Delhi District Court
Ashok Kumar Vaid vs Municipal Corporation Of Delhi on 21 December, 2020
IN THE COURT OF SH. PRASHANT SHARMA:
ADDITIONAL DISTRICT JUDGE05: WEST:
TIS HAZARI COURTS: DELHI
CivDJ/612437/16
1. Ashok Kumar Vaid
S/o Late Sh. Kishorilal Vaid
Aged about 62 years,
R/o RA/72, Inderpuri,
New Delhi.
2. Vijay Kumar Vaid
S/o Late Sh. Kishorilal Vaid
Aged about 62 years,
R/o RA/72, Inderpuri,
New Delhi.
..........Plaintiff
Vs.
1. Municipal Corporation of Delhi
Through Commissioner,
Town Hall, Chandni Chowk, Delhi.
2. Municipal Corporation of Delhi
Through Deputy Commissioner,
Karol Bagh Zone, New Delhi.
.....Defendants
Date of institution :06.07.2009
Order Reserved On:14.12.2020
Date of Decision: 21.12.2020
SUIT FOR PERMANENT INJUNCTION
Ashok Kumar Vaid & Ors. Vs MCD Page No. 1/25
JUDGMENT
1. Plaintiffs namely Ashok Kumar Vaid and Vijay Kumar Vaid had filed the present Suit against the defendants initially praying the reliefs of declaration and permanent injunction. During course of proceedings, relief of declaration was withdrawn by plaintiffs by filing the application U/O 6 Rule 17 CPC, vide order dated 30.11.2011. Present suit therefore was a suit for permanent injunction only.
2. Contents of the plaint based on relief of permanent injunction are briefly stated below : "That father of plaintiffs namely Sh. Kishori Lal Vaid had purchased a plot bearing no. RA/72, Inder Puri, New Delhi (hereinafter referred as 'suit plot in question'), from a private builder namely M/s. Engineering & Industrial Corporation Pvt. Ltd., in the year 1957 for a sum of Rs. 1650/ vide receipt no. 2303 dated 21.06.1959. Defendants had approved a layout plan of the colony where the said suit plot in question is situated. On the said plot, father of plaintiffs had constructed his residence. Sh. Kishori Lal Vaid during his lifetime was in possession of said suit plot in question. After the death of Sh. Kishori Lal Vaid, plaintiffs are continuing in possession of said property, till date. The construction in the said plot made by father of plaintiffs was to the extent of two rooms, kitchen and bathrooms etc. Said suit plot was assessed to house tax by Ashok Kumar Vaid & Ors. Vs MCD Page No. 2/25 defendant no. 2 from 01.04.1988. After the demise of Sh. Kishori Lal Vaid in the year 1992, said property was devolved upon plaintiffs being his legal heirs. Said builder despite various requests made by plaintiffs failed to execute the sale deed in favour of plaintiffs, though it confirmed the execution of receipt no. 2303 dated 21.06.1959. Since, said builder failed to execute the sale deed in favour of plaintiffs, so plaintiffs had filed the suit for declaration and mandatory injunction bearing no. 877/98 in the year 1998 against the said builder praying the reliefs of declaration and seeking direction of execution of sale deed in favour of plaintiffs. On 29.07.2000, that suit was decreed by the concerned Court in favour of plaintiffs and said builder was directed to execute the sale deed in favour of plaintiffs. Consequently, said builder company executed a registered sale deed on 22.01.2002 in favour of their father vide application dated 19.02.2008 with the MCD. The MCD after verifying the facts and documents transferred the property in favour of plaintiffs vide order dated 08.04.2008. Plaintiffs paid entire house tax arrears to the tune of Rs. 158728/ for the period starting from 27.03.2008 till 30.03.2008. Further, plaintiff no. 1 obtained electricity connection in his name and plaintiffs are paying regular electricity charges to NDPL Company till date. Based on aforesaid facts, plaintiffs asserted their title and continuous possession over suit plot in question. It was claimed by plaintiffs that five properties in a row i.e. from RA72 to RA Ashok Kumar Vaid & Ors. Vs MCD Page No. 3/25 76 on the West and East side of the suit plot in question were constructed by different persons. There a open land near the property of plaintiffs which was encroached by some powerful elements at the behest of local politicians and municipal corporation had taken action against the said encroachments. To the surprise of the plaintiffs, officials of corporation came to the spot on 12.06.2009 