* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 01.02.2011
+ R.S.A.No.20/2011 & C.M.Nos.2121-22/2011
ASHOK KUMAR ...........Appellant
Through: Mr.Surender Kumar Gupta,
Advocate.
Versus
MCD & ANR. ..........Respondents.
Through: Nemo.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
CM No.2122/2011 (for exemption) Allowed subject to just exceptions.
R.S.A.No.20/2011 & C.M.No.2121/2011
1. This appeal has been filed against the impugned judgment and decree dated 03.11.2010 which had endorsed the findings of the trial Judge dated 03.11.2009 wbereby the suit of the plaintiff Ashok Kumar seeking permanent injunction against the Municipal Corporation of Delhi (defendant No. 1) and MCD Slum & JJ Colony Department (defendant No. 2) was dismissed. This finding of the trial Judge was affirmed in the appeal Court. 2 The plaintiff is stated to be the proprietor of Ashoka General RSA No.20/2011 Page 1 of 4 Store, Khokha No. 4, near Municipal Corporation Primary School, new Seelampur, Delhi. In 1962, the father of the plaintiff namely Daulat Ram had been allotted this khokha in terms of an allotment order dated 22.09.1976 (Ex. PW-1/4); in lieu of a benefit of a sterilization scheme. The contention of the plaintiff was that his father Daulat Ram had participated in the sterilization scheme; he had voluntary tendered himself for sterilization; in view thereof he had been allotted this khokha. After the death of his father in 1986, the plaintiff Ashok Kumar was legally entitled to retain possession of this khokha. Reliance has been placed on Ex. PW-1/4 to substantiate his submission that the act of the defendant in threatening to demolish this khokha is unwarranted; a decree of permanent injunction had been sought.
3. The defendants in their written statement had denied the contention raised by the plaintiff; defendant No. 1 had stated that the plaintiff is an encroacher upon the MCD land, MCD is legally entitled to remove this khokha. Stand of defendant No. 2 was also by and large same.
4. On the pleadings of the parties, the following five issues were framed:-
1 Whether the suit is not maintainable for want of statutory notice u/s 477/478 of the DMC Act? OPD. 2 Whether the suit is without any cause of action and same is liable to be rejected u/o7 Rule 11 CPC? OPD 3 Whether this suit is bad for mis-joinder and non-joinder of necessary parties? OPD 4 Whether the plaintiff is entitled for a decree of permanent injunction as prayed for? OPP.
5 Relief.
RSA No.20/2011 Page 2 of 4
5. Oral and documentary evidence was led by the respective parties. The allotment letter dated 22.09.1976 had been proved as Ex. PW-1/4. Death certificate of the father of the plaintiff had been proved as Ex. PW-1/5. PW-2 had been summoned from the Slum & JJ Department, MCD. PW-2 had deposed that these colonies were developed by the DDA and the plots were allotted by them; Slum & JJ Department did not have any such policy as it is only managing these colonies; the allotment as summoned is not available in their office. Even in the subsequent statement of PW-2 recorded pursuant to an application filed by the plaintiff seeking his resummoning, he had deposed on oath that the copy of allotment letters issued to Faqir Mohammad, Prabhati Lal, Radheshyam and Hazmat Ali allotted under the sterilization scheme was available; he had produced the record pertaining to shops No.2, 3, 6, 9, 10, 11, 12, 13, 17, 18, 19 & 20; copy of the allotment letters had been exhibited as Ex. PW-2/3 to Ex. PW-2/7. The case of the plaintiff is that he had been allotted Khokha No. 4 at New Seelampur. The record produced by PW-2 was of Nehru Market; he had categorically stated that this is only known as Nehru Market; he had denied the suggestion that Nehru Market also known as Nasbandi Market.
6. Admittedly the record which the plaintiff had sought to prove could not be produced and had not been proved in the version of PW-2. The Courts below had rightly held that the plaintiff was claiming a discretionary and equitable relief of injunction, he had to show some kind of a right or title to the RSA No.20/2011 Page 3 of 4 property before an injunction could be granted to him especially in view of the stand of the defendants wherein they had stated that the plaintiff is an encroacher simplicitor, on the land of the Government. Admittedly, the land belonged to the MCD.
7. Provisions of Sections 41 (h) and 38 of the Specific Relief Act had also been adverted to as also the judgment reported in AIR 2008 SC 2033 Anathula Sudhakar Vs. Buchi Reddy.
8. In this case, there was a cloud over the title of the plaintiff; he has failed to prove his legal right over the said land rightly disentitling him to the relief of injunction. The plaintiff had failed to show his interest qua the suit land. This Court is not a third fact finding Court. It can interfere in the findings of the court below only if the same are perverse. No such perversity has been pointed out. Substantial questions of law have been formulated at page 1. They all border on the document Ex. PW-1/4. This document had not been proved. Both the courts below had rightly not granted the relief prayed for by the plaintiff. No substantial question of law has arisen.
9. Appeal as also pending applications are dismissed in limine.
INDERMEET KAUR, J.
FEBRAURY 01, 2011 a RSA No.20/2011 Page 4 of 4