Delhi High Court
Sh. Phool Singh vs Shri Rajinder Singh & Ors. on 11 September, 2009
Author: V.B.Gupta
* HIGH COURT OF DELHI : NEW DELHI
FAO No.47/2009 & CM No. 2539/2009
% Judgment reserved on: 26th August, 2009
Judgment delivered on: 11th September, 2009
Sh. Phool Singh,
S/o Shri Pema,
R/o Khasra No. 50/01,
Village Himayun Pur,
New Delhi-29
....Appellant
Through: Mr. Naresh K. Thanai
with Mr. Puneet Sharma,
Advs.
Versus
(1) Sh. Rajinder Singh
S/o Late Sh. Khem Chand
(2) Sh. Sat Prakash
S/o Late Sh. Khem Chand
(3) Sh. Satbir Singh
S/o Late Sh. Khem Chand
(4) Smt. Vimla
W/o Chand Ram
D/o Late Sh. Khem Chand.
(5) Smt. Kamla
W/o Anoop Singh
D/o Late Sh. Khem Chand.
(6) Smt. Santosh
FAO No.47/2009 Page 1 of 16
W/o Satbir
D/o Late Sh. Khem Chand.
All R/o 60-B, Himayun Pur,
New Delhi-110029.
(7) Smt. Jeeto
W/o Late Sh. Bhoru
(8) Shri Sher Singh
S/o Late Sh. Bhoru
(9) Sh. Sri Bhagwan
S/o Late Sh. Bhoru
(10) Sh. Jai Bhagwan
S/o Late Sh. Bhoru
(11) Smt. Shanti
W/o Shri Wazir
D/o Late Shri Bhoru
(12) Smt. Om Wati,
W/o Raj Kumar
D/o Late Shri Bhoru
All R/o 60-B, Himayun Pur,
Delhi-29
(13) Sh. Dalip Kumar
S/o Late Sh. Hukum Chand.
(14) Smt. Nirmla Devi,
W/o Shri Pratap Singh Chikara
D/o Late Shri Hukum Chand.
(15) Smt. Krishna,
W/o Sh. Sumer Singh Chikara
D/o Late Shri Hukum Chand.
FAO No.47/2009 Page 2 of 16
(16) Smt. Bhagwati,
W/o Shri Mahinder
D/o Late Shri Hukum Chand
All R/o 60-B, Himayun Pur,
New Delhi-110029.
(17) Smt. Roshni,
Wd/o Late Sh. Darshan.
(18) Sh. Jagbir,
S/o Late Sh. Darshan.
(19) Sh. Kuldeep,
S/o Late Sh. Darshan.
(20) Sh. Balraj,
S/o Late Sh. Darshan.
(21) Smt. Savita,
W/o Sh. Ram Avtar
D/o Late Shri Darshan.
(22) Miss Suman (Minor)
(aged about 15 years)
D/o Late Sh. Darshan.
Through her mother, Smt. Roshni
(the Pltf. No. 17) as her next friend.
All R/o 60-B, Himayun Pur,
New Delhi-110029.
(23) Smt. Ram Kumari,
D/o Late Shri Chander Bhan.
(24) Sh. Chattar Singh,
D/o Late Shri Chander Bhan.
(25) Smt. Laxmi @ Babli,
FAO No.47/2009 Page 3 of 16
W/o Shri Jaipal,
D/o Late Shri Chander Bhan.
All R/o 60-B, Himayun Pur,
New Delhi-110029.
(26) Sh. Jagdev,
S/o Shri Juglal,
(deceased through L. R.‟s)
a. Smt. Rati Devi,
W/o Sh. Jagdev
b. Smt. Santosh,
Wd./o Late Sh. Raj Kumar.
c. Sh. Jai Karan,
S/o Raj Kumar
All R/o 72, Himayun Pur,
New Delhi-110029.
(27) Smt. Chhoto
Wd./o Late Shri Balbir Singh
(28) Sh. Narain Singh
S/o Late Shri Balbir Singh.
