Delhi High Court

Sh. P.K. Gupta vs Sh. D.N. Tyagi on 15 December, 2009

Author: Manmohan Singh

*            HIGH COURT OF DELHI : NEW DELHI

+             I.A. No. 8803/2009 in CS (OS) No. 1100/2008

     Sh. P.K. Gupta                                           ...Plaintiff
                        Through   : Mr. A.K. Bajpai, Adv.

                                  Versus

     Sh. D.N. Tyagi                                          ...Defendant
                        Through   : Mr. Hari with Mr. S.K. Tyagi,
                                    Advs.

Reserved on : November 27, 2009
Decided on : 15th December, 2009

Coram:

HON'BLE MR. JUSTICE MANMOHAN SINGH

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                                 No

2. To be referred to Reporter or not?                              No

3. Whether the judgment should be reported
   in the Digest?                                                  No

MANMOHAN SINGH, J.

1. By this order, I shall dispose of I.A. No. 8803/2009 filed by

the defendant under Order VII Rule 11 of the Code of Civil Procedure,

1908.

2. Brief facts of the case as per plaintiff are as follows. The

plaintiff purchased land measuring 4 Bighas, bearing Khasra no. 37/25/2

min. along with a nursery at Kaushik Enclave, Village Burari, Delhi

(hereinafter referred to as the „suit property‟) from its owners on 9th

September, 2005 by virtue of valid sale documents etc. and the plaintiff

has been in possession of the same since then.

3. According to the plaintiff, he also had 16 bighas of land along

side the suit property.

4. On 11th May, 1999 the plaintiff, having observed that the

defendant along with some other persons was unauthorisedly

encroaching the 16 Bighas, filed a suit for possession being suit no.

124/02/99 which was dismissed in default on 11th December, 2007,

restoration of which has been filed and is pending.

5. As per the plaintiff, on 6th May, 2008 and on 15th May, 2008

the defendant attempted to encroach upon the suit property again and the

plaintiff was unable to file a complaint against him as the police was

allegedly hand in glove with the defendant. The defendant has grabbed

16 Bighas for which the above-mentioned suit is pending and now the

plaintiff fears that the other 4 Bighas will also be snatched from him.

The defendant threatened the plaintiff that he would take the rest of the

property also therefore, the plaintiff filed the present suit to restrain the

defendant, his agents, employees etc. from dispossessing the plaintiff

from the suit property and from disturbing or interfering with the

plaintiff‟s possession of the same.

6. In his written statement, the defendant has submitted that the

plaintiff has filed the present suit without any cause of action against the

defendant. The defendant has submitted that the plaintiff has filed two

complaints against the defendant, one under Sections 420/467/468/506

and another under Sections 420/468/471/120-B of the Indian Penal

Code, both of which were dismissed by the MMs concerned on 20 th

May, 2004 and 5th January, 2002 respectively.

7. It is the defendant‟s submission that the plaintiff has some

enmity with the defendant and is therefore filing frivolous and baseless

cases and complaints against him.

8. The defendant has submitted that in case no. 1-A/RA/2000

filed by the plaintiff in the Revenue Court against a number of

defendants including the defendant herein, an order was passed on 21 st

May, 2005 wherein one of the defendants, Sh. Dharam Pal Tyagi had

claimed ownership of the 4 bighas of land which constitute the suit

property and the plaintiff never challenged the said ownership.

9. In the present application for rejection of the plaint, the

defendant has reiterated that the suit has been filed without a cause of

action and ought to be dismissed with heavy costs.

10. It is the defendant‟s submission that the present suit has been

filed only to harass him as the plaintiff has some ulterior motive for

filing the same, which the defendant cannot comprehend as the

defendant has no connection what so ever with the suit property. The

defendant is a stranger to the suit and the fate of the disputed property

which is the subject matter of the present suit has already been

determined in the earlier proceedings wherein the present plaintiff and

defendant were parties.

11. It is the defendant‟s submission that after he filed the written

statement, the plaintiff filed a complaint against him in the court of the

CMM, Delhi alleging that the former had trespassed into the suit

property and thereafter filed the replication, nine months after the written

statement was filed, attaching a copy of the complaint.

12. The defendant has also submitted that from the photocopies

filed by the plaintiff, it appears that the documents are forged and

fabricated and the allegation of ownership of the plaintiff as regards the

suit property is doubtful. The plaintiff has no locus standi to file the

present suit as he claims to be the Attorney of one Sh. Subhash Chand

Tyagi. However, neither the plaintiff nor Sh. Subhash Chand Tyagi is

the recorded owner of the suit property nor is there any registered sale

deed in their favour with respect to the same.

13. The present suit has been filed by the plaintiff in his own

name while claiming to be the attorney of Sh. Subhash Chand Tyagi,

without placing on record any authorization in this behalf. No evidence

in support of the plaintiff‟s averment that he is in possession of the suit

property has been filed. Further, the suit property is an agricultural land

and lies within the domain of the revenue court and admittedly, the

plaintiff is not the Bhumidar of the same and thus no injunction can be

granted to him in his status of a non-Bhumidar.

14. During the hearing of the present application, learned counsel

for the plaintiff made the statement that in case the defendant gives an

undertaking before this court not to interfere with the possession of the

parties or that the defendant has no interest in the property, then the

plaintiff is prepared to withdraw the present suit.

15. The learned counsel for the defendant on the other hand has

refused to make any statement on the ground that since none of the

parties is the owner of the suit property, the question of making such a

statement does not arise. It has been argued that in the garb of the

statement required by the plaintiff, the plaintiff in fact wants to take

advantage of the same for an oblique motive and there is no reason for

the defendant to get involved in the same. Further, the question of

ownership has already been determined in the earlier proceeding being

case no. 1-A/RA/2000 filed by the plaintiff against various persons

wherein the defendant herein was defendant no. 2, which is evident from

the order dated 24th February, 2005 passed by the Court of the Revenue

Assistant/S.D.M. (Civil Lines) reproduced hereinbelow :

"After hearing both the Ld. Advocates and perusing the plaint, reply and record it is found that the plaintiff has no cause of action against defendant no. 2 who is occupying his 4 Biswa of land. The plaintiff failed to submit the site plan showing the exact boundaries of 16 Biswa if land for which he is claiming. Moreover, the plaintiff also mentioned in his plaint that defendant no. 2 purchased the land from defendant no. 1 but the defendant no. 2 as mentioned above purchased the land from the person other than the defendant no. 1.

The plaintiff thus failed to prove that defendant no. 2 has any concern with the land of the plaintiff or has purchased this land from defendant no. 1 and so failed to establish the cause of action against the defendant no. 2 is his plaint."

16. I agree with the submission of the learned counsel for the

defendant that the present suit filed by the plaintiff is wholly without any

cause of action and is also barred by law in view of the reasons stated in

the earlier para. The suit filed by the plaintiff is false and frivolous.

17. There is no evidence produced by the plaintiff in order to

show that he is in possession of the property in question and in such

case, the question of interference in his possession by the defendant does

not arise. Further, a bare perusal of the plaint and the replication shows

that there is blatant contradiction in the two documents in so far as in the

former, the plaintiff has contended that he is in possession of the suit

property and the defendant is interfering with the same and in the latter

he has contended that he is not in possession of the disputed property.