Delhi High Court
Ashok Atree vs Municipal Corporation Of Delhi & ... on 8 February, 2019
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 116/2019
% 8th February, 2019
ASHOK ATREE
..... Appellant
Through: Dr. Farrukh Khan and Mr.
M.Sadiq Khan, Advocates.
versus
MUNICIPAL CORPORATION OF DELHI & ANR.
..... Respondents
Through: Mr. Bijay Aroraa & Mr. Kapil
Dutta, Adv. for SDMC.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No. 5920/2019 (exemption)
1. Exemption allowed subject to just exceptions.
C.M. stands disposed of.
RFA No. 116/2019 and C.M. No. 5919/2019 (stay)
2. This Regular First Appeal under Section 96 of the Code
of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit
impugning the Judgment of the trial court dated 22.11.2018 by which
the trial court has dismissed the suit for injunction filed by the
appellant/plaintiff seeking rights in a 15 ft. strip of land comprised in
Khasra no. 403, Village Masjid Moth, New Delhi. The trial court has
held that the appellant/plaintiff is not the owner of the suit land and in
fact the appellant/plaintiff is guilty of encroachment of suit land which
is a public land, and this encroachment which was done by the
appellant/plaintiff with his brother was removed on 20.08.2004, but
once again the appellant/plaintiff has thereafter encroached upon the
public land. The earlier encroachment made was removed by
respondent/defendant on 20.08.2004 after the suit filed by the brother
of the appellant/plaintiff, Sh. Krishan Gopal Atree, and who lives in
the same premises as that of the appellant/plaintiff, was dismissed in
default with respect to the same suit premises/land resulting in
vacation of the injunction obtained by Sh. Krishan Gopal Atree, and
also the application for restoration of the suit was also dismissed.
3. The facts of the case are that the appellant/plaintiff
pleaded that the appellant/plaintiff is the owner of the subject land,
being a 15 ft. wide strip of land falling in Khasra No. 403 of Village
Masjid Moth, New Delhi, and adjoining to the east side of the
residence of the appellant/plaintiff. The appellant/plaintiff with his
other brothers is the owner of and residing in House No. 282, Village
Masjid Moth, New Delhi, and this 15 ft. strip of land adjoins two
public parks located on the two sides of the Property No. 282, being
the North side and the South side of the Property No. 282 of the
appellant/plaintiff and his brothers. The appellant/plaintiff pleaded that
his grandfather Pandit Leela Ram was owner of some land in Khasra
Nos. 404 and 405 and he had formed a colonising company M/s LMG
Colonisers Pvt. Ltd. which had created a residential colony. This
residential colony which was developed, is R-Block, South Extension
Part-II, New Delhi, the colony included the land falling in Khasra No.
405. Pandit Hukum Chand was the son of Pandit Leela Ram and the
appellant/plaintiff is the son of Pandit Hukum Chand. It was pleaded
that in 1977, there was a family settlement between Pandit Hukum
Chand and his sons whereby the Property No. 282, of Village Masjid
Moth was also partitioned in four parts. It was pleaded that the
Property No. 282 abuts on a 15 ft. wide road (disputed land) towards
the East of the property and that this strip of land is used by the
appellant/plaintiff and the other family members through the gates
installed in the Property No. 282. It is pleaded that this disputed 15 ft.
strip of land never formed a part of the lay-out plan of the colony and
this land always remained in the possession of the appellant/plaintiff
and his brothers, and before them, their forefathers. It was pleaded
that in 1994, there was an inter se dispute between the brothers of the
appellant/plaintiff resulting in a suit being filed by Sh. Krishan Gopal
Atree against Sh. Harish Chand Atree and the Municipal Corporation
of Delhi (MCD) bearing Suit No. 2675/1994. It was pleaded that in
the above mentioned suit, a Local Commissioner was appointed who
submitted her Report dated 20.12.1994 in favour of the brother, Sh.
Krishan Gopal Atree, who was found to be in possession of the 15 ft.
wide disputed land. The suit filed by the brother of the
appellant/plaintiff was however ultimately dismissed in default and it
was stated that the MCD Officials made an attempt on 20.08.2004 to
demolish the boundary wall and the grills installed in front of the suit
property owned by the appellant/plaintiff and his brother. The
appellant/plaintiff pleads that he was told later on that his brother had
obtained a stay in the suit, and which did not survive any more as the
restoration application of the brother, Sh. Krishan Gopal Atree, under
Order IX Rule 9 CPC was dismissed by the court of Sh. Rakesh
Kapoor, ADJ, Delhi on 11.04.2005 and therefore, MCD was free to
demolish the wall in front of the property of the appellant/plaintiff and
his family members. It is also pleaded that there was a Demarcation
Report dated 08.07.1974 which showed the possession of the suit
property in favour of the father of the appellant/plaintiff and as
recorded by the revenue officials. It was further pleaded that the suit
land did not form a part of the Lay-Out Plan of the colony approved
by the Standing Committee of the MCD on 28.03.1960. Pleading that
there is an immediate threat of demolition to the wall in the side,
abutting the 15 ft. wide strip, and further, the MCD threatening to take
illegal possession of this disputed 15 ft. wide area, the subject suit was
filed.