and informed plaintiffs that MCD was going to carve out a park in the said locality including the suit plot in question of plaintiffs. On 16.06.2009, number of officials of defendants again came and warned the plaintiffs to vacate the suit plot in question for the purpose of construction of park by MCD. Plaintiff no. 1 made written complaint on 19.06.2009 to defendant no. 2 thereby apprising about the said chain of events but of no avail. Few residents of Inder Puri Extension and Inder Puri had filed writ petition before Hon'ble High Court of Delhi in March, 2009, in which plaintiffs were also asserted parties. In the said proceedings, Harinder Singh Chawla and Raja Inderjit Singh Chawla had filed reply to the RTI application in response to the RTI application which they had moved to Land and Estate Department and Horticulture Department. In its reply, Land and Estate Department stated that said department had no record of land in question. Horticulture Department of MCD in its reply dated 01.10.2010 stated that land where suit plot in question is situated, was not handed over to it by land owning agency/ department and the corporation is not the land owning Ashok Kumar Vaid & Ors. Vs MCD Page No. 4/25 agency. So, as per plaintiffs, area where suit plot in question falls was never acquired by defendants and plaintiffs have legal right over the said property. Plaintiffs apprehended that they could be dispossessed from the said property illegally and hence, they moved the Court by filing the present suit. It is prayed that decree of permanent injunction be passed against defendants thereby restraining defendants and their agents to interfere with the peaceful possession and occupation of suit plot in question by plaintiffs except in due course of law."
3. Defendants filed their Written Statement jointly. They took preliminary objections viz; that suit was barred U/Sec. 477 & 478 of DMC Act, 1957 and that plaintiffs had not moved the Court with clean hands. They explained that in the previous suit no. 877/98, defendants herein were necessary parties but they were not impleaded in the said case. As per the approved layout plan, Inder Puri which was approved by MCD vide resolution no. 2659 dated 03.01.1983, the plot in question i.e. RA/72, Inder Puri, New Delhi, was shown as a park. That fact was concealed by plaintiffs as well as private colonizers i.e. M/s. Engineering & Industrial Corporation Pvt. Ltd. Apart from that, the area so marked in the layout plan, was approved by West DMC in October 1955. Further, as per resolution no. 517 dated 29.04.1983, colonizers sold all the plots in the colony where suit plot in question is situated on the basis of layout plan, whereas at the instance of colonizers, Delhi Development Provisional Authorities sanctioned other layout plan of the locality in October, 1957, which was never notified to the plot holders/ house owners. The Inder Ashok Kumar Vaid & Ors. Vs MCD Page No. 5/25 Puri came under the jurisdiction of MCD in 1961 and Standing Committee vide its resolution dated 14.07.1961 and 14.06.1965 had sanctioned the revised layout plan. The corporation so far is filing the layout plan as approved by the Standing Committee in June, 1965. Now, it has come to the note of MCD that certain encroachers had encroached the aforesaid locality illegally. Plaintiffs as such as no legal title over the suit plot in question. On merits, case of the plaintiffs was refuted and referenced was made to the aforesaid preliminary objections, which are not repeated here for the sake of brevity.
4. Further, defendants claimed that decree in previous suit i.e. 877/98 is not binding upon defendants as defendants were not party to that suit. Further, it was claimed that mutation in house tax record by defendant did not give the title of ownership to plaintiffs as said mutation was made by MCD for receiving the property tax only. On the bais of said reply, defendant prayed for dismissal of this suit.
5. Replication to the Written Statement of defendants was filed by plaintiffs thereby controverting the claim of defendants and reiterating the facts as mentioned in the plaint. Contents of the same are not repeated here for the sake of brevity.
