Ishmali Devi And Ors. vs D.D.A. & Ors.
2012 Latest Caselaw 6179 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                     CS(OS) Nos.1075/2000 & 2171/2003

%                                                            15th October, 2012

1.

CS(OS) 1075/2000, IA Nos.4522/2004, 4952/2005, 7176/2006, 14406/2007, 11509/2008, 12078/2008, 4544/2009, 2782/2010, 8069/2010, 2935/2012, 117/2008, 156/2008, 161/2008 & 7223/2012

ISHMALI DEVI AND ORS. .... Plaintiffs Through: Mr.Kamal Mehta with Mr.Vijay Kumar, Advocates.

                            VERSUS
         D.D.A. & ORS.                       B+              ..... Defendant

                                   Through:       Ms.Shobhana Takiar, Advocate for
                                                  DDA.
                                                  Mr.B.V. Niren, Adv. for UOI.
                                                  Mr.Rajeev Sharma, Advocate for D-2.
                                                  Mr.Rahul Tomar for Mr.Vibhor Garg,
                                                  Adv. for AIIMS.

2.       CS(OS) 2171/2003, IA No.11736/2003

         SAJAMAL                                            ..... Plaintiff
                                   Through:       Mr.Kamal Mehta, Advocate.
                      VERSUS

         DDA & ANR.                                           ..... Defendants
                                   Through:       Ms.Shobhana Takiar, Advocate for
                                                  DDA.
                                                  Mr.B.V. Niren, Adv. for UOI.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?

 VALMIKI J. MEHTA, J (ORAL)

1. In CS(OS) No.1075/2000, the following are the prayer clauses in the

amended plaint :-

"(a) pass a decree of declaration in favour of the plaintiffs and against the defendants that the plaintiffs are the lawful owners and in lawful possession of the land measuring 300 Bighas situated in Khasra No.644/458 in Kila No.1 to 8 in Village Pilanji, Hassanpur, Revenue Estate of Village Arakhpur Bagh, Mochi.

(b) pass a decree in favour of the plaintiffs and against the defendants for permanent injunction, thereby restraining the defendants from interfering with the peaceful enjoyment and possession of the land forming part of khasra nos.644/458 Kila No.1 to 8, Village Pilanji, Hassanpur, situated in the Revenue Estate of Village Arakhpur Bagh Mochi, New Delhi.

(c) pass a decree in favour of the plaintiffs and against the defendants for a declaration that the proceedings before the defendant no.3 are null and void and without jurisdiction being proceeding nos.739/95, 740/95, 750/95 and 752/95; and

(d) pass a decree in favour of the plaintiffs and against the defendants for cost of the present proceedings;

(e) pass such other and further orders and/or directions as this Hon‟ble Court may be deemed fit and proper in the facts and circumstances of the case.

2. In CS(OS) No.2171/2003, the following are the prayer clauses :-

(a) A decree of declaration to the effect that notices of eviction issued under Section 4(1) of the P.P. Act dated 18.9.2003 by the Estate Officer-I of DDA along with similar notice of previous proceedings No.EV/ABM/7/80 dated 4.4.1984 along with the proceedings continued pursuant thereto are illegal, mala fide and void and the plaintiff is the owner of the land mentioned in the schedule of the plaint and shown in the site plan annexed to the plaint.

(b) A decree of declaration in favour of the plaintiff and against the defendants that the land in suit was never acquired by Award No.28 of 1912 nor it ever could vest by virtue of the said Award or otherwise in the Union of India, L & DO Department or Delhi Improvement Trust or DDA and/or by Nazul Agreement dated 25.11.1937 and jamabandis relied upon by the DDA.

c) A decree of permanent injunction in favour of the plaintiff and against the defendants restraining the defendants from dispossessing and/or from alleging dispossession of the plaintiff from the suit land as described in the Site Plan attached to the plaint.

d) A decree of permanent injunction in favour of the plaintiff and against the defendants restraining the defendants from alienating transferring, allotting, and/or creating any third party interest and/or from dealing with the suit land in any manner whatsoever.

e) Such other and further orders and/or directions as this Hon‟ble Court may be deemed fit and proper in the facts and circumstances of the case."