(29) Smt. Shushma
W/o Late Shri Rambir Singh
D/o late Shri Balbir Singh
(30) Smt. Seema
W/o Late Shri Rakesh
D/o late Shri Balbir Singh
(31) Sh. Rajinder
S/o Late Shri Khuba
(32) Smt. Panmeshwari
S/o Late Shri Khuba
FAO No.47/2009 Page 4 of 16
(33) Smt. Phool Kaur
S/o Late Shri Khuba
All R/o 77, Himayun Pur,
New Delhi-110029.
(34) Smt. Dhan Kaur @ Dhanno
Wd/o Late Shri Balram @ Balbir Singh
(35) Sh. Jai Singh
S/o Late Shri Balram @ Balbir Singh
(36) Sh. Subhash
S/o Late Shri Balram @ Balbir Singh
(37) Smt. Roshni
W/o Sh. Ramphal
D/o Late Shri Balram @ Balbir Singh
All R/o 77, Himayun Pur,
New Delhi-110029.
(38) Smt. Nirmla Devi
Wd./o Late Sh. Ram Kishan
(39) Sh. Vikram Singh
S/o Late Sh. Ram Kishan
(40) Sh. Virender
S/o Late Sh. Ram Kishan
(41) Smt. Savita
D/o Late Sh. Ram Kishan
All R/o 77-B, Himayun Pur,
New Delhi-110029.
(42) Sh. Mukhtiar Singh
FAO No.47/2009 Page 5 of 16
S/o Late Sh. Ganga Dass
(43) Sh. Lakhpat Singh
S/o Late Sh. Jai Ram
(44) Sh. Chatar Singh @ Chatre
S/o Late Sh. Jai Ram
(45) Smt. Risalo
Wd./o Late Sh. Jai Ram
(46) Smt. Dhanpati
D/o Late Sh. Jai Ram
(47) Smt. Roshani
D/o Late Sh. Om Prakash
(48) Smt. Risalo
D/o Late Sh. Om Prakash
All R/o Village Himayun Pur,
New Delhi-110029.
(49) Shri Tejhbir Singh @ Teju
S/o Late Sh. Khazan Singh
(deceased through L. R. „s)
(a) Smt . Ram Kaur
W/o Sh. Khazan Singh
(b) Smt. Manoranjana
W/o Sh. Tejbir Singh
(c) Sh. Amit
S/o Sh. Tejbir Singh
(d) Sh. Ashish
S/o Sh. Tejbir Singh
(e) Sh. Aman
FAO No.47/2009 Page 6 of 16
S/o Sh. Tejbir Singh
All R/o Himayun Pur,
New Delhi-110029.
....Respondents.
Through: Mr. S.S. Panwar with
Mr. Sunil Dutt, Advs.
Coram:
HON'BLE MR. JUSTICE V.B. GUPTA
1. Whether the Reporters of local papers may
be allowed to see the judgment? Yes
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported
in the Digest? Yes
V.B.Gupta, J.
This appeal is against order dated 3rd February, 2009
passed by Additional District Judge Delhi, vide which
application under Order 39 Rule 1 and 2 Code of Civil
Procedure (for short as „Code‟) of respondents was allowed.
2. Brief facts as alleged are that respondents are joint
owners of suit land, being successor in interest of their
respective ancestors, who were joint owners and in
possession of the suit land. Land of Khasra No. 50 min.
measuring 21 Bighas and 13 Biswas was owned and
possessed by proprietors of Shamlat Thok of Village
Himayun Pur, which was partitioned. Land measuring 2
Biswas and 16 Bighas was given a separate Khasra No.
50/1 and fell to the shares of ancestors of respondents.
3. This land was acquired by Government of India for
public purpose and award in respect of land measuring 2
Bighas and 3 Biswas, out of 2 Bighas and 16 Biswas was
made in faovur of respondents on 31.1.1991. Award in
respect of remaining 13 Biswas of land (suit land), could
not be made because, appellant filed a civil writ petition in
this Court. That writ petition was decided on 24.2.1999,
whereby acquisition proceedings with regard to suit land
were quashed. It is alleged that after decision of writ
petition, appellant attempted to illegally grab the suit land.