6. After completion of pleadings, following issues were settled:
(i) Whether the suit of the plaintiffs is not maintainable? (OPD)
(ii) Whether the plaintiffs are guilty of suppression of relevant facts or not coming to the Court with clean hands and if so, its effect?(OPD) Ashok Kumar Vaid & Ors. Vs MCD Page No. 6/25
(iii) Whether plaintiffs are owner in possession of the suit property no. RA/72, Inderpuri, New Delhi?(OPP)
(iv) Whether the plaintiffs are entitled to permanent injunction?(OPP)
(v) Whether the property of the plaintiffs fall within the area earmerked for park alleged by the defendant Corporation?(OPD)
(vi) Whether the suit property is public land vested in the Corporation, and plaintiffs are encroachers over the public land?(OPD)
(vii) Whether the resolution dated 03.01.1983 of the Standing Committee of the Municipal Corporation of Delhi has been approved by the Commissioner of the defendant Corporation?(OPD)
(viii) Relief.
7. Plaintiff no.1 i.e. Ashok Kumar Vaid examined himself as PW1 and tendered his evidence by way of affidavit as Ex.PW1/1 in which he reiterated the contents of plaint which are not repeated here for the sake of brevity. PW1 relied upon following documents: (1) Ex. PW1/A: Receipt no. 2303 (2) Ex PW1/B: Letter of possession (3) Ex PW1/C: Site Plan (4) Ex PW1/D & Ex PW1/E: Letters dated 27.07.1994 & 02.08.1994 respectively.
(5) Ex PW1/F : Certified copy of the judgment and order. (6) Ex PW1/G : Sale deed (7) Ex PW1/H : Order dated 08.04.2008 (8) Ex PW1/I : Receipts (9) Ex PW1/J : Electricity bill dated 23.05.2009 Ashok Kumar Vaid & Ors. Vs MCD Page No. 7/25 (10) Ex PW1/K : Certified copy of lay out plan (11) Ex PW1/L : Letter dated 19.06.2009 (12) Ex PW1/M (colly) : RTI applications (13)Ex PW1/N : Show cause notice
8. Plaintiff examined Sh. Rajiv Dutt as PW2 and tendered his evidence by way of affidavit as Ex.PW2/1. He did not rely upon any documents.
9. PW3 Sh. Rajesh Kumar, Assistant Zonal Inspector, Property Tax Department, Karol Bagh Zone, North DMC was a summoned witness. He brought the summoned record i.e. application filed by plaintiff before MCD on 19.02.2008 is Ex PW3/1.
10. After examining PW3, plaintiffs closed their evidence.
11. Matter was then fixed for defendant's evidence.
12. Defendants examined Sh. Keshav Lal, Assistant Director (Horticulture), Karol Bagh zone, North DMC, Anand Parbat, New Delhi as DW1 and tendered his evidence by way of affidavit as Ex.DW1/A in which he reiterated the contents of plaint which are not repeated here for the sake of brevity. PW1 relied upon following documents: (1) Ex. DW1/1: The erstwhile MCD has approved the layout plan of Inderpuri Colony vide Resolution no. 303 dated 14.06.1965. (2) Ex. DW1/2 : The original approved layout plan, approved vide Ashok Kumar Vaid & Ors. Vs MCD Page No. 8/25 Resolution no. 303 dated 14.06.1965, copy of which is on Court's Record.
(3) Ex DW1/3: The erstwhile MCD has also approved the adjustment of built up plots in Inderpuri Extension and Regularizatio of deleted area vide Resolution no. 2659 dated 03.01.1983.
(4) Ex DW1/4 : The original approved Regularization plan, approved vide Resolution No. 2659 dated 03.01.1983.
(5) Mark A : Copy of layout plan submitted by M/s Engineering and Industrial Corporation Ltd.
13. After examining DW1, defendants closed their evidence.
14. Consequently, matter was fixed for final arguments.
15. After hearing final arguments, matter was fixed for judgment.
16. In subsequent paragraphs issues are decided.
Issue no. 1, 2, 3 & 4
(i) Whether the suit of the plaintiffs is not maintainable? (OPD)
(ii) Whether the plaintiffs are guilty of suppression of relevant facts or not coming to the Court with clean hands and if so, its effect?(OPD)
(iii) Whether plaintiffs are owner in possession of the suit property no. RA/72, Inderpuri, New Delhi?(OPP) and Ashok Kumar Vaid & Ors. Vs MCD Page No. 9/25
(iv) Whether the plaintiffs are entitled to permanent injunction?(OPP)
17. Issues no.1, 2, 3 and 4 are interrelated, therefore, I am deciding the said issues jointly, in my subsequent paragraphs.
