Delhi High Court
Manish Sethi & Anr. vs Salimuddin & Anr. on 23 September, 2015
$~3 & 18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CS(OS) 1965/2009 and IAs No.13455/2009 & 8752/2011.
MANISH SETHI & ANR. ..... Plaintiffs
Through : Mr. Mohit Chaudhary, Advocate
versus
SALIMUDDIN & ANR. ..... Defendants
Through: Mr. Diwan Singh Chauhan, Advocate
for D-1.
AND
+ CS(OS) 3434/2012
SHER SINGH ..... Plaintiff
Through: Mr. Diwan Singh Chauhan, Advocate
versus
MANISH SETHI & ORS ..... Defendants
Through : Mr. Mohit Chaudhary, Advocate
for D-1 to 3.
CORAM:
HON'BLE MS. JUSTICE HIMA KOHLI
ORDER
% 23.09.2015
1. The plaintiffs in CS(OS)No.1965/2009 have instituted a suit
praying inter alia for a decree of permanent injunction against the
defendants No.1 & 2/private parties, defendant No.3/SDM,
Seelaampur, defendant No.4/SHO PS Karawal Nagar, Delhi and
defendant No.5/SHO PS Golakpuri, Delhi, restraining them from
encroaching into a plot of land measuring 1 bigha 16 biswas comprised
in Khasra No.20/1, situated in village Jeevanpur @ Johripur, Delhi.
2. The captioned suit was listed for admission on 21.10.2009, on
which date, summons were issued to the defendants. Simultaneously,
an ad interim ex parte order was passed in favour of the plaintiffs in IA
No.13455/2009, which is reproduced herein below for ready reference:
"I.A. No. 13455/2009 (Under Order 39 Rule 1 and 2)
Issue notice, returnable on 04.05.2010.
Learned counsel states that the deficient Court Fees
would be paid within two days.
The plaintiff sue the defendant for permanent
injunction, claiming the ownership of 21 bigha 2 biswa in
Village Jeevanpur alias Johripur, Delhi; the details of land-
holding are fully described in para 7 of the suit. It is stated
that some part of those lands were notified for acquisition
on 19.02.2003.
The suit describes a previous dispute between
plaintiffs and the defendants whereby an application under
Section 145 of the CPC was made against Mr. Shisu Pal
Singh on whose behalf the first defendant/Power of
Attorney holder in respect of the other executor, alleged
attempts to encroach and trespass into the lands. The
Sub-Divisional Magistrate (SDM) made an order on
07.08.2009, granting the relief claimed, to the plaintiffs.
It is submitted now that in the garb of executing that
order, the plaintiffs are sought to be placed at a serious
disadvantage since the defendants are trying to encroach
upon a portion of the other land holding, i.e. Khasra No.
20/1, claiming that they have ownership rights over it. It
is submitted that the plaintiffs are owners of Khasra NO.
20/1, which is separated by another land holding (i.e.
21/3) from the defendant's land-holding, which is Khasra
No. 21/3.
The Court has considered the materials, including
the copy of the asksijra, Khatoni of the years 1983-83 and
1986-87, the complaint under Section 145 and the order
of the SDM.
In view of the materials placed on record, prima
facie, the plaintiffs have established their occupation and
ownership of the claimed land. The asksijra also shows
that the defendants' land, Khasra No. 21/3 are not
contiguous of the plaintiffs' and separated by an
intervening land-holding. The plaintiffs have relied upon
complaints made to the police (SDM). In the
circumstances, unless an ad-interim injunction is granted,
the plaintiffs would be put to disadvantage and hardship.
The defendants, their legal heirs, employees,
representatives or anyone acting on their behalf are
hereby restrained from entering into, dispossessing or
attempting to dispossess the plaintiffs from the suit land,
i.e. Khasra No. 20/1 or any part thereof, till the next date
of hearing.
The plaintiffs shall comply with provisions of Order
39 Rule 3 within five days.
Order dasti under signatures of Court Master."
3. Pleadings were completed in the suit and admission/denial of
documents was concluded by the parties on 30.4.2012. In the
meantime, the defendant No.2 (Sher Singh) has proceeded to institute
a suit for permanent injunction against the plaintiffs in CS(OS)
1965/2009 and their father and one other person, Shri Salimuddin,
who has been impleaded by the plaintiffs in CS(OS) 1965/2014 as
defendant No.4, for restraining them from encroaching upon a parcel
of land measuring 11 bighas, comprised in Khasra No.3/10 (4-16),
3/11 (4-16) and 3/20/2 (1-08), situated in the same village.
4. The aforesaid suit was instituted by Sher Singh in the
Karkardooma Court and summons were issued therein on 17.4.2012.
