Ram Kishan vs Ramesh Kumar & Ors
2015 Latest Caselaw 606 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI


+                       RSA No.34/2015
                                      Decided on : 21st January, 2015


    RAM KISHAN                                             ..... Appellant
                        Through:    Mr.Manoranjan, Adv.

                        versus

    RAMESH KUMAR & ORS                                     ..... Respondent

                        Through

    CORAM:
    HON'BLE MR. JUSTICE V.K. SHALI
    V.K. SHALI, J. (ORAL)

C.M. No.1164/2015

1. Allowed subject to deficiency being rectified.

2. The application stands disposed of.

C.M. No.1165/2015

1. This is an application seeking condonation of delay of 10 days

in refilling the appeal.

2. For the reasons stated in the application, as sufficient cause has

been shown, the delay as prayed for is condoned and the application

is allowed.

R.S.A. No.34/2015

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

contended by the learned counsel for the appellant that the learned

trial court as well as the first appellate court have fallen into an error

by directing the MCD to take such appropriate action as may be

deemed fit with respect to the encroachment/unauthorized

construction on public land. It has been contended that instead of

passing such a direction, a mandate ought to have been issued to the

MCD to remove the encroachment/unauthorized construction on the

public land.

2. The appellant/plaintiff had filed a suit for mandatory and

permanent injunction against the private respondents and the MCD.

The private respondents (respondent Nos.1 & 2 herein) happened to

be his cousins and co-owners of the suit property. The allegation

made in the plaint was that the respondent Nos.1& 2 had allegedly

made unauthorized construction on the property in question and,

therefore, a direction be given to the respondent No.3 that is MCD to

remove the unauthorized construction as well as also pass a decree of

permanent injunction against respondent Nos.1 & 2 from raising any further construction.

3. The suit of the plaintiff/appellant was contested by all the

respondents.

4. After completion of pleadings, issues were framed, which are

as under:

i) Whether the plaintiff is entitled to the relief of permanent injunction? OPP.

ii) Whether the plaintiff is entitled to the relief of mandatory injunction? OPP.

iii) Relief.

5. Issue No.1 is with regard to the fact that as to whether the

appellant/plaintiff was entitled to grant of permanent injunction and

as to whether the plaintiff was entitled to mandatory injunction. The

trial court, after analyzing the evidence came to the finding that the

plaintiff is not entitled to permanent injunction as he has not been able

to establish as to when the unauthorized construction was raised. It

was also commented upon by the learned trial court that the

appellant/plaintiff was guilty of concealment of material information

inasmuch as he himself was co-owner of the property and they

(appellant/plaintiff and respondent Nos.1 & 2) had encroached on the public land and, therefore, the court did not exercise discretionary

jurisdiction in favour of the appellant/plaintiff. The prayer for grant

of mandatory injunction in favour of the appellant was also denied to

the appellant/plaintiff observing that he was not able to establish his

case. However, an opportunity was given to the MCD (respondent

No.3 before the trial court) that in case it feels it appropriate to

remove the unauthorized construction/encroachment on public land, it

may do so in accordance with law.

6. The present appellant feeling aggrieved preferred first appeal.

The first appellate court after hearing the learned counsel for the

appellant/plaintiff visited the entire evidence afresh and agreed with

the findings of the trial court and dismissed the appeal. Thus, there

was a concurrent finding recorded by the two courts below with

regard to the rights to which the appellant/plaintiff was entitled to.

7. Still not feeling satisfied, the present regular second appeal has

been filed the appellant/plaintiff. It has been contended that the

evidence is overwhelming to show that the plaintiff was entitled to

permanent injunction as well as mandatory injunction. The learned

counsel has taken the court through some portion of the evidence recorded by the trial court to canvass his point.

8. I have considered the submissions made by the learned counsel

for the appellant.

9. I do not find any fault with the findings returned by the two

courts below with regard to the appreciation of evidence produced by

the appellant in order to prove his claim for permanent injunction.

Rather, it has taken note of the fact that appellant has not been truthful

in telling the facts. As regards mandatory injunction, it has directed

the MCD to remove unauthorized construction or encroachment on

public land which is perfectly valid. Apart from that, there is no

question of law involved in the matter much less a substantial

question of law.

10. Accordingly, the present appeal does not merit any

consideration and the same is dismissed.

V.K. SHALI, J JANUARY 21, 2015/dm