3. The plaintiffs in both the suits claim ownership/title to the subject

lands. The defendants No.1 and 2 being the Delhi Development Authority and the

Land and Development Officer, dispute this. The defendants No.1 and 2 claim that

the plaintiffs are in unauthorized occupation of Government land. Indubitably, if

the land is Government land, the land then would be "public premises" in terms of

Sections 2(c) and (e) of the Public Premises (Eviction of Unauthorized Occupants)

Act, 1971. The prayer clauses quoted above show that proceedings were initiated

by defendant no.1 before the Estate Officer. In these proceedings adjudication took

place by passing of the order of the Estate Officer. It is not disputed on behalf of

the plaintiffs that as per the orders passed by the Estate Officer, plaintiffs were

directed to be evicted from the subject lands. With respect to separate lands and

separate plaintiffs, the Estate Officer has passed separate orders, all of which are

however dated 27.2.2009. Appeals were filed by the plaintiffs in both these suits

before the Court of the District Judge, Delhi and the appeals, being four in number

have been dismissed by Shri R.K. Gauba, District Judge, South District, Saket,

New Delhi in terms of his judgment dated 22.11.2011. Counsel for the plaintiffs

admits that the plaintiffs have filed writ petitions in this Court against the judgment

dated 22.11.2011, and those writ petitions are likely to be listed soon before the

appropriate Bench for admission.

4. Issues in CS(OS) No.1075/2011 were framed on 24.8.2009 which

read are under:-

"1. Whether the plaintiffs are the owners of the land with respect whereto the suit has been filed?OPP

2. Whether the plaintiffs were in possession of the said land? OPP

3. Whether the said land was acquired by the Union of India vide award No.28 dated 27th November, 1912? OPD

4. If the issues No.1 & 2 are found in favour of the plaintiffs and the plaintiffs at the time of decision of the suit cannot be put been used for public purposes by the defendants, to what compensation, if any, are the plaintiffs entitled to from the defendants? OPP

5. Whether the plaintiffs are entitled to any damages from the defendants and if so in what amount? OPP

6. Relief"

5. This suit being CS(OS) 1075/2000 has been treated as the lead

case, and the connected CS(OS) 2171/2003 is being heard alongwith the

present suit.

6. On 10.10.2012, I passed the following order:-

"1. The disputes in these cases pertain to „public premises‟. Plaintiffs claim ownership of government land. Government land being public premises would be subject matter of action under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971(hereinafter referred to as „the Act‟). In terms of Section 15 of

the Act, civil Courts will have no jurisdiction to entertain the matters which the Estate Officer can deal with under the Act. In the present suits, actions of the Estate Officer are sought to be stayed.

2. I have recently had an occasion to consider this aspect in the judgment in the case of DCM Limited Vs. Delhi Development Authority in CS(OS) No.1085/1991 decided on 19.9.2012. These suits are prima facie liable to be dismissed, and the plaintiffs will have to contest the proceedings before the Estate Officer under the Act. Counsel for the plaintiffs is not available in spite of the matters having been passed over.

3. Only in the interest of justice, these cases are adjourned th to 15 October, 2012, making it clear that no adjournment shall be granted on the next date of hearing."

7. It is trite that issues with respect to eviction of unauthorized occupants

from public premises have necessarily to be the subject matter of proceedings

under Public Premises (Eviction of Unauthorized Occupants) Act, 1971. Once

proceedings for eviction and/or damages are filed, in such proceedings the defence

also will be considered as to whether or not the Government i.e defendant nos.1

and 2 in this case are or are not the owners or the plaintiffs who are alleged

unauthorized occupants under the Public Premises Act are occupying the land

because of valid title to the same.

