Delhi High Court
Anil Sharma vs Chaudhary Ravinder Kumar on 6 February, 2017
$~12
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: February 06, 2017
+ RSA 337/2016
ANIL SHARMA ..... Appellant
Through: Mr.Tanuj Khurana & Mr.Ankur
Gupta, Advocates
versus
CHAUDHARY RAVINDER KUMAR ..... Respondent
Through: None
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
JUDGMENT (Oral)
1. This Regular Second Appeal under Section 100 of the Code of Civil
Procedure, 1908 is filed impugning the concurrent decision of the two courts
below; i.e. judgment dated 26th May, 2016 passed by the First Appellate
Court in RCA No.4/2014 and judgment dated 26th November, 2013 passed
by the learned Trial Court in Civil Suit No.807/2009 by which the suit of the
appellant/plaintiff seeking a decree for permanent injunction has been
dismissed in respect of the property described as Bhagwati Mandir, B-34,
Govind Mohalla, Haiderpur, Delhi-42.
2. Mr.Tanuj Khurana, learned counsel for the appellant has submitted
that both the Courts below vide their concurrent judgments had committed
illegality in going into the title of the appellant/plaintiff in respect of the suit
property. He further contended that as the appellant/plaintiff is in possession,
the suit simplicitor for injunction was maintainable. Since the cause of action
pleaded in the suit was about the interference caused by the
respondent/defendant by removing the sign board of Mandir, obstructing the
devotees having access to the Mandir from the main road, such type of
interference in the lawful possession of the appellant/plaintiff could have
been injuncted by a decree for permanent injunction for which suit
simplicitor for injunction was maintainable.
3. In support of his submissions, learned counsel for the appellant has
relied upon a decision of Hon'ble Supreme Court reported as Anathula
Sudhakar Vs. P.Buchi Reddy (Dead) by LRs & Others; (2008) 4 SCC 594.
4. I have considered the submissions made by the learned counsel for
the appellant. The plaint of Civil Suit No.807/09 is annexed with this appeal
as Annexure A-2. The averments made in the plaint are to the following
effect:-
(i) The plaintiff is owner and in adverse possession of property namely
Bhagwati Mandir, B-34, Govind Mohalla, Haiderpur, Delhi-42 since the
year 1976.
(ii) Plaintiff had constructed a Mandir in the said property in the year
1981 by his own funds and he is Mahant/Pujai of the said Mandir till date.
(iii) The defendant is residing in the adjoining property. The gate of the
Mandir is on the main road and being used by all the devotees since the date
of construction of the said Mandir.
(iv) The defendant had previously affixed an iron railing in the open space
on the road for which he filed two Civil Suits impleading MCD as a party.
After the MCD removed the encroachment, he withdrew both the suits on 5th
November, 2009.
(v) On 5th November, 2009 itself, in the evening, the defendant along with
his associates threatened the plaintiff to close the main gate of the Mandir
and removed the sign board but could not succeed due to intervention of
neighbours. Complaint was made to DCP, Ashok Vihar on 6 th November,
2009.
(vi) The prayer made in the civil suit was to restrain the defendant and his
associates, representatives for closing the door of the temple and removing
the sign board of the temple known as Bhagwati Mandir.
5. The suit was contested taking the plea that earlier suits were filed by
the plaintiff claiming himself to be the owner. In this suit he took the plea
of ownership by way of adverse possession. The construction raised by the
plaintiff was on public land by encroaching 20 feet wide road and only a
small idol of Goddess Kali Maa has been placed in one room and that no
threat was ever extended by him.
6. Learned Trial Court vide its judgment dated 26th November, 2013
dismissed the suit observing that the appellant/plaintiff claimed the source of
his title on the basis of document exhibit PW-1/1 executed by Smt.Laxmi
Devi who herself had no title in the suit property. She herself was an illegal
occupant and could not have conveyed a better title to the appellant/plaintiff.
The site plan exhibit PW-1/D-1 also proved that the suit property was on a
periphery outer road and it is borne out from the record that the plaintiff is in
occupation in a 15½ feet road. The construction raised by him is a kind of
road block which cannot be constructed with legal sanction. Granting of an
injunction in such type of case would signify that the plaintiff has any
interest over the suit property or legitimizing his possession which cannot be
permitted.
7. Learned Trial Court also examined the case of the plaintiff dehors the
above facts and held that the plaintiff being a rank trespasser does not have a
locus standi to file the suit.
8. The First Appellate Court vide impugned judgment dismissed the
appeal observing that the construction was raised on a piece of public land
and plea of adverse possession can only be taken as a shield of defence and
dismissed the first appeal.
9. Reliance placed by the learned counsel for the appellant on the
decision reported as Anathula Sudhakar Vs. P.Buchi Reddy (Dead) by LRs
& Others; (2008) 4 SCC 594 is of no assistance to the appellant/plaintiff as
the question here is not whether suit for injunction simplicitor was
maintainable. There is concurrent findings of the facts by the Courts below
that the appellant/plaintiff has encroached upon the public land.
10. It is trite that a person who has no legal right to stay in the suit
property is not entitled to the discretionary relief of injunction
because grant of injunction is a discretionary relief as per Section 36 and 38
of Specific Relief Act, 1963.
11. Both the Courts below have rightly held that mere possession of suit
property does not entitle the appellant/plaintiff, who is a trespasser, to
discretionary relief for injunction which cannot be granted in favour of a
trespasser on a public land.
12. In Premji Ratansey Shah and Others Vs. Union of India and Others
(1994) 5 SCC 547, the Hon'ble Supreme Court has time and again
emphasized that the discretionary relief of injunction should not be granted
to a trespasser more so a person, who is a trespasser on a public land.
13. In view of the above, no substantial question of law arises under
Section 100 of Code of Civil Procedure and the appeal is dismissed.
PRATIBHA RANI
(JUDGE)
FEBRUARY 06, 2017/'pg'