In first week of January, 2003, he forcibly encroached upon
suit land and illegally raised constructions.
4. Respondents filed suit for possession, damages and
injunction against appellant restraining him from
alienating the suit land and also from raising any further
construction.
5. In written statement, appellant has alleged that
respondents are neither the co-owners nor they are in
possession of suit land. It is the appellant, who is in
possession of suit land for last over 60 years. Fore-fathers
of appellant were also in possession of suit land thereafter,
appellant gained the possession. Appellant has been in
open, hostile and uninterrupted possession of suit land and
has become owner by adverse possession.
6. It is also alleged that prior to institution of this suit,
respondents and/or their predecessors in interest, filed suit
for injunction in February 1996. Their application under
order 39 Rules 1 and 2 of the Code, seeking relief for
injunction restraining appellant from raising construction
was dismissed, on 9th October, 1966 by the Civil Judge.
Appeal was also dismissed and that suit is still pending
adjudication. Appellant being owner of suit land, is within
his right to raise the construction.
7. It is submitted by learned counsel for appellant that
appellant is in settled position and has become owner by
way of adverse possession. Being in possession, he has got
a prima-facie case and balance of convenience lies in his
favour and it is appellant, who shall suffer irreparable loss
and injury if injunction is granted in favour of respondent.
8. It is also contended that earlier there was litigation
between the parties and as per report of Local
Commissioner, (copy of which has been placed on record at
page-62 of paper book) appellant is in actual physical
possession. Under these circumstances, impugned order
passed by trial court is liable to be set aside.
9. In support of its contentions, learned counsel for
appellant cited various judgments; namely Salwan
Education Trust vs. Lt. Governor, 1986 Rajdhani Law
Reporter (NSC) 2, wherein it is observed;
"If a defendant is in possession of land
on date of suit, he cannot be restrained
from putting up construction on the
same."
10. In Vishnu Bhagwan Mittal vs. Renu Mehta, 1996
III AD (DELHI) 575, it was held;
"When defendant was in possession of
the property in question as on the date
when the construction had
commenced, there is no reason as to
why at the instance of the plaintiff
there should be any restriction upon
defendant in construction of the
property."
11. To similar effect is Vijay Kumar vs. K.N. Chopra &
Ors., 84 (2000) DLT 700.
12. In R.K. Aneja vs. DDA & Ors. 47 (1992) DLT 649 ,
this Court observed;
"That it is a well established principle
of jurisprudence which needs no
reiteration that once a matter has been
heard and finally disposed of once thus
got a quietus at the hands of the
Competent Court, should not be
allowed to be revived again."
13. On other hand, learned counsel for respondents
submitted that respondents are recorded owner of suit
property while appellant is an encroacher. Prima facie
case and balance of convenience is in favour of
respondents. It is respondents who would suffer
irreparable loss, if injunction is not granted and there is no
illegality or infirmity in the impugned order.
14. In support, learned counsel referred a decision, K.V.
Narayan v. S. Sharana Gowda and Anr. AIR 1986
Karnataka 77, wherein it was observed;
"A trespasser in possession, is not
entitled to a temporary injunction as
against a true owner."
15. In M/s. G.M. Modi Hospital and Research Centre
Medical Science v. Sh. Shankar Singh Bhandari and
Ors. AIR 1996 Delhi 1, this Court observed;
"It is not necessary that every person
in possession of property is entitled to
injunction. Courts are bound to come
to some tentative conclusion whether
possession is legal."
