Shri Lalan Parshad vs Municipal Corporation Of Delhi ...
2001 Latest Caselaw 1273 Del

ORDER

V.S. Aggarwal, J.

1. The present suit has been filed by Lalan Parshad (hereinafter described as "the plaintiff") seeking permanent injunction to restrain the defendants from interfering with the peaceful possession and occupation of the plaintiff over property bearing Khasra No. 249, Village Khichri Pur, Delhi, where the plaintiff is carrying on the business in the name and style of M/s. Gupta Building Material Suppliers".

2. The facts alleged are that plaintiff is the owner in possession of property measuring 616 sq. yds. forming part of Khasra No. 249, referred to above. He had purchased the same from the previous owners Narender Kumar and Anil Kumar vide agreement to sell dated 8.3.2000 followed by General Power of Attorney and a Will, executed by Narender Kumar and Anil Kumar. At the time of purchase of the property, the same was encircled by a boundary wall about seven feet in height with a gate fixed therein and a room had also been constructed. The possession of the entire premises had been handed over to the plaintiff. The open space is being used by the plaintiff for storage of building material. It is alleged that the officials of the defendants had come and threatened to disturb the possession of the plaintiff over the property in question. To restrain the defendants from doing so, I.A. No. 5991/2000 has been filed for seeking an ad interim injunction in terms, referred to above. By virtue of the present order, the said I.A. No. 5991/2001 is proposed to be disposed.

3. In the written statement filed, the contest has been offered by the Municipal Corporation of Delhi. It has been asserted that the agreement to sell does not confer any right, title or interest in the property. The plaintiff in the guise of the present suit, is attempting to grab the suit land, which had been acquired vide Award No. 28-B/70-71. The documents filed by the plaintiff, namely, the power of attorney, Will and the agreement to sell were stated to be not genuine. It is denied that the plaintiff is the owner of the property in question.

4. A separate written statement has been filed by defendant No. 2. Almost similar pleas, as those of the Municipal Corporation of Delhi, have been repeated. However, it was pointed that at the time when the civil suit was filed, no construction of any kind existed in the property. This court, on 5.7.2000, had directed the status quo to be maintained. After that date, the plaintiff tried to make a construction in the suit land. The site was inspected by the Deputy Director (EZ) along with the Zonal Staff. At the time of inspection on 16.8.2000, it was found inside the boundary wall of the plot a heap of sand and some loose bricks. There was nothing to indicate that the sale and purchase of building material was being carried out from the said property. it was only on the evening of 21.8.2000 that Zonal Deputy Director found that someone had started stocking building material inside the plot. The Deputy Director (EZ) again visited the spot on 22.8.2000 and took eight photographs. The plaintiff had put building material in violation of the status quo order passed by the Court. It is denied that the plaintiff has no right, title or interest to be in possession of the property.

5. The claim of the plaintiff is based on the power of attorney, Will and the agreement of sale, purported to have been executed by the previous owners in his favor. Plaintiff states that the previous owners of the said property were Narender Kumar and Anil Kumar. Even if what is being alleged by the plaintiff is accepted, the agreement of sale or the power of attorney will not confer any such right in favor of the plaintiff to claim that plaintiff is the owner of the property. Same had been the finding of this Court in the case of IMTIAZ ALI versus NASIM AHMED . In other words when the plaintiff alleges that he has become the owner of the property, it will not be correct. At best, he can seek injunction if he establishes all the ingredients for basis of his possession over the property.

6. Learned counsel for the plaintiff asserted that possession of the plaintiff over the suit property is admitted and in this connection, reference has been made to the written statement that has been filed.

7. Indeed, perusal of the written statement reveals that the possession is admitted but plaintiff is described as an encroacher. It is in this back drop that one has to see as to whether the plaintiff establishes his settled possession over the property in question and if he has come to the court with clean hands to insist that ad interim injunction should be granted to him.

8. On behalf of the plaintiff, reliance has strongly been placed on the of the Supreme Court in the case of RAM RATTAN AND OTHERS versus STATE OF UTTAR PRADESH . The Supreme Court, in the cited case, held that if a trespasser is successful in accomplishing his possession, then he should be only dispossessed in accordance with law. The precise observations of the court are:

It is well settled that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing, and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law.

9. In identical terms is the later decision of the Supreme Court, rendered in the case of KRISHNA RAM MAHALE versus MRS. SHOBHA VENKAT RAO . Once again, relying upon the decision in the case of Ram Rattan & Others versus State of U.P., it is held:

In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law. In the present case, we may point out that there was no question of the plaintiff entering upon the premises as a trespasser at all, as she had entered into the possession of the restaurant business and the premises where it was conducted as a licensee and in due course of law. Thus, defendant No. 3 was not entitled to dispossess the plaintiff unlawfully and behind her back as has been done by him in the present case.

But these decisions indeed would only apply where a person is in settled possession. Law will not come to the rescue of an encroacher. If there is an encroachment on the premises, indeed, the equity will not be in favor of such a person to insist that he may be granted an ad interim injunction. One gets fortified in this regard from the findings in the case of RAJINDER KAKKAR & ORS. versus DELHI DEVELOPMENT AUTHORITY 1994 (1) DELHI APEX DECISIONS 432 . This Court held that when there is an encroachment on public land, he would not be entitled to any relief in the form of an injunction even with respect to the demolition.

10. In the present case in hand, the defendants have placed on record photographs that had been taken on 16.8.2000. It prima-facie shows that at the relevant time, there was hardly any structure that had been set up in the said property. The photographs that followed, namely of 22.8.2000 clearly reveal that the structures had been set up at the said site, followed by some other material for construction. This solely supports the defendants' version that the plaintiff had set up the said structure and thereafter started running the alleged business. There is no ground to discredit the said documents. Some of the bills that have been produced by the plaintiff would not prima facie establish his settled possession on to say that he is conducting business at the said premises for long time. Most of the bills are of recent past and in no event would connect that the business was being transacted from the said premises. Merely because on certain bills the address has been recorded as of 249, Khichri Pur, for purposes of the present order will not imply that the material even was supplied from the same place. The design made to encroach upon the land in this manner must be frustrated. This fact is negatived from the photographs of the defendants, which have been referred to above.

11. Otherwise also, the plaintiff has recently purchased and set up a structure, as noted above. He can not be taken to be in settled possession of the premises. It appears that this is all a tailor made version of the plaintiff. This is apparent from the deed of agreement of 8.3.2000. While the agreement is for 616 sq. yds. of land. It is only an agreement to sale. Still it has been mentioned that it is being sold along with the building material business rights. It is not shown that the earlier perspective vendor was also doing the same business.

12. Once it is concluded that earlier there was no construction and it has been set up recently, necessary consequence would be that the order passed by this court dated 5.7.2000 directing the parties to maintain status quo, prima-facie must be said to have been violated. The plaintiff in violation thereto has set up the structure. In that view of the matter a person who has violated the injunction order, so passed by the court, to his advantage would not be entitled to the discretionary relief.

13. As a consequence of the reasons given above, it must be held that the plaintiff is not entitled to the ad interim injunction. Accordingly, the above said I.A. is dismissed.

Suit No. 1205/2000

Documents, if any, be fined within four weeks.

14. Put up for admission/denial before the Joint Registrar (O) on 5.12.2001.