Sh. Jagdish Prasad And Sh. Mohan ... vs Delhi Development Authority And ...
2007 Latest Caselaw 540 Del

JUDGMENT

J.M. Malik, J.

1. The core issue involved in this case is whether the plaintiffs/appellants, who are in possession of property No. E-424 and E-425, Raghubir Nagar, New Delhi i.e. public land, but have no title, right or interest are entitled to permanent injunction about dispossession from the said property against its true owner? Their case is this. Both the appellants are real brothers. They have been living in the above said property along with their father for the last more than 31 years. The appellants had constructed a temple in 1960. They contended that they had become the owners of the suit property by adverse possession. The respondents posed threats to the appellants to evict them from the suit property in August, 1991. Consequently, they filed the present suit for permanent injunction restraining the defendants/respondents from dispossessing/demolishing the suit property bearing No. E-424-425, Raghubir Nagar, New Delhi.

2. The defense set out by the DDA in its written statement is this.

Plaintiffs/appellants are trespassers on plot No. E-424 measuring 25 sq. yards which stands in the name of Shri Ram Lal, S/o Shri Faqir Chand and plot No. E-425 is lying vacant and has been allotted to nobody. It was also pointed out that electric connection or ration card do not confer any title on the appellants with respect to the suit land.

3. The property in dispute previously vested with DDA, which was later transferred to MCD. Slum and JJ Department, MCD was subsequently arrayed as a party in this case. The MCD (Slum and JJ Department) has defended the present case. It is averred that the present suit is barred by the provisions of Public Premises (Eviction of Unauthorised Occupants) Act. It is explained that proceedings were initiated against Sh. Richpal Singh, father of the appellants by the Estate Officer, eviction order was passed by him under Section 5(1) of PP Act and the plot had been got vacated from Sh. Richpal Singh. Thereafter, plot No. E-424 was allotted to one Smt. Shakuntla and plot No. E425 was allotted to Smt. Bithi. It is alleged that the appellants are encroachers on the plot in question.

4. I have heard counsel for the appellants. Learned Counsel for the appellants vehemently argued that appellants are in possession of the suit property since 1960. However, he did not pick up a conflict with the findings given by the courts below that appellants were able to prove that they were in possession of the suit property since 1987. Learned Counsel for the appellants conceded that appellants are not in possession of documents pertaining to the year 1960 to 1987. He pointed out that the appellants have lost those documents. He also admitted that appellants are not in possession of allotment letter. He opined that appellants are poor people, they are not in possession of the record, consequently, it is the duty of the Government to produce the entire record. He pointed out that the appellants are not trespassers. He argued that appellants have settled possession and have better title than MCD and DDA or other allottees named by the respondents. He contended that under these circumstances, their possession should be protected.

5. Respondent/defendant, MCD (Slum and JJ Department) has claimed that the suit property vests with Slum and JJ Department and the allotment letter with respect to the plots are to be issued by the concerned authority. However, no evidence was led over this point. The issue framed was "whether suit property belongs to Union of India and has been placed at the disposal of DDA?" Due to lack of evidence, this issue was decided against the defendant. Learned Counsel for the appellants argued that since this issue was decided against the appellants, therefore, it itself goes to raise a substantial question of law in this appeal.

6. These arguments have left no impression upon the Court. Evidence has to be read as a whole, not in vacua, to the benefit of one and to the detriment of the other. At best, it stands proved that the appellants are in the possession of the plot in dispute since 1987. They filed the suit in the year 1991. They failed to prove that they are in possession of the suit property by adverse possession.