8. Learned counsel for the plaintiffs argues that this Court is bound to

conduct trial on the issues framed and a civil Court i.e this Court has jurisdiction to

determine questions of title. Reliance is placed upon the judgment of the Supreme

Court in the case of State of Uttar Pradesh & Anr. vs. Zia Khan, (1998) 8 SCC

483 and of a Division Bench judgment of this Court in UOI vs. M/s. I.S. Goel &

Co. & Ors. 45(1991) DLT 277, in support of the proposition.

9. Before I refer to the judgments relied upon by the plaintiffs, I would, at this

stage, seek to reproduce certain paras of a judgment delivered by me recently on

19.9.2012 in CS(OS) 1085/1991 titled as DCM Ltd. vs. DDA. The paragraphs

quoted below squarely deal with the aspect that all issues of facts and law,

including complicated questions of fact and law, have to be decided by the Estate

Officer under the Public Premises Act, and the civil Courts have no jurisdiction.

Paras 7, 8, 9, 12 & 13 of the said judgment read as under:-

"7. A Constitution Bench of the Supreme Court has had an occasion to consider the aspect as to whether an Estate Officer can go into seriously disputed questions of facts and other issues before him. The Constitution Bench judgment of the Supreme Court is reported as Ashok Marketing Ltd. and Anr. Vs. Punjab National Bank and Ors. 1990 (4) SCC 406. Paras 29 to 35 of the said judgment are relevant and the same read as under:-

"29. Shri A.K. Ganguli, has urged that a person who was put in occupation of the premises as a tenant and who was continued in such occupation after the expiry or the termination of his tenancy cannot be regarded as a person in unauthorised occupation under Section 2(g) of the Public Premises Act. The submission of Shri Ganguli is that, the occupation of a person who was put in possession as a tenant is juridical possession and such an occupation cannot be regarded as unauthorised occupation. In support of this submission, Shri Ganguli has placed reliance on the decision of the Bombay High Court in Brigadier K.K. Verma and Anr. v. Union of

India and Anr. which has been approved by this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh.

30. The definition of the expression 'unauthorised occupation' contained in Section 2(g) of the Public Premises Act is in two parts. In the first part the said expression has been defined to mean the occupation by any person of the Public premises without authority for such occupation. It implies occupation by a person who has entered into occupation of any public premises without lawful authority as well as occupation which was permissive at the inception but has ceased to be so. The second part of the definition is inclusive in nature and it expressly covers continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. This part covers a case where a person had entered into occupation legally under valid authority but who continues in occupation after the authority under which he was put in occupation has expired or has been determined. The words "whether by way of grant or any other mode of transfer" in this part of the definition are wide in amplitude and would cover a lease because lease is a mode of transfer under the Transfer of Property Act. The definition of unauthorised occupation contained in Section 2(g) of the Public Premises Act would, therefore, cover a case where a person has entered into occupation of the public premises legally as a tenant under a lease but whose tenancy has expired or has been determined in accordance with law.

31. Brigadier K.K. Verma and Anr. v. Union of India and Anr. (Supra) was decided under the provisions of the Government Premises (Eviction) Act, 1950, which did not contain the definition of the expression 'unauthorised occupation'. In that case it has been held that under the Indian law, the possession of a tenant who has ceased to be a tenant is protected by law and although he may not have the right to continue in possession, after the termination of the tenancy, his possession is juridical and that possession is protected by statute, and therefore, an erstwhile tenant can never become a trespasser and his possession cannot be regarded as unauthorised occupation. The learned Judges have also observed that unless the legislature had given indication of a clear intention that by the expression 'unauthorised occupation' it meant not only person who had no title at all but also persons who are titled at the inception and whose title came to an end, it would not be proper to give an interpretation to the expression

'unauthorised occupation' which would run counter to the principles of law which have been accepted in this country. After this decision the legislature intervened and introduced the definition of the expression 'unauthorised occupation' in the Public Premises (Eviction of Unauthorised Occupants) Act, 1958, which definition has been reproduced in Section 2(e) of the Public Premises Act and in the said definition the legislature has taken care to make an express provision indicating that the expression 'unauthorised occupation' includes the continuance in occupation by any person of the public premises after the authority (whether by way of grant or any other mode of transfer) under which he was allowed to occupy the premises has expired or has been determined for any reason whatsoever. In the circumstances the petitioners cannot derive any assistance from the decision of the Bombay High Court in Brigadier K.K. Verma's case (supra).

