Surinder Singh vs Tilak Raj
2010 Latest Caselaw 3474 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                 Date of Judgment : 26.07.2010

+                   R.S.A.11/2009 & C.M.Appl.498/2009

SURINDER SINGH                                  ...........Appellant
                           Through:   Mr.Diwan Singh Chauhan,
                                      Advocate.

                      Versus

TILAK RAJ                                        ..........Respondent
                           Through:   Nemo.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?              Yes

     3. Whether the judgment should be reported in the Digest?
                                                            Yes

INDERMEET KAUR, J.(Oral)

1.      This second appeal is directed against the impugned

judgment dated 22.10.2007 endorsing the finding of the trial court

dated 19.3.2005 wherein the suit of the plaintiff/respondent Tilak

Raj for possession and damages had been decreed in his favour.

2.     This appeal has been preferred by the tenant/appellant. The

questions of law have been formulated on page 6 of the appeal. It

is submitted that the landlord/respondent i.e. Tilak Raj, even as per

his own case was the lessee of the lessor who is Delhi Development

Authority (DDA); DDA should have been impleaded as a party.

Further the conviction of the respondent Tilak Raj for the offence

punishable under Section 453 of the IPC was primarily the reason

for treating the appellant as a tress-passer which is an incorrect

appreciation of the legal proposition; judgment of the criminal

court is never binding on the civil court. Further the suit filed by

R.S.A. No.11/2009                                          Page 1 of 4
 the respondent for possession/simplicitor without asking for the

relief of a mandatory injunction seeking demolition of the

unauthorized structure on the suit property was also by itself not

maintainable; all these submissions have raised a substantial

question of law.

3.       Arguments have been heard.

4.       This was a suit filed by the plaintiff seeking recovery of plot

no.B-11/492, Raghbir Nagar, Najafgarh Road measuring 25 sq.yds

which had been allotted to him vide possession and allotment slip

no.2945 dated 12.1.1997 issued by the DDA at the rate of Rs.8/-

per month.      Plaintiff had constructed a boundary wall and gate

thereon and was in possession. In April, 1997, the defendant in his

absence had unauthorizedly and forcibly taken possession of the

suit property. In para 8 of the plaint it is stated that on this plot

the defendant had illegally raised an unauthorized construction i.e.

with temporary ACC sheets.             Prayer for possession of the

aforestated property along with mesne profit had been made.

5.       The trial judge had framed six issues; five witnesses on

behalf of the plaintiff and four witnesses on behalf of the defendant

had been examined. Trial judge had held that the record proved

that the plot had been allotted in favour of the plaintiff vide

possession slip ExPW-4/2 evidencing the allotment and the

possession in his favour.       DW-2/2 the order dated 20.06.1977 in

the property register of the Department evidenced that the name

of the defendant had only been recommended for allotment.

This document had been examined and appreciated by the trial

court.     The contrary stand of the defendant of the date of his

allotment;     coupled   with   the   documentary   evidence    i.e.   the

R.S.A. No.11/2009                                              Page 2 of 4
 allotment and possession slip in favour of the plaintiff had led the

trial court to discard the document Ex.DW-2/2.           Defendant was

held to be a tress-passer.

6.     The objection about non-joinder of the DDA was never taken

in the written statement.

7.     The trial judge had as another piece of evidence taken

support of the judgment of the criminal court Mark A wherein the

defendant (appellant herein) had been convicted for the offence

punishable under Section 453 of the IPC.          Categorical finding of

the trial judge was that it is a settled proposition that the judgment

of a criminal court is not binding on the civil court. Reference was

only made to this judgment to support his findings which were

otherwise arrived at on the basis of the oral and documentary

evidence adduced before the court.             Suit of the plaintiff was

accordingly decreed.

8.     Suit was for possession and mesne profits. Plaint had clearly

averred that after the unauthorized occupation of the plot, the

defendant had made an illegal structure therein.               Prayer for

possession did not have to be coupled with any other additional

prayer of a mandatory injunction. This submission of the counsel

for the appellant is bereft of any merit. The suit of the plaintiff was

adequately protected under Section 9 of the Code of Civil

Procedure.

9.     The findings of the trial court were endorsed by the appellate

court;    finding   of   both   the   courts     below   was    that    the

defendant/appellant was an unauthorized occupant. The grounds

of appeal as also the substantial question of law raised in the body

of the appeal do not raise any question of law much less any

R.S.A. No.11/2009                                               Page 3 of 4
 substantial question of law.

10.    This court is bound by the parameters as contained in

Section 100 of the Code of Civil Procedure. There is no merit in

the appeal. Appeal as also the pending application is dismissed.




                                         INDERMEET KAUR, J.

JULY 26, 2010 rb