16. It is an admitted case of both parties, that earlier
predecessors-in-interest of respondents, Khem Chand and
Ors., filed suit for permanent injunction against present
appellant. In that suit, application under Order 39 Rule 1
& 2 of Code was filed, seeking relief of injunction
restraining the appellant from raising construction. That
application was dismissed by Civil Judge, vide order dated
9th October, 1996. Relevant portion of which reads as
under;
"I am of the view that the plaintiffs are
not entitled for discretionary relief by
way of temporary injunction as plaintiff
have suppressed the material fact from
the Court and has not come with clean
hands and also on the ground that
prima facie defendant is in possession
of the suit property and plaintiff are
not in possession of the suit property
and they are not entitled to the relief
of injunction without claiming recovery
of possession. Hence, the application
of the plaintiffs U/O 39 Rule 1 & 2 is
hereby rejected."
17. In the present suit, allegations against appellant are
that, he illegally and forcibly encroached upon suit land in
first week of January, 2003 and started raising
unauthorized construction. Along with it, respondents filed
an application under Order 39 Rule 1 & 2 of the Code
(dated 20th February, 2006) which was disposed of, vide
order dated 10th July, 2007 by Additional District Judge.
Relevant portion of the order states;
"The plaintiff has prayed the relief in
application under disposal that the
defendants be restrained from selling,
transferring, alienating or creating any
third party interest in respect of the
land in question measuring 13 Biswas
(650 sq.yards approximately) falling in
Khasra No.50/1 min. situated within
the Abadi of Village Himayun Pur,
Tehsil, Hauz Khas, New Delhi as
shown in red and yellow in the site
plan annexed with the plaint. The said
application is contested by defendants.
Sh. Naresh Kumar, Advocate stated
that the defendants are in possession
of the property for the last more than
60 years.
During the course of arguments,
Sh. Naresh Kumar, Advocate, counsel
for the defendant in his fairness stated
that the defendant has no intention to
sell the property in question till the
disposal of the suit. However, the
defendant has let out the portion of the
property in question to different
tenants and the defendant may let out
or re-let out the portion of the property
as per requirement. However, Sh.
Naresh Kumar, Advocate stated that
the defendant has no intention to sell
the property in question in favour of
any other person till the disposal of the
suit. Sh. Panwar in his fairness stated
that when the defendant has stated
that he has no intention to sell the
property in question till the disposal of
the suit in that case, case be
proceeded on trial.
In these circumstances, the application
under Order XXXIX Rule 1 and 2 CPC
stands disposed of."
18. After dismissal of this application, respondent again
filed application under Order 39 Rule 1 & 2 of the Code
(dated 6th January, 2009) before trial court, praying that
defendant (present appellant) be restrained from raising
any further construction or making any addition or
alteration. In alternative, it was prayed that order dated
10th July, 2007, may be modified to the effect that
defendant (present appellant) be restrained from raising
further construction, addition and alteration.
19. Thus, it is apparent even from averments made by
respondents, that appellant is in possession of suit property
and respondents‟ earlier application for injunction filed in
1996 was dismissed. Similarly, in second application for
injunction, which was disposed of on 10th July, 2007, no
relief was granted to the respondents.
20. Supreme Court in Satyadhyan Ghosal & Ors. v.
Smt. Deorajin Debi & Anr., AIR 1960 SC 941, observed;
"When a matter - whether on a
question of fact or a question of law -
has been decided between two parties
in one suit or proceeding and the
decision is final, either because no
appeal was taken to a higher court or
because the appeal was dismissed, or
no appeal lies, neither party will be
allowed in a future suit or proceedings
between the same parties to canvass
the matter again."
21. Respondents earlier sought similar relief but the
same was not granted. It is also an admitted case of
respondents, that appellant is in possession of suit property
(whether it is legal or otherwise). Appellant being prima
facie in possession, cannot be restrained from carrying out
any construction or making any addition or alteration in his
property. Balance of convenience also lies in appellant‟s
favour and it is he, who will suffer irreparable loss, if he is
restrained from carrying out the construction.
22. Accordingly, present appeal is allowed and impugned
order of the trial court is set aside.
23. Parties shall bear their own costs.
24. Trial court record be sent back.
11th September, 2009 V.B.GUPTA, J.
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