4. The respondents/defendants-MCD contested the suit and
filed its written statement. The MCD has pleaded that the suit was
barred by res judicata/constructive res judicata as earlier a suit was
filed by the brother of the appellant/plaintiff, Sh. Krishan Gopal Atree,
which was dismissed in default and the restoration application filed by
Sh. Krishan Gopal Atree was also dismissed in default. It was pleaded
that thereafter the subject suit has been filed by the appellant/plaintiff
in connivance with his brother, but the suit was filed only after the
officials of the MCD had already taken action on 20.08.2004 taking
into its possession the suit land in question, however, the
appellant/plaintiff and his brother have again tried to encroach upon
the suit land. The application for restoration of the suit filed by Sh.
Krishan Gopal Atree was said to have been dismissed vide Order
dated 11.04.2005 by the court of Sh. Rakesh Kapoor, ADJ, Delhi. It
was also pleaded that under the garb of the subject suit, and which is
only for permanent injunction, the appellant/plaintiff is claiming
declaration of his ownership rights in the suit property, and the same
cannot be allowed. It was pleaded that the appellant/plaintiff has not
filed any ownership documents of the suit property. It was also
pleaded that an FIR No. 547/1994 dated 25.11.1994 under Sections
447/427 of the Indian Penal Code, 1860 had been registered at the
Police Station: Defence Colony against the brother of the
appellant/plaintiff, Sh. Krishan Gopal Atree, for demolition of the wall
of the park and for making unauthorized installation of gates in the
park of the MCD. It was pleaded that the appellant/plaintiff and his
brothers are encroachers of public land and the suit be therefore
dismissed. It was further pleaded that neither the appellant/plaintiff
nor his brother or any other person has any right to open a gate into
the municipal park being a 15 ft. wide strip, and this 15 ft. wide strip
joins the two public parks which fall on the two sides of the Property
No. 282 owned by the appellant/plaintiff and his brothers.
5. The trial court framed the following issues:-
"(i) Whether the Plaintiff is entitled to the relief of injunction?
OPP.
(ii) Whether the suit property forms part of Municipal Park, as
alleged in the written statement? OPD.
(iii) Whether the present suit is barred by res judicata? OPD
(iv) Whether the present suit is barred under section 447/478 of the
Delhi Municipal Corporation Act, 1957? OPD
(v) Is the suit barred by limitation? OPD
(vii) Relief(s)."
6. The evidence which was led by the parties is as recorded
in paras 4 and 5 of the impugned judgment, and these paras read as
under:-
"4. The plaintiff has examined himself as PW1 and besides the affidavit
in evidence as Ex. PW1/A, has tendered into evidence the following
documents i.e. site plan of the property is Ex. PW1/1; the layout plan is
Ex. PW1/2; the development plant is Ex. PW1/3; the true Khasra
Girdwari with its true translation of the said khasras issued on
06.03.1974 is Ex. PW1/4; Khasra Girdawari issued on
16.03.1975 is Ex. PW1/5; photographs of the property are
Ex.PW1/6, Ex. PW1/7, Ex. PW1/8, Ex. PW1/9, Ex. PW1/10
& Ex.PW1/11. The negatives of the said photographs is Ex.
PW1/12 (colly); the certified copies of the report of Ld. Local
Commissioner are Ex. P-3 & Ex P-4, copy of the order dated 30.11.1994
of the Hon'ble High Court is Ex. PW1/3; the demarcation report is
Ex. PW1/14; survey report of the suit property is Ex. PW1/15; house tax
receipt is Ex P1; copy of the election I-card is Mark-A; Original Icard
lost receipt at PS: Hauz Khas vide NCR No: 3094/2012 is Ex.PW1/18;
Adhar Card is Ex. PW1/19.
(ii) The plaintiff has also examined Sh. Devi Ram from the office of
Tehsil Mehrauli, New Delhi as PW2.
(iii) The plaintiff has also examined Sh. Komal Sharma from the BSES
Office, A-1/27, Safdarjung Enclave, New Delhi as PW3, who tendered
the attested copies of the electricity bill dated 03.10.12, the application
for transfer of connection dated 26.06.2013 along with supporting
affidavit and annexures, which were collectively exhibited as Ex.
PW3/1 (colly).
(iv) The plaintiff has also examined Sh. Jagbir Singh, LDC, Record
Keeper, A&C Department, South Zone, Sector 9, R.K. Puram, New
Delhi as PW4.
(v) The plaintiff has also examined Sh. Ashok Kumar,
Kanoongo, Record Room, SDM Office, Mehrauli as PW5.