18. To start with, I find that crux of the matter revolved the ownership of suit property in question. As per plaintiffs, their father Late Sh. Kishori Lal Vaid had purchased suit property in question as a plot from colonizer on 21.06.1959. Sh. Kishori Lal Vaid made construction of two rooms, kitchen and bathroom etc. on the said plot in 1985 and 1989 1990. Ordinarily, a reasonable prudent person would make construction in his plot which he had purchased, after getting sale deed executed in his favour and after obtaining sanctioned site plan from concerned authority. Sh. Kishori Lal Vaid failed on both accounts. PW1 Ashok Kumar Vaid who is son of Sh. Kishori Lal Vaid deposed in his cross examination that Sh. Kishori Lal Vaid had raised construction without sale deed in his favour and without getting sanctioned site plan from concerned authority. So the said construction of suit property in question was illegal in nature. Infact PW1 Ashok Kumar Vaid deposed in his crossexamination that he was not sure as to whether construction of suit property in question was an illegal construction or not. His said deposition indicated that he himself was not sure about legality of construction of suit property in question. That uncertainty did not help the cause of plaintiffs.
Ashok Kumar Vaid & Ors. Vs MCD Page No. 10/2519. Moving further I failed to gather the reason/s which avoided Sh. Kishori Lal Vaid from asking colonizer to execute sale deed in his favour between 1959 till 1992 when Sh. Kishori Lal Vaid died. Absence of answer in this regard improbablized the case of plaintiffs.
20. Further, plaintiffs failed to place on record any proof regarding the fact that Sh. Kishori Lal Vaid during his lifetime had disclosed to income tax authorities regarding purchase of suit property in question. Plaintiffs never whispered in their evidence about the said aspect. It was a material omission on their part. Ordinarily once a reasonable prudent person paying income tax, purchases an immovable property he/she has to apprise about the same to Income Tax Authorities by mentioning in his/her return. Sh. Kishori Lal Vaid did not do so. That inaction created doubt regarding his bonafide.
21. Plaintiffs had claimed in their pleadings and evidence that suit property in question was mutated in their names in government records. In support thereof they filed letter dated 08.04.2008 Ex P1 issued by Municipal Corporation of Delhi. That letter in para 2 clearly noted that mutation in the name of plaintiffs was for the limited purpose of payment of house tax and it will confer any legal right, title or ownership whatsoever under Section 128/132 of DMC Act, 1957. That letter, therefore, did no give any ownership, right or title to plaintiffs and was of no use for plaintiffs, for claiming their title. The property tax bills Ex P2 for the year 20032004 and electricity bills Ex P1/5(colly) also did Ashok Kumar Vaid & Ors. Vs MCD Page No. 11/25 not confer any right, title or interest upon plaintiffs, as purpose of those documents was never to confer any title to plaintiffs.
22. This brings me to the show cause notice Ex PW1/N dated 28.06.1994 issued by MCD, Karol Bagh addressing plaintiff no.1. The contents of said notice needs to be mentioned in verbatim below. Since English translated copy of said notice was placed on record by plaintiffs, so same is mentioned here: MUNICIAPAL CORPORATION OF DELHI DELHI MUNICIPAL CORPOATION ACT, 1957(66 OF 1957) U/S 344(1) AND SECTION 343/SHOW CAUSE NOTICE No. 131701 Dated: 28.06.1994 No. B/UC/KBZ/94/189 Whereas you Sh. Ashok Kumar Vaid S/o R/o RA72, Inderpuri, Delhi as per Section 332 of Municipal Corporation of Delhi Act 1957 have started/construction/house as above. I V. K. Bhaia ZE(B) who has U/s 491 in the said Act has been legally authorized U/s344(1) that you stop the construction on the said premises. You are also informed that if you do not stop construction after receipt of this notice action will be taken against you U/s 343 of the Act without any further information to you and action will also be taken against you U/s344(4) of the Act, U/s construction at Ground Floor, as per rough red sketch shown below:
your are hereby informed that as per above mentioned reasons the beginning/complete/construction is unauthorized and therefore your hereby directed to show cause within three days of receipt of this notice as to why the aforesaid raised after the receipt of the show cause notice may not be ordered to be demolished. If you do not appear on the date in time fixed in this notice it will be presumed that you nothing to say in the mater, and thereafter the matter will be decided.