Subsequently, on a Transfer Petition bearing No.13/2012 filed by the
plaintiff in CS(OS)No.1965/2009, the said suit was transferred to the
High Court and it was registered afresh as CS(OS)No.3434/2012.
5. Issues were framed in both the suits on 26.11.2014, whereafter
the parties were directed to appear before the Joint Registrar for
adducing evidence. On 24.4.2015, both the parties had agreed that as
the evidence is by and large the same in both the suits, they may be
clubbed together. Accordingly, it was directed that
CS(OS)No.1965/2009 shall be treated as the lead case and the
evidence, that will be recorded in the said suit, shall be read in
CS(OS)No.3434/2012 too. Further, Sher Singh, the plaintiff in
CS(OS)No.3434/2012 (defendant No.2 in CS(OS)No.1965/2009) was
directed to lead the evidence first.
6. When the case was placed before the Joint Registrar on
25.8.2015, learned counsel for Sher Singh had stated that there
appeared to be a typographical error in the order dated 24.4.2015,
and it was the plaintiffs in CS(OS)No.1965/2009, who ought to be
directed to lead the evidence in the first instance. In view of the said
controversy, both the cases have been placed before the Court for
consideration today.
7. Counsel for the plaintiffs in CS(OS)No.1965/2009 states that
there is no need to lead any evidence in the case for the reason that
the defendant No.1, who is the contesting defendant, has categorically
stated in the written statement that he has no right, title or interest in
the subject land measuring 1 bigha 16 biswas comprised in Khasra
No.20/1 situated in village Jeevanpur @ Johripur, Delhi.
8. Though no specific averments have been made by the defendant
No.2(Sher Singh) in the written statement on the above lines, learned
counsel for the said defendant states that his client does not lay any
claim on the subject land. He contends that under the garb of
instituting the present suit, the plaintiffs are in fact trying to encroach
upon the defendants' land holding, subject matter of CS(OS)
3434/2012.
9. Mr. Diwan Singh Chauhan, learned counsel for the defendant
No.2(Sher Singh) clarifies that just as the defendants in
CS(OS)No.1965/2009 have no interest in the land holding, subject
matter of the said suit, similarly the defendants No.1 to 3 in CS(OS)
3434/2012 do not have any interest in the land holding, subject
matter of the said suit.
10. Mr. Mohit Chaudhary, counsel for the plaintiffs in CS(OS)
1965/2009 clarifies that the dispute is only with regard to the identity
of the land and that too due to the confusion created by the
defendants who have filed an incorrect site plan in the suit filed by
them {CS(OS) No.3434/2012}, where the land belonging to his clients
has been shown as contiguous to the land of Sher Singh, whereas the
correct layout of the land holding is reflected from the extract of the
Aks Shijra filed by him at page 38 of the list of documents dated
20.9.2009, in CS(OS) 1965/2009.
11. Mr. Chauhan, counsel for Sher Singh states that he has no
quarrel with the location of the land holding of the plaintiffs and that of
the defendants as shown in the Aks Shijra prepared by the revenue
authorities, attached at page 38 of the list of documents filed by the
plaintiff in CS(OS) No.1965/2009.
12. In view of the aforesaid position, nothing further survives for
adjudication in both the suits. Accordingly, with the consent of the
parties CS(OS)No.1965/2009 is decreed in favour of the plaintiffs and
the defendants are restrained from entering into, dispossessing or
attempting to dispossess them from the land holding measuring 1
bigha 16 biswas, comprised in Khasra No.20/1 situated in village
Jeevanpur @ Johripur, Delhi. Similarly, CS(OS) No.3434/2012 is
decreed in favour of the plaintiff restraining the defendants No.1 to 3
from dispossessing the plaintiff, entering into, dispossessing or
attempting to dispossess him from the land holding measuring 11
bighas comprised in Khasra No.3/10 (4-16), 3/11 (4-16) and 3/20/2
(1-08) situated in village Jeevanpur @ Johripur, Delhi or any part
thereof.
13. Counsel for the plaintiff in CS(OS)No.3434/2012 states that in
view of the order passed above, he does not wish to press the suit
against the defendant No.4.
14. Accordingly, both the suits, along with the pending applications,
are disposed of in terms of the orders passed herein above, while
leaving the parties to bear their own expenses. It is however clarified
that this Court has not endorsed the site plan filed by the plaintiff in
CS(OS)No.3434/2012 and the identity of the land holding, subject
matter of both the suits, shall be derived from the revenue records of
Village Jeevanpur @ Johripur, Delhi, maintained by the revenue
authorities.
15. Decree sheet be drawn accordingly.
16. Files be consigned to the record room.
HIMA KOHLI, J
SEPTEMBER 23, 2015/sk/rkb/ap