All the witnesses were cross examined and were discharged.
5. The defendant has examined Sh. Jaivir Singh, Assistant Director,
Horticulture Central Zone as DW1 who tendered his affidavit
into evidence as Ex. DW1/A along with the documents i.e. copy of the
layout plan attested by Deputy Town Planner, Land as Mark-A; copy of
the handing over / taking of possession documents of the park in
question dated 20.11.1973, attested by Assistant Director,
Horticulture as Ex. DW1/1; attested copy of list of parks in New Delhi
South Extension part-II, transferred from south zone to central zone
(duly attested by Assistant Director Horticulture) as Ex.DW1/2;
Photocopy of inventory register of the park in question handed
over from south zone to central zone on 18.04.1995 as MarkB, certified
copy of order dated 09.02.2004 passed by Learned District
Court in suit no: 2675/1994 as Ex. DW1/6; copy of order dated
11.04.2005 passed by Hon'ble Court in suit no: 2675/1994 as Ex.
DW1/4.
Defendant has also examined Sh. Mahesh Chand, planning
surveyor from the office of Chief Town Planner, SDMC, Head Quarter,
Civic Center, Minto Road, New Delhi as DW2 and has tendered the
attested copy of the lay out plan of South Extension Area near Village
Masjid Moth, New Delhi as Ex. DW2/1 (OSR).
The witnesses were cross examined and discharged, thereafter,
the evidence of the defendants was closed vide separate statement of the
defendant."
7. The first aspect which in the opinion of this Court clearly
goes against the appellant/plaintiff is that appellant/plaintiff can claim
rights to the suit land which falls in Khasra No. 403 only, and only if
the appellant/plaintiff was able to file documents to show ownership
of Khasra No. 403 of the appellant's/plaintiff's family or that of his
forefathers, but admittedly no document whatsoever has been filed to
show that Khasra No. 403 ever vested or was in the ownership of the
appellant's/plaintiff's family or their forefathers. As per the
documents filed by the appellant/plaintiff, being the Khasra
Girdawaris, the suit land is shown to be in ownership of the abadi of
village Masjid Moth i.e. land is owned by the entire population of the
Village Masjid Moth, and thus resulting in the suit land being village
common lands, known as shamlat deh land in Delhi. After passing of
the Delhi Land Reforms Act, 1954, the ownership of the village
common lands stood vested in the Central Government as per Section
7 of the Delhi Land Reforms Act. In any case, the ownership of the
Khasra No. 403 by the entire abadi/population of Village Masjid Moth
cannot mean that the appellant/plaintiff or his family members or their
forefathers were ever the owners of land in Khasra No. 403.
8. I may note that even the case of the appellant/plaintiff is
that his grandfather Pandit Leela Ram was the owner of some lands in
Khasra Nos. 404 and 405 i.e. not in Khasra No. 403. Accordingly,
once the appellant/plaintiff or his family members or their forefathers
were not the owners of the suit land, hence, they have no entitlement
to claim possession of the suit land which is vacant/open land.
9. In my opinion, trial court has also rightly held that the
simpliciter suit for permanent injunction filed by the appellant/plaintiff
was not maintainable in view of the fact that the appellant's/plaintiff's
ownership of the suit land was seriously disputed. Once there are
serious disputes as to the ownership of the suit land, and this issue of
ownership has to be decided by the trial court, then a simpliciter suit
alleging settled possession when the possession of the
appellant/plaintiff is not established on record, did not lie and hence,
the trial court was justified in holding the simpliciter suit for
permanent injunction as not maintainable in view of the ratio of the
judgment of the Hon'ble Supreme Court in the case of Anathula
Sudhakar v. P. Buchi Reddy (Dead) by LRs. and Others, (2008) 4
SCC 594. The Hon'ble Supreme Court in the case of Anathula
Sudhakar (supra) speaking through Hon'ble R.V. Raveendran, J. has
exhaustively laid down the principles as to when a suit for injunction
simpliciter is maintainable and the relevant paras of said judgment
laying down the ratio are paras 13.1 to 13.3, 14, 15 and 16, and these
paras read as under:-
"13.1. Where a plaintiff is in lawful or peaceful possession of a
property and such possession is interfered or threatened by the defendant, a
suit for an injunction simpliciter will lie. A person has a right to protect his
possession against any person who does not prove a better title by seeking
a prohibitory injunction. But a person in wrongful possession is not
entitled to an injunction against the rightful owner.
13.2 Where the title of the plaintiff is not disputed, but he is not in
possession, his remedy is to file a suit for possession and seek in addition,
if necessary, an injunction. A person out of possession, cannot seek the
relief of injunction simpliciter, without claiming the relief of possession.