C RA Park Road G 72 H S Sd/ Ashok Kumar Vaid & Ors. Vs MCD Page No. 12/25 Name:V. K. Bhatia ZE(B)/KBZ Delhi Nagar Nigam Sd/ 27.06.1994 Sh. Ashok Kumar Vaid RA72, Inderpuri, Delhi //TRUE TYPED COPY//
23. Vide said notice Ex P1, plaintiffs were informed that beginning /complete protection of suit property in question was unauthorized and that plaintiffs should give reason/s as to why said property be not demolished.
24. Aforesaid notice should have put plaintiffs on guard. They should have very well understood by that notice that a Government authority was not recognizing the legal status of suit property in question. In such situation plaintiffs should have filed suit for declaration being owners of suit property in question by impleading MCD. Plaintiffs did not do so.
They, for reasons best known to them did file suit for declaration and mandatory injunction bearing no. 877/98, but without impleading MCD. I failed to understand as to why MCD was not made party in that suit by plaintiffs. It was MCD which was and is still disputing the ownership rights of plaintiffs. So, it was a necessary party in that suit. The decree dated 29.07.2000 obtained by plaintiffs in that suit was inconsequential in nature so far as defendants are concerned. Infact plaintiffs should have prayed for declaration of show cause notice Ex PW1/N to be null and void, which they did not do. So situation which exist as on today is that show cause notice Ex PW1/N holds its ground.
Ashok Kumar Vaid & Ors. Vs MCD Page No. 13/2525. Plaintiffs knew very well that their ownership status was under
cloud, in the wake of aforesaid show cause notice. That is why they filed present suit praying relief of decree of declaration thereby declaring them owners of suit property in question on the basis of sale deed dated 22.01.2002, initially. During course of proceedings plaintiffs withdrew aforesaid relief of declaration by filing an application under Order 6 Rule 17 CPC. In the said application, plaintiff claimed that since Ld. Civil Judge had decreed the suit for declaration & mandatory injunction on 29.07.2000, so they were not pressing for relief of declaration. I failed to understand as to why plaintiff did so. Reason being that in their original plaint they had mentioned about decree dated 29.07.2000 in para
8. So plaintiffs very well knew that said decree was passed by the concerned Court, as on the date of filing of suit. If that is so, then plaintiffs should not have asked for relief of declaration at the very first instance. Instead, they did pray for said relief. As such nothing changed between filing of the suit and filing of application under Order 6 Rule 17 CPC. Even the counsel for plaintiffs, was the same on both said occasions. So, plaintiffs once again shied away from seeking the relief of declaration being owners of suit property in question as against MCD.
The said attitude of plaintiffs indicated that they knew shortcoming in their case as against MCD and that is why kept on avoiding facing MCD. Here I must mention that application under Order 6 Rule 17 CPC was not decided on merits vide order dated 30.11.2011. It was allowed as counsel for defendants did not object to it.
Ashok Kumar Vaid & Ors. Vs MCD Page No. 14/2526. Coming to the judgment and decree dated 29.07.2000 passed by Ld. Civil Judge. The said decree as such was not consequential towards defendants as they were not party therein. Apart from that, plaintiffs had taken the stand in said suit that they had become owners of suit property in question by way of adverse possession as they have uninterrupted, exclusive and continuous possession of the property from 1959 till date (as noted in page 4 of the judgment Ex PW1/F). That plea of plaintiffs created confusion. Ordinarily a person becomes owner of an immovable property either by single sale deed or by adverse possession. Both the said modes cannot go hand in hand simultaneously. In the present suit plaintiff owned an explanation as to why they had taken said plead of adverse possession in their previous suit. Plaintiffs very conveniently avoided it. Infact they did not whisper about it in their pleadings and evidence. Their said plea of adverse possession indicated that they were not sure about the manner in which they had become owners of suit property in question. The said uncertainty created doubt regarding veracity in their claims.
