Shri Man Singh vs Ramji Das
2013 Latest Caselaw 3755 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                         R.S.A No.174/2013
                                        Decided on : 26th August, 2013

SHRI MAN SINGH                                        ..... Appellant
                          Through:     Mr.L.B.Rai, Advocate.
                          versus
RAMJI DAS                                                ..... Respondent

CORAM:

HON'BLE MR. JUSTICE V.K. SHALI

V.K. SHALI, J (ORAL)

C.M. No.12967/2013 (for exemption)

Allowed, subject to all just exceptions.

C.M. No.12968/2013 (for delay)

1. This is an application seeking condonation of 88 days delay in

re-filing the appeal.

2. For the reasons mentioned in the application, the same is

allowed and delay of 88 days in re-filing the appeal is condoned as

„sufficient cause‟ has been shown.

3. The application stands disposed of.

R.S.A. No.174/2013 & C.M. No.12966/2013 (for stay)

1. I have heard the learned counsel for the appellant. It has been

contended by the learned counsel for the appellant that the following

substantial questions of law arise in the present regular second appeal :

" A. Whether a person is not entitled for protection by the court that is in settled possession of a land for the last 25 years?

B. Whether a person who is in settled possession of a land for a long period of 25 years is required to prove the ownership of the land for getting the injunction order or proving only the possession over the land in question is sufficient for getting the injunction order from the trial court?

C. Whether the appellate court as well as the trial court is justified in committing mistake by note granting protection to the appellant in spite of the fact that the appellant has proved his possession over the suit land for a very long period of 25 years?

D. Whether it is mandatory to prove the ownership of the land in question in spite of the fact that such a person is in possession of the suit land for getting injunction order from the court?

2. The learned counsel for the appellant has further relied upon the

judgments of the Delhi High Court in the following cases:

i) Hem Chand Jain v. Anil Kumar & Anr.; 1992 Rajdhani Law Reporter 224

ii) Babu Lal v. DDA; 43 (1991) Delhi Law Times 570.

3. I have heard the learned counsel for the appellant and gone

through the both the judgments mentioned above.

4. Before dealing with the contentions of the learned counsel for

the appellant, it may be pertinent to mention here that the appellant filed a suit for permanent injunction claiming himself to be the owner

in respect of the parcel of land measuring 4 bighas and 9 biswas

situated in Khasra No.12, Village Saboli, Nand Nagri, Delhi. He

contended that the respondent/defendant was trying to encroach upon

900 square yards of land out of the said Khasra No.12, Village Saboli,

Nand Nagri, Delhi. The respondent/defendant denied the factum of

said encroachment. It was stated by him that the total land area was 6

bighas and 9 biswas, out of which he was the owner in respect of 2

bighas of land. It was also denied by him that he was encroaching on

any parcel of land belonging to the appellant.

5. On completion of pleadings of the parties, the following issues

were framed:

"1. Whether present suit is not maintainable in the present form? OPD

2. Whether the plaintiff has any right over the land in question? OPP

3. Whether the plaintiff is entitled for a decree of permanent injunction as claimed in plaint? OPP

4. Relief."

6. The learned trial court came to a categorical finding insofar as

issue No.2 is concerned that the appellant/plaintiff had failed to prove

that he was the owner of the parcel of land measuring 4 bighas and 9 biswas. On the contrary, it was proved on record that one Ms.Shanti

Devi and Mr.Yashpal were the recorded bhumidars in respect of the

land in question. The trial court also returned a finding that the

appellant herein had claimed falsely to be owner of the land in

question. The issue of ownership was decided against the appellant and

it was also observed that so far as the question of grant of injunction to

the appellant was concerned, since he had claimed falsely to be the

owner of the land in question, therefore, he was not entitled to even the

discretionary relief of grant of injunction. In any case, the

respondent/defendant had also denied that he was encroaching on the

land of the appellant.

7. The appellant, feeling aggrieved by the order of the trial court,

preferred the first appeal. The first appellate court agreed with the

judgment and decree passed by the trial court. Still not feeling

satisfied, the appellant has filed the present appeal raising the aforesaid

questions.

8. The questions which have been raised by the appellant are

essentially the questions of fact and not the questions of law much less

substantial questions of law. On the contrary, what is notable in the

instant case is that the learned counsel for the appellant has contended that the trial court has fallen into an error by going into the question of

ownership of the disputed parcel of land while as the appellant was

claiming that he was in possession of the parcel of land for the last

more than 25 years and, therefore, his possession ought to have been

protected. It is in this context that the two judgments have been relied

upon by the appellant.

9. I do not agree with this contention of the learned counsel for the

appellant that the trial court has fallen into an error in deciding the

question of ownership. As a matter of fact, it is the

appellant/plaintiff‟s case that he was the owner of the parcel of land

measuring 4 bighas and 9 biswas in Khasra No.12, Village Saboli,

Nand Nagri, Delhi.

10. It may be pertinent here to reproduce the first paragraph of the

plaint which reads ad under:

"That the plaintiff is the owner of property measuring about 4 Bighas 9 Biswas situated in Khasra No.12 of village Saboli, Nand Nagari, Delhi and is in possession of the property since last more than 25 years."

11. In the teeth of the averments made by the appellant in the first

paragraph of the plaint, it is not open to the appellant to contend that the court was not required to decide the question of ownership in the

first instance which was the very basis of his claiming injunction. The

court has rightly noted that the appellant claimed falsely to be owner

while as he has not been able to prove by any credible document on

record the ownership in respect of the land in question.

12. In addition to this, the appellant has purportedly filed a site plan

along with the plaint wherein this area of 900 square yards, in respect

of which injunction was sought, has not at all been identified or

located.

13. On being asked, the learned counsel for the appellant, he has

shown a portion where a room of 10 x 10 feet is stated to have been

constructed. The measurement of the room of 10 x 10 feet would

make it just 100 square feet and certainly it cannot be construed as 900

square yards, in respect of which the appellant has sought injunction.

14. In addition to this, in respect of the grant of injunction, it has

rightly been observed by the trial court that it is a discretionary relief

and this discretion can be exercised only provided a person comes to

the court with clean hands. In the instant case, the trial court, after not

only noticing the demeanour of the witnesses, but also on analysis of

entire evidence, has returned a finding dealing with the falsity of the averments as well as the statements made by the appellant. It has

denied the relief of grant of injunction to the appellant.

15. The contention of the learned counsel for the appellant that mere

possessory right should have been enough to protect his possession, is

not applicable to the present case because in the instant case the

appellant was not claiming that he is in possessory rights holding the

premises in question. The appellant was setting up a definite case of

being the owner of the parcel of land in question. It seems that the suit

filed by the appellant was a collusive suit. The suit was dismissed.

16. There are no substantial questions of law arising from the

present appeal and the judgments which have been cited by the learned

counsel for the appellant are not applicable to the facts of the present

case.

17. The appeal is accordingly dismissed.

V.K. SHALI, J AUGUST 26, 2013/dm