13.3 Where the plaintiff is in possession, but his title to the property
is in dispute, or under a cloud, or where the defendant asserts title thereto
and there is also a threat of dispossession from the defendant, the plaintiff
will have to sue for declaration of title and the consequential relief of
injunction. Where the title of plaintiff is under a cloud or in dispute and he
is not in possession or not able to establish possession, necessarily the
plaintiff will have to file a suit for declaration, possession and injunction.
14. We may however clarify that a prayer for declaration will be
necessary only if the denial of title by the defendant or challenge to
plaintiff's title raises a cloud on the title of plaintiff to the property. A
cloud is said to raise over a person's title, when some apparent defect in his
title to a property, or when some prima facie right of a third party over it,
is made out or shown. An action for declaration, is the remedy to remove
the cloud on the title to the property. On the other hand, where the plaintiff
has clear title supported by documents, if a trespasser without any claim to
title or an interloper without any apparent title, merely denies the plaintiff's
title, it does not amount to raising a cloud over the title of the plaintiff and
it will not be necessary for the plaintiff to sue for declaration and a suit for
injunction may be sufficient. Where the plaintiff, believing that defendant
is only a trespasser or a wrongful claimant without title, files a mere suit
for injunction, and in such a suit, the defendant discloses in his defence the
details of the right or title claimed by him, which raises a serious dispute
or cloud over plaintiff's title, then there is a need for the plaintiff, to amend
the plaint and convert the suit into one for declaration. Alternatively, he
may withdraw the suit for bare injunction, with permission of the court to
file a comprehensive suit for declaration and injunction. He may file the
suit for declaration with consequential relief, even after the suit for
injunction is dismissed, where the suit raised only the issue of possession
and not any issue of title.
15. In a suit for permanent injunction to restrain the defendant from
interfering with the plaintiff's possession, the plaintiff will have to
establish that as on the date of the suit he was in lawful possession of the
suit property and defendant tried to interfere or disturb such lawful
possession. Where the property is a building or building with appurtenant
land, there may not be much difficulty in establishing possession. The
plaintiff may prove physical or lawful possession, either of himself or by
him through his family members or agents or lessees/licensees. Even in
respect of a land without structures, as for example an agricultural land,
possession may be established with reference to the actual use and
cultivation. The question of title is not in issue in such a suit, though it
may arise incidentally or collaterally.
16. But what if the property is a vacant site, which is not physically
possessed, used or enjoyed? In such cases the principle is that possession
follows title. If two persons claim to be in possession of a vacant site, one
who is able to establish title thereto will be considered to be in possession,
as against the person who is not able to establish title. This means that
even though a suit relating to a vacant site is for a mere injunction and the
issue is one of possession, it will be necessary to examine and determine
the title as a prelude for deciding the de jure possession. In such a
situation, where the title is clear and simple, the court may venture a
decision on the issue of title, so as to decide the question of de jure
possession even though the suit is for a mere injunction. But where the
issue of title involves complicated or complex questions of fact and law, or
where court feels that parties had not proceeded on the basis that title was
at issue, the court should not decide the issue of title in a suit for
injunction. The proper course is to relegate the plaintiff to the remedy of a
full-fledged suit for declaration and consequential reliefs."
(Underlining Added)
10. Once the appellant/plaintiff and his family members and
their forefathers were not the owners of the suit land, and the suit land
is an open strip of land, the observations made by the Hon'ble
Supreme Court in para 16 of the judgment in the case of Anathula
Sudhakar (supra) squarely applies that possession follows title. The
appellant/plaintiff having failed to prove title of his family and their
forefathers in the suit land, hence, the appellant/plaintiff also cannot
claim to be in settled possession of the same.
11. The doctrine of settled possession for protecting of the
same has been exhaustively dealt with by the Hon'ble Supreme Court
in the case of Rame Gowda (Dead) By Lrs. v. M. Varadappa Naidu
(Dead) By Lrs. and Another, (2004) 1 SCC 769. It has been
categorically held by the Hon'ble Supreme Court in this judgment that
to be in settled possession, the occupant must have come into
possession with the acquiescence of the owner. In the present case,
there is no evidence that the MCD/Union of India ever gave its
consent or acquiescence for the appellant/plaintiff or his family
members and forefathers to be in possession of the suit land. The
relevant paras of the judgment in Rame Gowda's case (supra) are
paras 8 to 10, and these paras read as under:-
"8. It is thus clear that so far as the Indian law is concerned, the
person in peaceful possession is entitled to retain his possession and in
order to protect such possession he may even use reasonable force to
keep out a trespasser. A rightful owner who has been wrongfully
dispossessed of land may retake possession if he can do so peacefully
and without the use of unreasonable force. If the trespasser is in settled
possession of the property belonging to the rightful owner, the rightful
owner shall have to take recourse to law; he cannot take the law in his
own hands and evict the trespasser or interfere with his possession. The
law will come to the aid of a person in peaceful and settled possession by
injuncting even a rightful owner from using force or taking law in his
own hands, and also by restoring him in possession even from the
rightful owner (of course subject to the law of limitation), if the latter has
dispossessed the prior possessor by use of force. In the absence of proof
of better title, possession or prior peaceful settled possession is itself
evidence of title. Law presumes the possession to go with the title unless
rebutted. The owner of any property may prevent even by using
reasonable force a trespasser from an attempted trespass, when it is in the
process of being committed, or is of a flimsy character, or recurring,
intermittent, stray or casual in nature, or has just been committed, while
the rightful owner did not have enough time to have recourse to law. In
the last of the cases, the possession of the trespasser, just entered into
would not be called as one acquiesced to by the true owner.
