Vivek Jolly vs Sri Ram And Others
2001 Latest Caselaw 611 Del

ORDER

K.S. Gupta, J.

1. Plaintiff filed this application under Order 39 Rules 1 & 2 read with section 151 CPC for issue of ad interim injunction restraining defendant No.6 from in any manner demolishing or interfering with the use and occupation of property bearing No.39 & 40 Village Begumpur, P.O. Malviya Nagar, New Delhi.

2. Suit was filed by plaintiff alleging that he Along with defendant No.4 are partners of the firm M/s.Profile India which is engaged in the business of exports. Defendant No.2 was allotted Plot Nos.39 and 40 measuring 240 sq.yds and 260 sq.yds respectively in Begumpur by Delhi State Harijan Cooperative Association Ltd in or about 1st October 1972. Plaintiff and defendant No.4 purchased property bearing Nos.39 and 40 for a total consideration of Rs.18 lakhs under a registered sale deed dated 21st April 1998 from defendant No.2. Entire sale consideration excepting Rs.3 lakhs was paid through cheque/bank draft. It is further alleged that said property has since been mutated in the names of plaintiff and defendant No.4 by MCD, defendant No.6 and house tax also paid to defendant No.6. Defendant No.1, one of the sons of defendant No.2 filed Suit being No.365/96 for mesne profits, possession and permanent and mandatory injunctions. By the judgment dated 8th March 2000 this suit has been disposed of by an Additional District Judge and defendant No.1 has been held to be the owner to the extent of total length of plot No.35 not exceeding 60 ft as shown in the plan Ex.PW1/D-1. Possession on rest of 5 ft of land has been held to be encroachment made by defendant No.1 in addition to his not being the owner of the portion marked red in said plan Ex.PW1/D-1. Defendant No.4 who was imp leaded as defendant No.3 in said Suit No.365/96, was proceeded ex-parte on 14th May 1996 which order was revoked on 11th July 1997. Again he was proceeded ex parte on 13th August 1997 which order was recalled on 19th March 1998. Yet another ex-parte proceeding followed on 14th July 1998 against him and by the order dated 19th April 1999 that ex-parte order was declined to be set aside by the Additional District Judge. It is stated that attitude and conduct of defendant No.4 have been the subject matter of comment in said suit and the plaintiff would not, therefore, like to elaborate any further in the matter. It is also alleged that though the plaintiff is joint owner of said property with defendant No.4 but he was not imp leaded as a party in said suit No.365/96 for the reasons best known to defendant No.1. Defendant No.4 also did not disclose in the written statement filed in that suit that he holds the property jointly with the plaintiff. Plaintiff filed application under Order 1 Rule 10 CPC for being joined as a party in the above Suit. However, that application was dismissed by the order dated 6th November 1999 observing that the dispute pertained to property No.35 and not property No.39. It is stated that defendant No.6 was also not a party to said Suit No.365/96 but by the order dated 8th May 2000 notice has been issued to Commissioner, MCD for appearance on 21st July 2000. It has been reliably learnt that Commissioner, MCD is to report on the demolition on 21st July 2000. It is claimed that plaintiff met J.P.Singh, an officer on MCD on 5th June 2000 and there is threat that suit property would be demolished on 9th June 2000. It was prayed that by a decree it be declared that property bearing Nos.39 & 40 are free of any taint or any unauthorised encroachment upon the land of defendant No.6. Decrees of prohibitory and mandatory injunctions are also sought to be passed against defendants 1 2, 3, 5 and 6 in any way interfering with the peaceful enjoyment of suit property by the plaintiff and defendant No.6 demolishing it.

3. In the suit aforesaid I.A. was filed by the plaintiff and on 7th June 1996 an undertaking was given on behalf of defendant No.6 that suit property will be demolished in the meantime.

4. Defendant No.4 who was served with summons and notice and chose to remain absent, was proceeded ex-parte Along with defendant No.5 by the order dated 1st August 2000.