27. In addition to that I find that there remained a strong probability of collusion between plaintiffs and the colonizer. There are certain reasons for coming to said conclusion as mentioned below: 27.1 Firstly, in judgment Ex PW1/N, Ld. Court noted the facts based on pleadings of plaintiffs. It was noted as per the claim of plaintiffs Ashok Kumar Vaid & Ors. Vs MCD Page No. 15/25 colonizer failed to execute sale deed in faovur of plaintiffs due to absence of record, then it was claimed that colonizer told plaintiffs that execution of sale deed is a mere formality, then it was claimed that colonizer refused to execute sale deed, then colonizer demanded Rs.500 to execute sale deed, then again on 31.03.1998 coloniser refused to execute sale deed and then coloniser demanded Rs.20,000/ from plaintiffs for execution of sale deed failing which colonizer shall execute sale deed in favour of third party. So, those claims of plaintiffs indicated that stand of colonizer kept on changing. Contrary to the same PW2 Rajiv Dutt did not make a whisper about said changing stands. It created doubt. Infact said changing stands of colonizer seemed to be improbable at the very outset, if seen from the perspective of an ordinary prudent person. It becomes all the more dubious when I find that colonizer after appearing in the Court through counsel failed to pursue the matter and was proceeded exparte.
27.2 Subsequent to this passing of judgment Ex PW1/N, coloniser never chose to challenge that judgment. Surprisingly, the director of said colonising company in present case simply appeared in support of plaintiffs and simply deposed fact in tune with the case of plaintiffs. His testimony and conduct remained doubtful for certain reason. Firstly, his deposition from the side of plaintiffs was a suspicious act on his part as he had contrary stand, as mentioned in judgment Ex PW1/N. Secondly, this witness in his deposition never challenged the case of plaintiffs, which ordinarily he should have considering the changing stands of Ashok Kumar Vaid & Ors. Vs MCD Page No. 16/25 coloniser, as noted above. So I have every reason to conclude that plaintiffs and coloniser had colluded together illegally for obtaining exparte judgment Ex PW1/N. This conclusion did not help the case of plaintiffs.
28. So judgment Ex PW1/N did not given any right, title or interest to plaintiffs as against defendants.
29. In addition to that neither PW1 nor PW2 placed on record approved layout plan of the area when suit property in question is situated. It was plaintiffs who had claimed that they were residing in a property meant for residential purposes. As per Section 101 of Indian Evidence Act onus rested upon them to have proved the said layout plan. They failed to do so. Infact the judgment Ex PW1/N at page 1 it was noted that coloniser had supported approved lay out plan but it did not see light of the day till date.
30. PW1 relied upon RTI application of Raja Inderjeet Singh Ex PW1/M (colly) addressed to the Commissioner, Land and Estate Department (MCD), vide which he sought information regarding transfer of certain properties including property in question to MCD (land & Estate Department) dated 16.06.2010. It was replied by MCD vide reply dated 01.10.2010 Ex DW1/PX1 stating that suit property in question amongst other properties had not been transferred to Horticulture Department. The said application and its reply did not remove the Ashok Kumar Vaid & Ors. Vs MCD Page No. 17/25 aforesaid doubts and shortcomings in the case of plaintiffs and therefore I discarded them being irrelevant in nature.
31. Reverting back to the testimony of PW1, I find that he failed to remove aforesaid shortcomings in his case. In addition to that he deposed in his crossexamination that in the layout plan passed by the Corporation suit plot in question was shown but he failed to place on record that layout plan. Coupled with the same he did not recollect the passing of decree dated 29.07.2000 in civil suit no. 877/1998 which create doubt regarding the veracity of his testimony as said want of knowledge was an important omission on his part. Being a prudent litigant he should have known those facts with clarity.
32. Further PW1 did not know as to who had prepared site plan of suit property Ex PW1/C. He did not see the resolution in favour of Rajiv Dutt passed by corporation authorising him to execute sale deed Ex PW1/G in favour of plaintiffs. Further this witness failed to identify North and South position in the site plan Ex PW1/C so it indicated that he had no complete knowledge about the site plan filed by him. In such situation plaintiffs should have examined the architect who had prepared the said site plan, which they did not do and therefore, said site plan was not proved by them as per law.