9. It is the settled possession or effective possession of a person
without title which would entitle him to protect his possession even as
against the true owner. The concept of settled possession and the right of
the possessor to protect his possession against the owner has come to be
settled by a catena of decisions. Illustratively, we may refer to Munshi
Ram v. Delhi Admn., Puran Singh v. State of Punjab and Ram Rattan v.
State of U.P. The authorities need not be multiplied. In Munshi Ram
case it was held that no one, including the true owner, has a right to
dispossess the trespasser by force if the trespasser is in settled possession
of the land and in such a case unless he is evicted in the due course of
law, he is, entitled to defend his possession even against the rightful
owner. But merely stray or even intermittent acts of trespass do not give
such a right against the true owner. The possession which a trespasser is
entitled to defend against the rightful owner must be settled possession,
extending over a sufficiently long period of time and acquiesced to by
the true owner. A casual act of possession would not have the effect of
interrupting the possession of the rightful owner. The rightful owner may
re-enter and reinstate himself provided he does not use more force than is
necessary. Such entry will be viewed only as resistance to an intrusion
upon his possession which has never been lost. A stray act of trespass, or
a possession which has not matured into settled possession, can be
obstructed or removed by the true owner even by using necessary force.
In Puran Singh case the Court clarified that it is difficult to lay down any
hard and fast rule as to when the possession of a trespasser can mature
into settled possession. The 'settled possession' must be (i) effective, (ii)
undisturbed, and (iii) to the knowledge of the owner or without any
attempt at concealment by the trespasser. The phrase "settled possession"
does not carry any special charm or magic in it; nor is it a ritualistic
formula which can be confined in a strait-jacket. An occupation of the
property by a person as an agent or a servant acting at the instance of the
owner will not amount to actual physical possession. The Court laid
down the following tests which may be adopted as a working rule for
determining the attributes of "settled possession":
(i) that the trespasser must be in actual physical possession of the
property over a sufficiently long period;
(ii) that the possession must be to the knowledge (either express of
implied) of the owner or without any attempt at concealment by the
trespasser and which contains an element of animus possidendi. The
nature of possession of the trespasser would, however, be a matter
to be decided on the facts and circumstances of each case;
(iii) the process of dispossession of the true owner by the trespasser
must be complete and final and must be acquiesced to by the true
owner; and
(iv) that one of the usual tests to determine the quality of settled
possession, in the case of culturable land, would be whether or not
the trespasser, after having taken possession, had grown any crop. If
the crop had been grown by the trespasser, then even the true
owner, has no right to destroy the crop grown by the trespasser and
take forcible possession.
10. In the cases of Munshi Ram and Puran Singh the Court has
approved the statement of law made in Horam v. R. wherein a distinction
was drawn between the trespasser in the process of acquiring possession
and the trespasser who had already accomplished or completed his
possession wherein the true owner may be treated to have acquiesced in;
while the former can be obstructed and turned out by the true owner even
by using reasonable force, the latter may be dispossessed by the true
owner only by having recourse to the due process of law for re-acquiring
possession over his property."
(Emphasis Supplied)
12. It is noted that it has been deposed to by the witness, Sh.
Jaivir Singh, who deposed as DW-1 for MCD, that the earlier suit filed
by the brother of the appellant/plaintiff was dismissed in default and
the restoration application was dismissed on 11.04.2005. The Orders
dismissing the suit on 09.02.2004 and dismissing the restoration
application on 11.04.2005 have been filed and proved on record as Ex.
DW1/6 and Ex. DW1/4. The present suit was filed by the
appellant/plaintiff barely around two weeks after the dismissal of the
restoration application in the earlier suit on 11.04.2005. The present
suit has been filed on 23.04.2005.
13. In my opinion, the trial court has rightly rejected the
Local Commissioner's report filed in the earlier suit between the
brothers of the appellant/plaintiff and the MCD, inasmuch as the
report of possession will not show settled possession for the settled
possession to be a legal right, and to avoid repetition, reference is
invited to the ratio of the judgment of the Hon'ble Supreme Court in
the case of Rame Gowda's case (supra), and more so with the fact
that the appellant/plaintiff and his family members never had any title
to the land comprised in Khasra No. 403, with also the fact that the
suit land being open land, possession follows title in view of the ratio
of the judgment in the case of Anathula Sudhakar (supra).