5. Defendants 1 & 6 have contested the suit by filing written statements.

6. Defendant No.6 has alleged that its House Tax Departments is not concerned with unauthorised construction or encroachment on public land. It is only the Building or Work Department which looks after unauthoried construction and encroachment on public land. In Suit No.365/96 by the judgment dated 8th March 2000, plaintiff, Khubi Ram, Bal Kishan, Navin Kapoor and Kali Ram, defendants therein have been directed to clear the service lane and remove iron gate. It has further been directed that all unauthorised construction from service lane in front of plot Nos.33 to 38 be cleared. It is further alleged that by the order dated 8th May 2000 in the said suit notice had been issued to Commissioner, MCD to appear in court on 21st July 2000. Concerned officers of answering defendant after visiting the site have found that as per layout plan the area marked in red in site plan is an encroachment on public land. Plaintiff has encroached upon public land and that encroachment has to be demolished.

7. In his written statement defendant No.1 has, interalia, alleged that defendant No.2 was allotted Plot No.33, measuring 150 sq.yds by Delhi State Harijan Cooperative Association Limited vide receipt No.385 dated 1st October 1972 for Rs.1,000/- issued by the Secretary of Association. It is emphatically denied that Plot Nos.39 and 40 either exist at the site or allotted by Delhi State Harijan Cooperative Association Ltd to defendant No.2 or defendant No.3 or anyone else at any point of time. It is claimed that plots allotted by said Association were not more than the sizes of 150 or 160 sq.yds. It is pleaded that plaintiff and defendants 2 to 4 have fabricated alleged receipt dated 1st October 1972 and certificate dated 1st February 1980 regarding allotment of alleged plots No.39, measuring 240 sq.yds and No.40, measuring 260 sq.yds. The defendant No.2 gave private numbers 39 and 40 to his portion of property No.134-A and it was this portion which was assessed to House tax. It is stated that defendant No.5 was allotted Plot No.35 while answering defendant Plot No.34 by the aforesaid Association and they mutually exchanged their plots vide agreement dated 10th March 1993. It is further alleged that plaintiff being partner with defendant No.4 in firm M/s.Profile India had full knowledge of the pendency of Suit No.365/96 and he secretly watched the proceedings in suit. Later on, the plaintiff filed application under Order 1 Rule 10 CPC seeking impleadment in the said suit which was dismissed by the order dated 6th November 1999. This order has become final and binding on the plaintiff having not been further challenged. Defendant No.2 did not have any right to sell the suit plots either to plaintiff or defendant No.4. Sale deed 21st April 1998 in favor of plaintiff and defendant No.4 is invalid. The plaintiff being encroacher and land grabber is not entitled to the reliefs prayed for. It is further alleged that the area of Village Begumpur was urbanised vide Notification No.F-9(2)/66 Law.Corp. issued on 28th May 1966 by the State Government and Municipal Building bye-laws are applicable to suit property. Construction of suit property was without sanction and is thus unauthorised.

8. Defendants 6 and 1 also filed replies and have resisted the application on the pleas similar to those taken in written statements filed by them.