32. Shri Ganguli has placed reliance on the decision of A.P. Sen, J. in Express Newspapers Pvt. Ltd. and Ors. v. Union of India and Ors. and has submitted that in that case the learned Judge has held that cases involving relationship between the lessor and lessee fall outside the purview of the Public Premises Act. We have carefully perused the said decision and we are unable to agree with Shri Ganguli. In that case A.P. Sen, J. has observed that the new building had been constructed by the Express Newspapers Pvt. Ltd. after the grant of permission by the lessor, and, therefore, the Express Newspapers Pvt. Ltd. was not in unauthorised occupation of the same within the meaning of Section 2(g) of the Public Premises Act. It was also held by the learned Judge that the Express Building constructed by the Express Newspapers Ltd. with the sanction of lessor on plots Nos. 9 and 10 demised on perpetual lease can, by no process of reasoning, be regarded as public premises belonging to the Central Government under Section 2(e) of the Public Premises Act, and therefore, there-was no question of the lessor applying for eviction of the Express Newspapers Pvt. Ltd. under the provisions of the Public Premises Act. The aforesaid observations indicate that the learned Judge did not proceed on the basis that cases involving relationship of lessor and lessee fall outside the purview of the Public Premises Act. On the other hand the said observations show that the learned Judge has held that the provisions of the Public Premises Act could not be invoked in the facts of that case.

33. Another submission that has been urged by Shri Ganguli is that the question whether a lease has been determined or not involves complicated questions of law and the estate officer, who is not required to be an officer well versed in law, cannot be expected to decide such question and, therefore, it must be held that the provisions of the Public Premises Act have no application to a case when the person sought to be evicted had obtained possession of the premises as a lessee. It is true that there is no requirement in the Public Premises Act that the estate officer must be a person well versed in law. But, that, by itself, cannot be a ground for excluding from the ambit of the said Act premises in unauthorised occupation of persons who obtained possession of the said premises under a lease. Section 4 of the Public Premises Act requires issuing of a notice to the person in unauthorised occupation of any Public Premises requiring him to show cause why an order of eviction should not be made. Section 5 makes provisions for production of evidence in support of the cause shown by the person who has been served with a notice under Section 4 and giving of a personal hearing by the estate officer. Section 8 provides that an estate officer, shall, for the purpose of holding any enquiry under the said Act have the same powers as are vested in a civil court under the CPC, 1908, when trying a suit in respect of the matters specified therein namely:

(a) summoning and enforcing the attendance of any person and examining him on oath;

(b) requiring discovery and production of documents; and

(c) any other matters which may be prescribed.

34. Rule 5(2) of the Public Premises (Eviction of Unauthorised Occupants) Rules, 1971, requires the estate officer to record the summary of evidence tendered before him. Moreover Section 9 confers a right of appeal against an order of the estate officer and the said appeal has to be heard either by the district judge of the district in which the public premises are situate or such other judicial officer in that district of not less than ten years' standing as the district judge may designate in that behalf. In shows that the final order that is passed is by a judicial officer in the rank of a district judge.

35. A similar contention was raised before this Court in Maganlal Chhagganlal (P) Ltd. v. Municipal Corporation of Greater Bombay and Ors. wherein the validity of the provisions of Chapter VA of the Bombay Municipal Corporation Act, 1888 and the Bombay Government Premises (Eviction) Act, 1955 were challenged before this Court and the said contention was negatived. Aligiriswami, J. speaking for the majority, has observed as under:

"Even though the officers deciding these questions would be administrative officers there is provision in these Acts for giving notice to the party affected, to inform him of the grounds on which the order of eviction is proposed to be made, for the party affected to file a written statement and produce documents and be represented by lawyers. The provisions of the civil Procedure Code regarding summoning and enforcing attendance of persons and examining them on oath, and requiring the discovery and production of documents are a valuable safeguard for the person affected. So is the provision for appeal to the Principal Judge of the City civil Court in the city of Bombay, or to a District Judge in the district who has got to deal with the matter as expeditiously as possible, also a sufficient safe- guard as was recognised in Suraj Mall Mehta's case." (underlining added)

8. The emphasized portions of the aforesaid paras leave no manner of doubt that the Estate Officer is fully competent to decide all issues of facts and law, complicated or not, which arise between the parties to the proceedings before him. The Supreme Court has in the judgment of Ashok Marketing Ltd. (supra) distinguished the judgment of three Judges Bench in the case of Express Newspapers Pvt. Ltd. Vs. Union of India & Ors 1986(1) SCC 133 and which had held that civil Courts had jurisdiction.

9. In terms of Section 15(a) of the Public Premises Act, 1971, the jurisdiction of the civil Court is completely barred with respect to issues which have to be dealt with by the Estate Officer. As

per Section 15(a), a civil Court will not have jurisdiction to entertain any suit or proceeding in respect of eviction of a person who is in unauthorized occupation of the public premises. Obviously, the issue of eviction of any person in unauthorized occupation of public premises will necessarily have to include a decision to be given by the Estate Officer on the defence of the person who pleads that he is not an unauthorized occupant of public premises. All defences therefore that the eviction proceedings cannot go on before the Estate Officer because the person who is alleged to be in an unauthorized occupation is not an unauthorized occupant will have to be raised before and to be decided by the Estate Officer acting under the Public Premises Act, 1971. The issue in the present suit also would have been or ought to have been raised by the present plaintiff in the proceedings before the Estate Officer. If these issues are raised which arise in this suit, the judgment of the Estate Officer, subject to any decision in the appeal will operate as res judicata. If certain issues which the present plaintiff ought to have raised but did not raise then the principles of constructive res judicata will apply against the plaintiff.

12. Learned counsel for the plaintiff very vehemently sought to argue that the subject suit has to be decided inasmuch as Section 9 of CPC mandates this Court to decide all civil suits. I cannot agree. Section 9 CPC itself states that a civil Court will decide a suit unless cognizance of the same is expressly or impliedly barred. Once there is a specific bar of jurisdiction of the civil Court with respect to matters which can be decided by the Estate Officer, and Section 15(a) of the Public Premises Act, 1971 clearly requires the issue with regard to the nature of occupation of a person i.e whether authorized or unauthorized, and all aspects thereto, to be decided by the Estate Officer, the civil Court jurisdiction‟s is barred.

13. I may note that in the earlier Public Premises Act of 1958, the Supreme Court had held the same to be constitutionally invalid because the Governmental authorities could pick and

choose/discriminate between two sets of persons, by initiating civil proceedings against one set of person and approaching the Estate Officer for the other set of persons; and therefore the 1958 Act was struck down. In the present 1971 Act, the discrimination which existed in old law was removed and every proceeding which fell in the jurisdiction of the Estate Officer had necessarily and only to be tried in terms of Section 15 by the Estate Officer and not by the civil Court. I have therefore to act in furtherance of the intendment of the legislature in bringing in the Section 15 of the Public Premises Act, 1971."

10. The judgment of the Supreme Court in the Case of Ashok Marketing

Ltd.(supra) is a judgment of the Constitution Bench of the Supreme Court. A

judgment of the Constitution Bench will therefore, operate as against a judgment of

a Division Bench of lesser number of Judges. The judgment which is relied upon

on behalf of the plaintiffs in the case of State of U.P. vs. Zia Khan makes no

reference to the earlier binding judgment of the Constitution Bench in the case of

Ashok Marketing Ltd., and, therefore, in my opinion, cannot be treated as a

binding precedent. Further with all humility, the said judgment is actually an order

of just one page and there is no indication that what are the provisions of the U.P.