14. In my opinion, the trial court has very thoroughly and
exhaustively in detail dealt with all the aspects in paras 6 to 14 of the
impugned judgment, and these paras are reproduced as under:-
"6. My issue wise findings are as under:-
I have taken up all the issues for discussion together the issues being
interrelated and inter linked having consequential bearing on each
other. I note at the outset that suit of the plaintiff is for preventive relief and
not any declaratory decree. Plaintiff claims that the plaintiff along with his
three brothers is in possession of house bearing no: 282, Village Masjid
Moth as absolute owners, and that the four brothers pursuant to a family
settlement have partitioned the property bearing no. 282, Village
Masjid Moth and are in possession of their respective portions. I may
also note, at the outset, that it is not the entire property bearing on. 282,
Village Masjid Moth that is the subject matter of the dispute. It is a portion
of the property bearing no. 282, Village Masjid Moth falling on the
eastern end towards the 15 feet wide road that is in dispute as the
defendant alleges that a portion of the MCD Park has been encroached upon
by the plaintiff by raising a wall and an iron gate. It is the case of the
plaintiff that the premises in question abuts on to the fifteen feet wide road
on the front side of the property falling on the eastern side, which the
plaintiff describes as front set back which is the point of access and entry
into the property where a gate along the boundary wall is installed and has
been in existence since the very beginning and is the only reasonable
access to the property, and that the defendants are liable to be
restrained from raising a boundary wall blocking the access of the property
in question to the 15 feet wide road on the eastern side of the property and
from interfering and causing any obstruction in the peaceful possession &
enjoyment of the "front set back" in the eastern side of the property in
question. The plaintiff alleges that the front set back of the property in
question belongs to the plaintiff and his brothers and has been in their
settled possession through their forefathers and it was never a
part of Municipal Park. The defendant on the other hand contends that the
plaintiff/occupants of property in question have encroached upon
portion of MCD park by raising a wall, that the land in question has always
been a part of a Municipal/public park in the ownership control
& Management of the defendant and is not a part of the property in
question and the plaintiff has no right to carve out a passage or to open a
gate into the said Municipal public park and that MCD has taken action in
respect of the encroachments made by the plaintiff and his brothers on MCD
land on 20.08.2004 and taken into possession the land in question however
the plaintiff and his brothers have again re-entered / encroached upon the
land in question.
7. Injunctions are issued towards preventive relief. A
perpetual injunction may be granted to the plaintiff to prevent the breach of
an obligation existing, whether expressly or by implication in his favour and
where the defendant invades or threatens to invade the plaintiffs right to or
enjoyment of the property a court may grant a perpetual injunction, where
there exists no standards of ascertaining the actual damage or where
compensation in money would not afford adequate relief and the
injunction is necessary to prevent a multiplicity of judicial
proceedings. The obligation may arise from contract, or may be in the nature
of a trust, or an obligation the breach of which amounts to a tort or
civil wrong or any other legal obligation. An injunction will be
granted if it is the only means of enforcing a right and where damages may
be an adequate remedy court may not grant an injunction or restrain an
actionable wrong. It is not in every case where the plaintiff's right to
property is invaded that a perpetual injunction will be granted. Injunction
may be granted where the value or utility of the property itself or the very
existence of the property, is threatened. There must, however, be a right to,
or enjoyment of property. The plaintiff must show his title to property in
order to claim injunction. Where he has title, and possession, he is entitled
to injunction that his possession shall not be disturbed. Where
there is an invasion of the plaintiff's right to or enjoyment of property an
injunction may be granted only in the four cases mentioned in
clauses (I)-(iv) of sub-section (3) of Section 38 of the Specific Relief Act.
The preventive relief in the manner of prohibitory, mandatory
injunction is discretionary relief and the discretion is guided by
the provisions of the Specific Relief and particularly as contained
under Section 38 of the Specific Relief Act which is reproduced here under:-
Perpetual injunction when granted:- (1) subject to the other
provisions contained in or referred to by this chapter, a
perpetual injunction may be granted to the plaintiff to
prevent the breach of an obligation existing in his favour,
whether expressly or by implication.
(2) when any such obligation arises from contract,
the court shall be guided by the rules and provisions
contained in Chapter II.
(3) When the defendant invades or threatens to invade the
plaintiff's right to, or enjoyment of, property, the court
may grant a perpetual injunction in the following cases,
namely:-
a) where the defendant is trustee of the property for the
plaintiff;
b)where there exists no standard for ascertaining the
actual damage caused, or likely to be caused, by the
invasion;
c) where the invasion is such that compensation in money
would not afford adequate relief;
d) where the injunction is necessary to prevent a multiplicity
of judicial proceedings.
