Shankar Lal vs Jai Pal & Anr.
2013 Latest Caselaw 3798 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                RSA 119/2013
                                             Decided on : 29th August, 2013
    SHANKAR LAL                                                ..... Appellant
                        Through:       Mr.P.Chakraborty, Advocate.

                        versus

    JAI PAL & ANR.                                        ..... Respondents

                        Through:       Mr.Jagat Rana, Advocate for
                                       R-2/Delhi Urban Shelter
                                       Improvement Board.

    CORAM:
    HON'BLE MR. JUSTICE V.K. SHALI


    V.K. SHALI(ORAL)

    %

1. This is a regular second appeal filed by the appellant against the

judgment dated 09.05.2013 passed by the learned ADJ dismissing the

appeal and upholding the judgment and the decree dated 13.07.2005

passed by the trial court in a suit filed by one Sh. Jai Pal.

2. The learned counsel for the appellant has stated that he has

raised substantial questions of law in the appeal, which need

consideration by this court.

3. I have heard the learned counsel for the parties.

4. Before dealing with the submissions made by the learned

counsel for the appellant, it will be worthwhile to give a brief

background of the case. R-1/Jai Pal originally filed a Suit

No.429/2008 (renumbered later on and given the new no.1036/1991)

against Mr.Shankar Lal and Mr.Abdul Razaq. The case which was

set up by him was that he had been allotted a parcel of land measuring

25 square yards bearing No.J-III/387, J.J.Colony, Wazirpur, Delhi by

DDA vide allotment letter dated 08.03.1978. He took possession and

raised a temporary construction. On 19.11.1978 when he came to the

suit premises, he was sought to be forcibly dis-possessed. This

forcible dispossession was resisted by Mr.Jai Pal and he lodged a

report with the police. He also tried to protect his possession by filing

the suit for permanent injunction against the present appellant

Mr.Shankar Lal and one Mr.Abdul Razaq.

5. The present appellant/ Mr.Shankar Lal and Mr.Abdul Razaq

(defendants in the suit) were served. Both the defendants filed their

common written statement. After filing of the common written

statement, Mr.Abdul Razaq absented himself and he was proceeded

ex parte. However, so far as the present appellant, defendant No.1 in the suit was concerned, he continued to appear. The defence taken by

the appellant and Mr.Abdul Razaq in the written statement was that

Mr.Jai Pal's allotment had, in fact, been cancelled and he was not in

possession. It was also pointed out that the said parcel of land was

initially allotted to one Sh.Puran, who happened to be the brother in

law of the present appellant. On the basis of these facts, it was

contended that Mr.Jai Pal was not in possession and consequently he

was not entitled to a decree of permanent injunction. On the

pleadings of the parties, the following issues were framed and

evidence adduced.

"1. Whether the suit is maintainable as the plaintiff has no locus standi to file the suit? OPD

2. Whether the plaintiff is entitled to the relief claimed?

3. Relief."

6. The learned trial court returned a finding to the effect that no

doubt the said parcel of land was originally allotted to one Mr.Puran,

however, it was cancelled and thereafter it was allotted to Mr.Jai Pal.

It was also observed by the trial court that Mr.Jai Pal's allotment was

admittedly cancelled by the DDA, but as the possession was not taken, it continued with him and accordingly he was entitled to

protect his possession qua the defendants namely the present

appellant/ Mr.Shankar Lal and Mr.Abdul Razaq. This suit was

decreed on 13.07.2005.

7. The present appellant, feeling aggrieved by the said judgment

and decree, preferred the first appeal bearing No. RCA 37/2005 titled

Shankar Lal Versus Jai Pal and Anr.

8. It may also be pertinent to mention here that Mr.Jai Pal had

filed an independent suit seeking declaration to the effect that the

cancellation letter dated 03.02.1997, which was purportedly issued by

the allotting authority of the parcel of land in question namely DDA,

(presently stands replaced by the Delhi Urban Improvement

Development Board being the successor body) be declared null and

void.

9. It may also be worthwhile to mention here that originally the

parcel of land in question bearing no. J-III/387, J.J.Colony, Wazirpur,

Delhi was allotted to Sh.Puran and this is an admitted fact, but this

allotment was cancelled. It is also not in dispute that Mr.Jai Pal was

also allotted another parcel of land originally in Nand Nagri being Plot No.A/114/4. However, on his request for change, the present

allotment i.e. J-III//387, J.J.Colony, Wazirpur, Delhi was made in lieu

of the parcel of land allotted to him in Nand Nagri on the ostensible

understanding that he shall surrender the same. It was the case of the

DDA that its allotment of J-III/387, J.J.Colony, Wazirpur, Delhi was

obtained by Mr.Jai Pal by fraud inasmuch as he did not surrender the

parcel of land in Nand Nagri in lieu of which the present parcel of

land was allotted and as a matter of fact, he had sold the same to some

third party.

10. The respondent No.1/Jai Pal did not prefer any appeal against

dismissal of the suit and thus that finding became final qua Mr.Jai Pal

meaning thereby that the validity of the cancellation of the allotment

to Mr.Jai Pal by the DDA or its successor body was not questionable.