Public Premises Act and how they are similar to the Central Act. There is no

discussion of any facts or legal issues in the said judgment, much less reference has

been made to the judgment of the Constitution Bench in Ashok Marketing Ltd.

case.

11. So far as the judgment of the Division Bench of this Court in the case of

M/s. I.S. Goel and Company, the said judgment is of a Division Bench of this

Court, and therefore, it cannot prevail over a judgment of the Supreme Court, and

that too of the Constitution Bench of the Supreme Court.

12. In the present case, even the observations made by this Court in the case of

DCM Ltd. with respect to the aspect of res judicata will equally apply, subject of

course to any final decision in the proceedings under the Public Premises Act. In

this regard, reference can be usefully invited to Paras 11 and 14 of the said

judgment, which read as under:-

"11. It has been held by the Supreme Court in the judgment reported as Gulam Abbas and Ors. Vs. State of Uttar Pradesh and Ors. 1982 (1) SCC 71 that Section 11 CPC is not exhaustive of the doctrine of res judicata and the doctrine of res judicata is of much wider and general application. Para 14 of this judgment reads as under:-

"14. Counsel for respondents 5 and 6 next contended that the decision in this litigation (Suit No. 242 of 1934) would not operate res judicata against them or the Sunni community of Mohalla Doshipura inasmuch as Munsif's Court at Banaras did not have either pecuniary or subject-wise jurisdiction to grant the reliefs claimed in the instant writ petition; in other words that Court was not competent to decide the present subject-matter and such the bar of res judicata under Section 11 of the civil Procedure Code 1908 was not attracted, and it would be open to the respondents 5 and 6 and the members of the Sunni community to agitate question of title either to the plots or to the structures thereon or even the Shias' entitlement to their customary rights over them. In support of this contention counsel relied on two decisions namely, Rajah Run Bahadoor Singh v. Mussumut Lachoo

Koer XII I.A. 23, and Mst. Gulab Bai v. Manphool Bai. It is not possible to accept this contention for the reasons which we shall presently indicate. It is well settled that Section 11 of the CPC is not exhaustive of the general doctrine of res judicata and though the rule of res judicata as enacted in Section 11 has some technical aspects the general doctrine is founded on considerations of high public policy to achieve two objectives, namely, that there must be a finality to litigation and that individuals should not be harassed twice over with the same kind of litigation. In Daryao and Ors. v. The State of U. P. this Court at page 582 has observed thus:

"Now the rule of res judicata as indicated in Section 11 of the CPC has no doubt some technical aspects, for instance, the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that finality should attach to the binding decisions pronounced by Courts of competent Jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation."

Reference in this connection was made by the Court to the famous decision in the leading Duchess of Kingstori's 2 Smith Lead Case. 13th Edn. 644-645 case. Halsbury's laws of England 3rd Edition Vol. 15 para 357 at p. 185 and Corpus Juris.Vol. 34 p, 743. In Gulab Chand Chhotalal Parikh v. State of Bombay (now Gujarat) the question was whether after the" dismissal of a writ petition on merits after full contest by the High Court under' Article 226 of the Constitution a subsequent suit raising the same plea claiming discharge from the liability on the same ground was entertainable or not and this Court held that on general principles of res judicata the decision of the High Court on the writ petition operated as res judicata barring the subsequent suit between the same parties with respect to the same matter. On a review of entire case law on the subject, including Privy Council decisions, this Court at page 574 observed thus:

"As a result of the above discussion, we are of opinion that the provisions of Section 11 CPC are not exhaustive with respect to an earlier decision operating as res judicata between the same parties on the same matter in controversy in a subsequent regular suit and that on the general principle of res judicata, any previous decision on a matter in controvesy, decided after full contest or after affording fair opportunity to the parties to prove their case by a Court competent to decide it, will operate as res judicata in a subsequent regular suit. It is not necessary that the Court deciding the matter formerly be competent to decide the subsequent suit or that the former proceeding and the subsequent suit have the same subject mutter. The nature of the former proceeding is immaterial."

We do not see any good reason to preclude such decisions on matters in controversy in writ proceeding under Article 226 or 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of the finality of decisions after full contest.