In a suit seeking the grant of prohibitory injunction against the defendant, it
is for the plaintiff to establish the existence of the right the infringement
of which is to be prevented by way of a prohibitory injunction,
or the obligation existing in favour of the plaintiff breach of which is to
be plugged by way of a perpetual injunction and the right to the property
sought to be invaded by the defendant, enjoyment of which is to be secured
by restraining the defendant from doing any such act as would interfere with
the right of the plaintiff in the property.
8. It is the case of the plaintiff that property bearing no. 282, Village
Masjid Moth is ancestral property owned by the plaintiff and his three
brothers acquired by their forefathers. This property fell in the abadi deh,
Lal Dora of village Masjid Moth. There was a family settlement amongst
the brothers and the property bearing no. 282, Village Masjid Moth was
partitioned in four parts and the portion falling in the rear end came
into the plaintiff's possession. The plaintiff contends that the rear end
portion, the eastern end of this property opens into / abuts onto a 15 ft. vide
road that is the only point of reasonable access to the property in
question. The said property as per the case of the plaintiff falls in the abadi
deh of Village Masjid Moth, Khasra No. 403 and Khasra Nos. 404 and 405
are the adjacent lands. The plaintiff alleges that the grandfather of the
plaintiff Sh. Leela Ram owned lands in Khasra No. 404 and 405 also and he
had set up a company under the name and style of LMG Developers and
Colonisers to carve out a colony on the land falling in Khsra NO. 405. The
colony so developed by Pt. Leela Ram now constitutes part of south
extension part-II, new Delhi. Out of the land owned in Khasra No. 405, 2
bighas 19 biswas was transferred in favour of the said company and 5
biswas land was retained by him. The plaintiff has relied upon Khasra
Girdawari of Village Kotla Mubarakpur to show that Khasra No. 403, is
the abadi deh occupied by abadi of Masjid Moth, Khasra No. 404, is owned
by Leela Ram and is also in his possession and Khasra No. 405 is in
ownership and in possession of LNG coloniser out of which 0-5 biswas
was in possession of the grandfather of the plaintiff and the rest of 02
bigha19 biswas was in possession of LMG Colonisers. The revenue record
confirms the plaintiff's assertion. The Khasra Girdawari in respect of Village
Mubarakpur Kotla, Tehsil Mehrauli reflects that Khasra No.403 is occupied
by the abadi of Village Masjid Monto, Khasra No.404 is owned by Sh.
Leela Ram and is in his possession and that Khasra no. 405 is owned by
LNG Colonisers, out of which 05 biswas is in the possession of Hukam
Chand and the balance land of Khasra no. 405 is in the possession of LNG
Colonisers Ltd. Revenue entries however are not proof of title. So far as
Khasra No. 405, is concerned 05 biswa is recorded in the revenue entries to
be in the possession of Sh. Hukam Chand though the ownership of
the entire Khasra is recorded in favour of LNG Colonisers Ltd. As per
the revenue entries therefore the predecessor in title of the plaintiffs is not
recorded as the owner of any portion of Khasra No. 405.
9. The mode of acquisition of land in the said Khasra Nos. is neither
averred not attempted to be proved. So far as the property in question is
concerned it falls in the Khasra No. 403, Khasra Nos. 404 & 405 are
adjacent to the property in question. No title documents, record of any kind
in respect of the property in question is relied upon by the plaintiff. The area
of the property in question is nowhere alleged or affirmed by the
plaintiff. The plaintiff alongwith his brothers are in possession of their
respective portions, the respective portions are shown in different colors in
the site plan of the property in question, however the dimensions, the
total area of property bearing no. 282, village Masjid Moth, New
Delhi is not stated anywhere. The assertion as regards actual area in
occupation, what as per the plaintiff is the area of the property in question is
of particular relevance, for the entire property is not in dispute but only a
portion thereof which the plaintiff refers to as the "front set back on the
eastern end" which as per the plaintiff abuts on to a 15 feet wide road and
separates the property in question from R Block on the other side of the road
of South Extension-II. The plaintiff alleges that on the North and South of
the property fall two separate chunks of MCD Parks, separated by the
property in question. The defendants on the other hand contend that the
MCD Park is one continuum from the north end to the souther end alongside
the 15 feet wide road and not two separate portions on the north and south
of the property, divided by the property in question, and that the plaintiff
and the occupants of property in question have encroached upon the land of
the park and constructed a gate. The plaintiff relies upon a layout plan of
South Extension Part-II, a demarcation report and the report of the court
commissioner appointed in a suit for preventive relief instituted by one of
brothers of the plaintiff for the same relief in respect of the property in
question against the present defendant alongwith others.