9. I heard the learned counsel for plaintiff, defendant No.6 and defendant No.1.

10. Submission advanced on behalf of plaintiff was that plaintiff was not a party to Suit No.365/96 and his application seeking impleadment as defendant was disallowed by the order dated 6th November 1999; defendant No.4 who was arrayed as defendant No.3 in said suit and is joint owner of suit property Along with plaintiff, did not effectively contest the suit; plaintiff having purchased the suit property Along with defendant No.4 for valuable consideration of Rs.18 lakhs and property also having been mutated in their names and house tax paid, is entitled to the ad interim injunction prayed for. In support of this submission my attention was invited to the photostat copies of sale deed dated 21st April 1998 (at pages 22 to 32), mutation order (at pages 38 and 39), notices demanding House tax (at pages 40 to 42), two letters, both dated 1st February 1980, two receipts, both dated 1st October 1972 (at pages 43 to 46) issued under the signatures of Amar Singhy Chalia, Secretary Delhi State Harijan Cooperative Association Ltd whereby plot Nos.39 and 40 were certified to be allotted to defendants 2 and 3 respectively against payment of Rs.1,000/- each by them as also Khasra Girdawari and Aksh Sijri (at pages 47 to 50) showing that land of Khasra No.65 was recorded in the name of Delhi State Harijan Cooperative Society Ltd as owner thereof. Needless to repeat that in the written statement filed by defendant No.1 it is alleged that said receipts dated 1st October 1972 and certificates dated 1st February 1980 have been fabricated by the plaintiff and defendants 2 to 4 in collusion with the Secretary of aforesaid Association. It is common case of the parties that aforesaid Suit No.365/96 filed by defendant No.1 in this case against defendants 2,3,4 and 5 in this suit, was disposed of by an Additional District Judge by the judgment dated 8th March 2000. Before adverting to that judgment the findings whereof have bearing in this case, it may be mentioned that application filed under Order 9 Rule 7 CPC by defendant No.4 who was third time proceeded ex-parte vide order dated 14th July 1998, was dismissed by the order dated 19th April 1999; another application filed thereafter by him under Order 9 Rule 9 seeking restoration of said application also came to be dismissed by the order dated 29th July 1999 as is manifest from the discussion made in Para 6 of the judgment dated 8th March 2000. Photostat copies of the application filed under Order 1 Rule 10(2) read with section 151 CPC seeking impleadment by the plaintiff as a defendant as also the order dated 6th November 1999 dismissing that application, are placed on Part II file. Said application bears the date of 5th August 1999. Perusal of said order dated 6th November 1999 indicates that aforesaid Suit No.365/96 was ripe for final argument at the time the application was dismissed. Obviously, aforesaid application seeking impleadment was filed immediately after the application filed by defendant No.4 seeking restoration of application under Order 9 Rule 7 CPC was dismissed by the order dated 29th July 1999. So, prima facie there appears to be grain of truth in the allegation made by defendant No.1 in written statement that plaintiff had full knowledge about the pendency of said Suit No.365/96 and he secretly watched the proceedings in the suit before filing application seeking his impleadment as a defendant.

11. From the copy of judgment in Suit No.365/96 it may be noticed that stand taken by defendant No.4 in the written statement was that there is an agreement of sale in his favor of the suit property for a sum of Rs.18 lakhs. He denied of having unauthorisedly occupied portion shown in red in the site plan. Further, case set up by defendants 2 and 3 in their written statement filed in said suit was that the portion shown in red in site plan was part of property No.39 and 40 which was in their possession for the last more than 25 years and under the agreement to sell dated 22nd December 1995 they sold the said property to defendant No.4 and also delivered physical possession thereof, to him. Out of 8 issues framed in the suit, only findings, recorded on issues 2 and 6 are relevant for deciding the application under disposal. Said issues 2 and 6 read thus:-

"2. Whether the defendants No.1 and 2 forcibly and illegally occupied the portion of plot No.35 of the plaintiff as shown red in site plan Annexure A in January 1984 ?

6. Whether there is any illegal encroachment in the service lane and if so, what remedy ?"

12. Both these issues were taken together for discussion and after appreciating the evidence led in the suit, specific finding was recorded that portion shown in red in the site plan falls in service lane and defendant No.1 (plaintiff in above said suit) to the extent of 5' in length and defendants 2 to 4 (defendants 1 to 3 in said suit) on remaining portion thereof, had made encroachments. Accordingly, by decree of mandatory injunction they were directed to remove unauthorised construction made in service lane of 15' right up to the school boundary falling at the end of plot No.33 and remove iron gate and restore the service lane. Present suit has been instituted on pleas identical to those taken by defendant No.4 as also defendants 2 and 3 in their written statements filed in said Suit No.365/96. Para 6 of the said judgment dated 8th March, 2000 notices that on 19th & 20th March, 1998 on which dates defendant No.1's evidence was recorded, the defendant No.4 had participated in proceedings. Findings to the said effect cannot be said to have been recorded at the back of alleged owners though not all of the suit property. In my view, the plaintiff has not prima facie made out case for issue of ad interim injunction prayed for on the strength of documents to which my attention had been drawn nor balance of convenience lies in his favor as suit property is constructed on public land. Application thus deserves to be dismissed.

13. Consequently, the application is dismissed.