The above observations were approved by this Court in a subsequent decision in the case of Union of India v. Nanak Singh. It is thus clear that technical aspects of Section 11 of CPC, as for instance, pecuniary or subjectwise competence of the earlier forum to adjudicate the subject-matter or grant reliefs sought in the subsequent litigation would be immaterial when the general doctrine of res judicata is to be invoked. The two decisions relied upon by counsel for the respondents 5 and 6 were directly under Section 11 of CPC. Even under Section 11 the position has been clarified by inserting a new Explanation VIII in 1976. It was not disputed that the Munsif's Court at Banaras was competent to decide the issues that arose for determination before it in earlier litigation and, therefore, the decision of such competent Court on the concerned issues must operate as a bar to any subsequent agitation of the same issues between the same parties on general

principles of res judicata. The contention raised by counsel for respondents 5 and 6 in this behalf, therefore, has to be rejected. It was then faintly urged by counsel for respondents 5 and 6 that the dismissal of plaintiffs' suit (No. 232 of 1934) would not confer any rights on the Shia community who were party defendants to the suit. The contention is merely required to be stated to be rejected. Not only were the Sunnis' customary rights (specified in para 4 of the plaint) over the plots and structures in question put in issue during the trial but the customary rights to perform their religious ceremonies and functions on the plots and structures thereon claimed by the Shias were also directly and substantially put in issue inasmuch as the plaintiffs (Sunni Muslim) had sought an injunction restraining the Shias from exercising their customary rights. therefore, the decision in this litigation which bore a representative character not merely negatived the Sunnis' customary rights claimed by them over the plots and structures but adjudicated, determined and declared the Shias' entitlement to their customary rights to perform their religious ceremonies and functions on the plots and structures thereon in question and this decision is binding on both the communities of Mohalla Doshipura. There is no question of there being any gap or inadequacy of the material on record in the matter of proof of Shias' entitlement to customary rights over the plots and structures in question, whatever be the position as regards their title to the plots or structures. We have already indicated that this decision even upholds their title to two main structures, Zanna Imambara and Mardana Imambara (Barardari). In our view, therefore, this is a clear case of an existing or established entitlement to the customary rights in favour of the Shias' community to perform their religious ceremonies and functions over the plots and structures in question under the decree of competent civil Court for the enforcement of which the instant Writ Petition has been filed." (underlining added)

xxxx xxxx xxxx xxxx

14. In view of the above, the present suit is barred by principles of res judicata. Also, the present suit cannot be tried under Section 9 CPC inasmuch as there is a bar to the jurisdiction of the civil Court under Section 15(a) of the Public Premises Act, 1971. I therefore dismiss the suit as the civil Court has no jurisdiction in terms of Section 15(a) of the Public Premises Act, 1971 and also on the ground of general principles of res judicata, of course subject to any decision in appeal against the judgment dated 30.3.2001 of the Estate Officer."

13. In view of the aforesaid, it is quite clear that this Court has no inherent

jurisdiction to try the subject suits inasmuch as, all issues as to public premises

have to be necessarily tried and decided before the Court of Estate Officer under

the Public Premises Act. I may only reiterate that the Supreme Court in the case of

Ashok Marketing Ltd. (supra) has emphasized that the Estate Officer has power

to decide all complicated questions of fact and law and who is vested with

appropriate powers under the Code of Civil Procedure, 1908 when trying a suit.

Relevant observations in the case of Ashok Marketing Ltd. (supra) which are in

para 33 of the said judgment have already been reproduced above.

14. Accordingly, following the judgment in the case of DCM Limited, the

upshot of the above discussion is that the present suits cannot be tried before the

civil Court. The suits are also barred by res judicata subject of course to the

finality in appeal of the orders of the Estate Officer. The suits are accordingly

dismissed, leaving parties to bear their own costs.

15. Since the suits are disposed of, all pending applications also stand disposed

of accordingly.

OCTOBER 15, 2012                                  VALMIKI J. MEHTA, J.
gm