vide order dtd. 14.08.2019. For the sake of clarity and convenience, the parties are referred to as the plaintiff and the defendant, respectively, as they stand in the original suit, In the impugned order, the Ld. Trial Court observed that there is no prima facie case in favour of the plaintiff who did not approach the Court with clean hands, as detailed in para A of the impugned order. The other two necessary ingredients for injunction were also held against the plaintiff.
The plaintiff instituted the suit against the two defendants claiming that he was in possession of land measuring approximately 350 Sq.Yards in premises no. 1, Khasra No. 100, near bus stand, Village Haider Pur, Delhi-
88. He claimed that the said land was given to him by the father of D2 sometime in the year 1984 for carrying on business. Since then, the plaintiff was carrying on business of running coal depot and wooden tall from the said premises and for some time even STD booth was installed. In October, 2006 electricity connection of commercial nature was obtained in the premises by the plaintiff; election voting card was prepared in January 2009; summon was received in some other case on 13.03.2018 by the plaintiff, and all these things, allegedly, reflect that the plaintiff was in possession of the premises. After death of father of D2, D2 allegedly wants to evict the MCA NO. 1/2019 Shamsuddin Khan Vs. Bishan Sharma & Anr. Pg.. 2 of 8 3 plaintiff without due process of law. It is claimed that both the defendants are in collusion with each other and were litigating falsely and filed proxy litigation in order to somehow evict the plaintiff. It is claimed that the D1 is neither owner of the premises nor is in possession of the same and thus the plaintiff cannot be evicted and D1 has no right or locus standi to remove the plaintiff from the suit property.
In his defence, D1 claimed that the plaintiff concealed material facts and did not approach the Court with clean hands. D1 claimed that Khasra no. 98, 100, 102 & 103 were already declared by the concerned Revenue Authorities as a public utility land after the father of D2 had so offer. The land was owned by father of D2 who offered it to be used as a public utility land since a temple existed in the said property for a long time, as is evident from the pleadings and other material. In the said land offered by father of D2 to be declared as a public utility land, the father of D1 was a pujari in a mandir which existed on a portion of the land. The land was so declared under notification published on 22.01.1958, as a Public Utility Land. Subsequently, father of D1 instituted a suit against the D2 which was decreed in favour of father of D1 by the Ld. Civil Judge on 26.07.2013. The said suit was for permanent injunction against disturbance of peaceful use, occupation and enjoyment by the father of D1 over the suit property as also MCA NO. 1/2019 Shamsuddin Khan Vs. Bishan Sharma & Anr. Pg.. 3 of 8 4 for mandatory injunction directing the defendant no.2 to remove his goods lying therein. The said suit was decreed in favour of D1 specifically holding that father of D1 was in possession of the property. The said suit was contested by D2 and the suit continued from year 2003 till 2013. To be more specific, it was filed on 07.11.2003. In the said suit, various witnesses were examined, a copy of the said judgment is on trial court record, and it is specifically observed that the father of D1 was able to prove that the Khasra no. 100 is a public utility land which was in the possession of father of D1 and after death of father of D1 it is in possession of LRs. It was specifically held that D2 was not in possession of the property. Therefore there is no question of any part of the property being given to the plaintiff by father of D2. Against that judgment, appeal was preferred by D2 which was withdrawn on 05.11.2014. Thereafter, execution is also filed by D1 against D2 which is pending in which D2 even filed certain objections. The claim of D1 is that D2 in connivance and collusion with the plaintiff wants to frustrate that decree.
In defence, the D2 admitted the possession of the plaintiff but claimed that the plaintiff has not approached the Court with clean hands and he is liable to vacate the property. D2 denied any collusion between himself and D1, as alleged by plaintiff. D2 however claimed that the suit property was MCA NO. 1/2019 Shamsuddin Khan Vs. Bishan Sharma & Anr. Pg.. 4 of 8 5 owned by his father and D1 has no connection with the suit property.
The Ld. Trial Court appointed a Local Commissioner in the matter who gave a report that at the time of visit by the LC in the suit property, a coal depot and wooden tall was found existing. The LC also gave an observation that the temple was located in another Khasra no. 102 and not in Khasra no.