7. I have perused the statements of Shri Mohan Lal, PW-1, Sh. Bansi Lal, PW-2 and Shri Sugriv, PW-3. Sh. Mohan LaL, plaintiff/appellant PW-1 stated that his father and brothers are in possession of disputed property. They were removed from Jhandewalan about 30 years back. He admitted that there is no allotment letter in their favor. He stated that they are in possession of a license. However, that license did not see the light of the day. Sh. Bansi Lal, PW-2 stated that he is living in these premises for the last 30 years along with the appellants. He deposed that premises along with temple were demolished by the DDA in the year 1992 approximately but the possession is still with the appellants. In his cross-examination, this witness clearly, specifically and unequivocally stated that he knew that these plots were under the control of JJ Department and MCD. Sh. Sugriv, PW-3 stated that he is living in the said premises for the last 30 years along with the appellants. He unambiguously stated that he knew that these plots are under the control of DDA and now with the transfer to JJ Department, these are under the control of JJ Department and MCD.

8. Under these circumstances, this portion of the respondents' case stands admitted. Admission of this significant fact comes out from the horse's mouth itself. Consequently, it was not necessary for the respondents to prove an admitted fact. Moreover, their statements are fully supported by S.C. Satpal Singh, UDC, JJ and Slum Department, DW-1. He testified that the plots in question were never allotted in favor of any person and the appellants are in possession of the plots unauthorizedly. He stated that plots in question are now allotted to Smt. Shakuntla Devi and Smt. Bithi, respectively. Although, he did not produce the relevant record, which he should have, yet, in view of the above said admission supported by his testimony, it stands clearly proved that JJ and Slum Department is the actual owner in control of the premises in dispute. The appellants are encroachers. The appellants appear to be influential persons and the respondents dare not produce the record against them.

9. In Rajinder Kakkar and Ors. v. Delhi Development Authority 1994 1 AD (Delhi) 432, it was held:

17. Time has now come where the society and the law abiding citizens are being held to ransom by persons who have no respect for law. The wheels of justice grind slowly and the violators of law are seeking to take advantage of the laws delays. That is why they insist on the letter of the law being complied with by the respondents while, at the same time, showing their complete contempt for the laws themselves. Should there not be a change in the judicial approach or thinking when dealing with such problems which have increased manifold in recent years viz., large scale encroachment on public land and unauthorized construction thereon, most of which could not have taken place without such encroachers getting blessings or tacit approval from the powers that be including the Municipal or the local employees. Should the Courts give protection to violators of the law? The answer in our opinion must be in the negative. Time has now come when the Courts have to be satisfied, before they interfere with the action taken or proposed to be taken by the governmental authorities qua removal of encroachment or sealing or demolishing unauthorized construction specially, when such construction, like the present, is commercial in nature.

18. Before action for demolition or removal of encroachment is taken the Court must be satisfied, prima facie, on the basis of some document or other tangible evidence that the petitioners or the applicants have a legal title to the property or a right to remain in possession thereof. Where a person is an encroacher and never had any right to legal possession of public land, the Courts should not grant any injunction or relief which will have the result of permitting or protecting the continued illegal occupation of public land. There may be a case where at a point of time the possession or occupation may have been valid under a lease or a grant and which lease or grant may have subsequently been wrongfully terminated and the termination challenged, such a case may, however, fall in a different category where the question of balance of convenience will have to be carefully examined specially when the action of termination of lease or grant is seriously challenged. But, in case like the present, where at no point of time the petitioners had any valid right, title or interest to the property the Court ought not to grant any relief to such a petitioner even if there has been any procedural irregularity by the respondent while seeking to get back possession of public land.

10. In Premji Ratnasey Shah and Ors. v. Union of India and Ors. JT 1994 (6) S.C. 585, it was held:

5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favor of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favor of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identify of the land should not be an excuse of claim injunction against true owner.

11. In Mahadeo Savlaram Shelke and Ors. v. The Puna Municipal Corporation and Anr. , it was held that it is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession. See also Tejpal Shastri and Ors. v. Union of India and Ors. 1977 (IV) Delhi 460.

12. No fault can be found with the judgments of the courts below. The appeal is devoid of any merit and is dismissed at the admission stage. Trial Court record and copy of this order be sent to the trial court forthwith.

CM 2822/2007

In view of the dismissal of the appeal, no further orders are required to be passed in the application, the application is also dismissed.