33. Further, PW1 had no knowledge as to whether sanction from MCD was required before raising construction in suit property in Ashok Kumar Vaid & Ors. Vs MCD Page No. 18/25 question. It indicated that he lacked knowledge regarding relevant facts. He was having no knowledge about the layout plan of MCD. In the same breath he admitted that layout plan of Inderpuri was passed in 1953 in which roads, parks and other places of public utility were mentioned and said plan was revised in 1965. So he did not maintain a uniform stand regarding layout plan of MCD. It seemed that he was evading questions pertaining to the layout plan of MCD. The said conduct and demeanor of PW1 did not inspire my confidence in his testimony. Therefore, I discarded his testimony being untrustworthy and unreliable.
34. PW2 Sh. Rajiv Dutt was one of the director of Engineering and Industrial Corporation. The said company was the coloniser, which had allegedly sold suit property in question, in the shape of a plot to Late Sh. Kishori Lal Vaid. This witness in his testimony, was not sure about the contents or the layout plan relied by him, which he referred as Mark A. He was not able to pin point the location of suit property in question, in the said plan. Coupled with the same, he deposed that suit property in question was never handed over to Sh. Kishori Lal Vaid, which contradicted the case of plaintiff. He lacked knowledge regarding the fact that his company had received consideration amount from late Sh. Kishori Lal Vaid.
35. Coupled with the same, PW2 did not file his authority letter to depose on behalf of the company, which created doubt regarding authenticity of his testimony. He did not file summons issued by the Ashok Kumar Vaid & Ors. Vs MCD Page No. 19/25 Court, based on which, he had allegedly come to depose in favour of plaintiffs. There remained possibility he was an interested witness of plaintiff. The said possibility became all the more concrete, when he deposed that his affidavit was prepared by counsel of plaintiffs. Further, this witness did no whisper as to why his company had initially refuted plaintiffs from executing sale deed of suit property in question, in their favour. Infact this witness did not refer to the previous litigation in which judgment Ex PW1/F was passed. This witness did not depose that suit property in question was a legal property, constructed by father of plaintiff. It was not his case that the plot in which suit property in question was constructed, was meant for raising of said construction. Therefore, his testimony is not believed by me to be trustworthy and reliable. I discarded it accordingly.
36. Plaintiffs thus failed to prove their case, based on preponderance of probabilities.
37. Defendants had examined DW1 Keshav Lal, Asst. Director, Horticulture, North DMC, Anand Pabat, New Delhi, who deposed that plaintiffs in collusion with M/s Engineering & Industrial Corporation Ltd., Patel Nagar, New Delhi12 had filed previous suit, in which judgment Ex PW1/F was passed. That deposition is found by me to be probable, in the wake of aforesaid appreciation and conclusion.
38. DW1, in his crossexamination, was not asked by plaintiffs, as to Ashok Kumar Vaid & Ors. Vs MCD Page No. 20/25 whether suit property in question was legally constructed by plaintiff or not? He was asked about the fact pertaining to the application, made by the coloniser for approval of the colony, where suit property in question was situated. The said aspect was irrelevant, as plaintiffs had the onus, to have proved the fact that they had constructed suit property in question, on the basis of approved site plan and on the basis of approval of the colony by the concerned authority. They failed to do so.
39. DW1 conceded the fact that defendants have not placed on record any document, notifying plaintiffs that suit property in question does not exist in Inder Puri Colony. The said deposition was inconsequential, for the reason that show cause notice Ex PW1/N clearly apprised/notified plaintiffs that suit property in question was illegal in nature. That notice was admitted by plaintiffs in their evidence.
40. DW1 was asked questions with regard to the RTI applications and its replies referred as Ex DW1/PX. Those applications were made by Raja Inderjeet Singh, addressing the department of the defendants. Those applications and their reply were not relevant for the purpose of adjudication of this case, as plaintiffs failed to prove the fact that suit property in question was legally constructed by them.
41. DW1 denied the fact that documents relied by him were forged.
42. As such testimony of DW1 is found by me to be trustworthy.
Ashok Kumar Vaid & Ors. Vs MCD Page No. 21/2543. The net result is that plaintiffs failed to prove their case based on preponderance of probabilities. Aforesaid issues are decided against plaintiffs.