100. In the impugned order, Ld. Trial Court heavily relied on the fact that the plaintiff concealed the factum of earlier decree against D2 in a suit preferred by father of D1 and that the documents relied on by the plaintiff to show his possession alone are not sufficient to grant interim relief and particularly the electricity bills reflected that there was negligible consumption of electricity and thus the prima facie case does not exist in favour of the plaintiff.
It is contended by the appellant/plaintiff that the plaintiff was not aware of the earlier litigation between the father of D1 and D2 and therefore, reliance by the Ld. Trial Court on the fact of concealment was grossly misplaced.
Perusal of the trial court record however reveals that the said view of the Ld. Trial Court cannot be called as infirm as the contents of plaint itself would indicate that the plaintiff did know about the litigation. In para 8 of the MCA NO. 1/2019 Shamsuddin Khan Vs. Bishan Sharma & Anr. Pg.. 5 of 8 6 plaint, it is mentioned that both the defendants in collusion filed proxy litigation to evict the plaintiff. In para 10 of the plaint, it is claimed that D1 is neither owner nor entitled and has no locus standi to remove the plaintiff from the site. The plaintiff seems to have cleverly and deliberately not divulge as to which proxy litigation he was talking about in his plaint, if he was unaware of the earlier suit. The said averments do indicate that ignorance claimed by the plaintiff as to the earlier decree is deliberate. Once in the earlier judgment the Court of competent jurisdiction came to a conclusion that in Khasra no. 100, the father of D1 was in possession and D2 was not in possession, which has been held in so many words in the judgment based on the evidence, the present suit smacks of collusion between the D2 and the plaintiff to frustrate the earlier decree.
Besides it, the view of the Ld. Trial Court that once the entire land on which the suit property is located has been declared as a public land by the revenue authorities/Delhi Government, without impleading them as one of the defendants, the plaintiff was not entitled to the relief of injunction, is also justified. The claim of appellant/plaintiff that since he is not claiming ownership and he is only seeking injunction against forcible eviction, therefore, he was not required to implead the revenue authorities, is fallacious.
MCA NO. 1/2019 Shamsuddin Khan Vs. Bishan Sharma & Anr. Pg.. 6 of 8 7 The reliance by the plaintiff on the electricity connection, voter I card and the summons received from another Court to indicate his possession does not help his case for the simple reason that the possession of the plaintiff is so reflected in the LC's report also but the said coming into possession of the suit property by the plaintiff seems to be in collusion with D2. The electricity connection, the voter I card and, the summons pertains to the period after the earlier suit was filed in November 2003. To be more specific, electricity connection was obtained in 2006. Almost negligible consumption of electricity is also a factor which has been rightly considered against the plaintiff by the Trial Court. The voter I card was issued in 2009 and the summons were issued in 2018. Once after the extensive trial in the earlier suit filed by father of D1 against D2, the Court delivered judgment holding that it was father of D1 and subsequent his LRs who were in possession of the land including Khasra no. 100, the claim of plaintiff that D1 cannot evict him is grossly misplaced.
The claim of plaintiff that admittedly father of D1 was a pujari and therefore, D1 cannot claim ownership, does not help the case of plaintiff since even in the earlier suit, father of D1 never claimed ownership but claimed injunction based on possession which was decided in his favour and therefore D1 has every right to execute the said earlier decree.
MCA NO. 1/2019 Shamsuddin Khan Vs. Bishan Sharma & Anr. Pg.. 7 of 8 8 It may be mentioned here that in the plaint, which seems to be a clever drafting, there is not even a word mentioned as to whether the plaintiff was allowed to use the property without charges or it was on some charges and as to what those charges were. Simple claim is made that the plaintiff was allowed to use the property sometime since 1984, without mentioning the clear understanding between the plaintiff and the father of D2 as to the user charges and other things, which creates a strong suspicion of collusion between plaintiff and D2 together with the fact that the D2 is in a way supporting the plaintiff and the object seems to be to frustrate the earlier decree.
Accordingly, there is no infirmity, illegality or irregularity in the order impugned under this appeal and the appeal is bound to fail. The appeal is accordingly dismissed. Once the appeal is dismissed, application U/O 41 Rule 5 CPC seeking interim order against eviction also fails and is dismissed.
The appeal file be consigned to the record room. Trial court record be sent back immediately with a copy of this order.
Announced in the open Court (Dig Vinay Singh)
on 28th August, 2019. ADJ-02 (NW), Rohini
Delhi
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