But nevertheless the fact remains that in the suit for permanent

injunction, the trial court had come to a finding that dehors this

cancellation of the parcel of land in question, Mr.Jai Pal continued to

be in possession and he was entitled to protect his possession qua the

present appellant and Mr.Abdul Razaq. So far as the appeal filed by

the present appellant before the learned ADJ is concerned, that was also dismissed confirming the judgment and decree of the trial court

with regard to protection against dispossession of Mr.Jai Pal by the

appellant and his co-defendant Mr.Abdul Razaq from the property in

question being J-III/387, J.J.Colony, Wazirpur, Delhi meaning

thereby that Mr.Jai Pal could not be dispossessed by any person

except in accordance with due process of law.

11. Mr.Shankar Lal, feeling aggrieved by the dismissal of his

appeal and upholding of the judgment of the trial court, has preferred

the present appeal and raised the following questions:

"I) Whether the suit abated in the year 1987 when the allotment of the plaintiff/respondent was cancelled by DDA and suit no.191/1990 filed by the plaintiff, Jai Pal for declaration against cancellation was dismissed on 04.08.1997 by Ld.Single Judge, A.K.Mehandiratta thereby ousting the jurisdiction of the civil court in as much as plot no.J-III/387 allotted to the respondent/plaintiff was a grant under the government grants act which overrides any other law and the order of cancellation became absolute under Section 2 & 3 of the Government Grants Act, 1895.

II) Whether the respondent/plaintiff was not entitled to any relief because of the fraud committed by him relating to allotment of plot no.J-III/387, Wazirpur, J.J.Colony and the fact that he filed suit no.191/1990 in the court of Sh.A.K.Mehandiratta for declaration that the cancellation of his allotment in the year 1987 was null and void but the suit was dismissed on 04.08.1997 and this fact was suppressed by the respondent/plaintiff in the proceedings in suit no.52/92 before the trial court of Sh.Sunil Chaudhary, civil judge and in suit no.191/90 before Sh.A.K.Mehandiratta. The suppression of this material facts is a fraud which is a nullity in the eye of the law.

III) Whether an order of cancellation of the allotment of the respondent/plaintiff by a higher authority could be set aside on the evidence of a subordinate without examination of the authority which cancelled the allotment.

IV) Whether the respondent/plaintiff abandoned the plot no. J-III/387 after sometimes of its allotment in the year 1978 and starting living in plot no.F-7/32-33, Sultantpuri. Therefore, in terms of the allotment, he deemed to have been forfeited his right to plot no.J- III/387, Wazirpur, J.J.Colony.

V) Whether the decree obtained by him in suit no.52/92 is executable for not interfering with his possession as on his own admission he was not in occupation of plot no. J-III/387, J.J.Colony, Wazirpur on 13.07.2005 when the decree was obtained by him and was living in property no.F-7/32-33, Sultanpuri, Delhi."

12. The first question, which has been raised by the learned counsel

for the appellant, is regarding abatement of the suit filed by the

appellant in the year 1987 on account of cancellation of his allotment.

On enquiry, Mr. Chakraborty, the learned counsel for the appellant

has contended that there is a judgment of the Supreme Court to the

effect that in case the person who has filed the suit on the basis of title to the property and that allotment stands cancelled, then the suit

abates. There is no provision in CPC envisaging such a contingency

that the suit will abate on account of cancellation of the allotment.

Order 22 only envisages the contingency when a party whether he is

the plaintiff or a defendant dies and the right to sue survives but no

steps are taken by the concerned party to bring on record the legal

heirs of the deceased party, the proceedings against him abate.

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

appellant that the suit in the instant case which was filed by the

appellant only for permanent injunction would abate on account of

cancellation of the parcel of the land allotted to him because in the

suit the only relief which he was claiming against the present

appellant and Mr.Abdul Razaq was that he should be permitted to

protect his possession or conversely that the two above named

persons should not interfere with his possession.

14. Therefore, this in my view, does not raise any question of law

much less any substantial question of law.

15. The remaining questions which have been formulated by the learned counsel for the appellant are essentially questions of facts

which have been taken note of by the courts below, e.g. fraud. The

appellant states that if fraud has been committed then not only this

must be averred but also be proved on record. Nothing of this sort

has been done. The factual questions raised by the appellant have

been adjudicated by the two courts below. No substantial question in

terms of Section 100 CPC has been raised.

16. Incidentally the counsel for the Delhi Urban Shelter

Improvement Board which is the successor of the erstwhile Slum and

JJ Department of the DDA and the MCD has made a statement at the

bar that so far as the possession of the aforesaid parcel of land bearing

no.J-III/387, J.J.Colony, Wazirpur, Delhi is concerned, the possession

has already been taken over by them, and therefore, the appeal itself is

not maintainable.

17. I find some force in the contention of the learned counsel

representing the Delhi Urban Shelter Improvement Board.

Notwithstanding the fact that the said body is not a party, the present

appeal is not maintainable in the light of the statement itself.

18. I do not find any merit in the appeal with regard to the

formulation of any substantial question of law and accordingly the

same is dismissed.

V.K. SHALI, J

AUGUST 29, 2013/dm