Issue no. 5 & 6
(v) Whether the property of the plaintiffs fall within the area earmerked for park alleged by the defendant Corporation?(OPD) and
(vi) Whether the suit property is public land vested in the Corporation, and plaintiffs are encroachers over the public land?(OPD)
44. Onus of proving aforesaid issues rested upon defendants.
45. The notice dated 28.06.1994 Ex PW1/N issued by MCD/defendant, indicated that suit property in question was illegal in nature. It indicated that said property was an encroachment done by plaintiffs on the land of MCD. Coupled with the same, plaintiffs failed to place on record sanctioned lay out plan of the area where suit property in question was situated. Further, the lay out plans, filed by defendants Ex DW1/1 to Ex DW1/4, nowhere noted that suit property in question was located in the area, meant for residence purpose. Therefore, aforesaid issues are decided in favour of defendants.
Ashok Kumar Vaid & Ors. Vs MCD Page No. 22/25 Issue No. 7(vii) Whether the resolution dated 03.01.1983 of the Standing Committee of the Municipal Corporation of Delhi has been approved by the Commissioner of the defendant Corporation?(OPD)
46. Onus of proving aforesaid issue rested upon defendants.
47. For proving the fact that resolution dated 03.01.1983 of Standing Committee of MCD had been approved by Commissioner of Defendant Corporation, defendants placed on record the document Ex DW1/3 which noted the resolution dated 03.01.1983 approved by MCD and original approved regularization plan Ex DW1/4. Those documents were not objected to by plaintiffs. Therefore, defendants proved their claim that resolution dated 03.01.1983 of Standing Committee of MCD was approved by Commissioner of defendants Corporation.
48. Aforesaid issue is therefore, decided in favour of defendants.
Relief
49. Before coming to the conclusion, I must mention here that plaintiffs had prayed in their suit that by a decree of permanent injunction, defendants and their agents be restrained from interfering in the peaceful possession and occupation of suit property in question with plaintiffs, except in due course of law. That prayer in other words meant that plaintiffs had prayed to the Court that defendants be restrained from ousting them from suit property in question, except in due course of law.
Ashok Kumar Vaid & Ors. Vs MCD Page No. 23/2550. The expression 'due course of law' and 'due process of law', are one and the same thing. In case law titled as East India Hotels Ltd. Vs Syndicate Bank, 1992 SUPP (2) SCC 29 (36) it was observed that "due process of law implies that right of person effected thereby to be present before the Tribunal which pronounced judgment upon the question of life, liberty or property in its most comprehensive sense; to be head by testimony or otherwise and to have the right determination of the controversy be proof every material fact which bears on the question'.
51. So aforesaid expression is understood by me, as a process in which the aggrieved/affected parties raises the issues of his right over a property which is heard by the Court and is decided in its most comprehensive manner on the basis of proof brought on record.
52. In the case in hand, plaintiffs had claimed themselves to be owners of suit property in question. That claim was contested by defendants. Both the parties led their evidence. Plaintiffs failed to prove their legal right as owner of suit property in question. So, said claim of plaintiff was adjudicated by this Court on the basis of pleadings and evidence. The net result is that all the ingredients of "due course of law" are met with. In other words, no fresh round of litigation, to be initiated by defendants, is required for removal of plaintiffs from suit property in question.
Ashok Kumar Vaid & Ors. Vs MCD Page No. 24/2553. At the same time, considering the fact that plaintiffs are residing in suit property in question, for more than two decades, it will cause grave injustice to them, if they are called upon to vacate suit property in question, henceforthwith. Therefore, under Section 151 CPC, three months time period is given to plaintiffs to vacate suit property in question. Defendants are restrained from initiating process for removal of plaintiffs from suit property in question, till the expiry of three months from today, i.e. till 22.03.2021. Here I must clarify that aforesaid right granted to plaintiffs, shall not extend their statutory right to file appeal before competent forum against this judgment.
54. Plaintiffs filed certain case laws in support of their claim. I have perused and considered those case laws. Those case laws are distinguishable on facts and therefore, they do not help the cause of plaintiffs.
55. Suit of plaintiffs accordingly, stands dismissed.
56. Decree sheet be prepared accordingly and para 55 of this judgment be mentioned in the said decree.
Announced in the open Court (PRASHANT SHARMA)
Dated: 21.12.2020 ADJ05, WEST DISTRICT
TIS HAZARI COURT, DELHI
Ashok Kumar Vaid & Ors. Vs MCD Page No. 25/25