10. The layout plan filed by the plaintiff has been retraced from the
original plan. The plaintiff has not examined the draftsman who has retraced
the layout plan. Further the property in question is shown in a broken line
that extends upto the 15 feet wide road on the eastern side. It is not
explained as to why the property in question is shown in a broken line and
as to whether in the original lay out plan also the property in question is
shown in a broken line. The plaintiff has failed to prove the layout plan
relied upon by him. Moreover, the layout plan is incomplete and the
property in question is shown in a broken line thereby indicating that it is
not a true trace of the original. Who traced the layout plan, whether it was
traced in the presence of the plaintiff are essential assertions to render the
tracing admissible in evidence. Mere exhibition thereof is not sufficient for
the Court to draw any inference in respect of the status of the property in
question. The defendant has also filed the layout plan tendered as Mark A
and has examined the planning surveyor from the office of Chief Town
Planner SDMC to prove the layout plan of South Extension area near village
Masjid Moth which is tendered as Ex. DW2/1. The layout plan Ex. DW2/1
depicts that beyond the property in question lies a park of the MCD Park
which connects the MCD Park on the two sides, the North and the South
side of the property in question. There is no break visible in the MCD Park
on the North and South side of the property in question. The MCD Park on
the North side continues by a narrow stretch along the eastern side
of the suit property extending on to the Southern side of the suit
property. The 15 feet wide road does not touch the suit property but lies
beyond the stretch of the MCD Park.
11. The plaintiff has further relied upon a demarcation report dated
08.07.1974. The document reveals that the demarcation is carried out on
the application of the father of the plaintiff for demarcation of Khasra No.
546/404, 547/404 and 405 of Village Kotla Mubarakpur. The property in
question as per the own case of the plaintiff falls in Khasra No. 403. The
demarcation report is not in respect of Khsara No. 403 in which the property
in question is situate. Possession of the father of the plaintiffs is recorded on
4¾ biswa of the vacant land in Khasra No. 405 and 1½ biswa of land in
Khasra no.403. It is also recorded in the demarcation report relied upon by
the plaintiff that the application for demarcation pertains to 4 ¾
biswa land falling in Khasra No. 405 and 1½ biswa of land that falls in
Khasra No. 403 is not part of the application for demarcation and the report
and the site plan are prepared after demarcation of Khasras 404 and 405.
There is no reference of a 15 feet wide road abutting the property in
question in the demarcation report. The survey report that the plaintiff relies
upon is also inconclusive as it records that the West side of the house no.
282 falls in Khasra No. 403 in the Lal Dora (old badi) of village masjid
moth but the length of the house on west to east is much more than east to
west and therefore it cannot be ascertained without khasra girdawari and
demarcation as to whether the east part of the house is in lal dora or falls in
some other Khasra No. or how much of the part of the house number 282
falls in Khasra no. 403 of Lal Dora. This report is dated 15.03.2005.
12. The plaintiff further relies upon report of the Local
Commissioner appointed by the Hon'ble High Court of Delhi in Suit No.
2675/94. The plaintiff has not proved the report by examining the author
thereof. It is not alleged that report was prepared in the presence
of the plaintiff. As per the own contention of the plaintiff, plaintiff was not a
party to the said proceedings. The proceedings in which the report is filed
did not culminate into the final adjudication on merits as per the own case of
the plaintiff as the said suit was dismissed in default, there is therefore no
findings on merit recorded on the strength of the said report. The plaintiff on
the strength of the incomplete trace of the lay out plan, Khasra Girdawaris,
demarcation report dated 08.07.1974, survey report dated 15.03.2005 has
failed to demonstrate the existence of any right in the plaintiff to occupy and
possess the disputed portion on the eastern end of the property in question.
None of the documents indicate the dimensions of the property in
question and do not support the claim of the plaintiff that the property
bearing no. 282, Masjid Moth, abuts on to the 15 feet wide road on its
eastern end. The four brothers have partitioned the property in question so
that the plaintiff's portion falls on the rear end to the east. To the West the
property in question opens onto and lies along the street lane. It is not that
the property in question has no point of ingress and egress except on its
eastern end via gates A and B. The contention of the plaintiff that plaintiff
has easementary rights over the disputed portion is also misplaced. It is one
thing to exercise a right over the property of another towards a
more beneficial enjoyment of one's own property and it is another matter
all together to claim absolute ownership thereupon. It is not the
case of the plaintiff that though the land in dispute is part of
MCD Park, however, for the beneficial enjoyment of its own property
bearing no.282, Masjid Moth, the plaintiff is entitled to use the part of the
MCD Park for ingress and egress as the said portion has been in use as such
for over 30 years or time immerial. The case of the plaintiff is that the
portion in dispute constitutes part of property bearing no. 282, Masjid Moth.
In the exercise of easementary rights, the plaintiff, on the subservient
heritage cannot claim the right to raise a wall and erect iron gate and prevent
the MCD to construct boundary wall. Easement and encroachment are
not interchangeable concepts. The plaintiff denies any right / title
of the MCD and claims absolute title in himself alongwith his
brothers, through his forefathers. The documentary evidence that
the plaintiff relies upon does not substantiate this claim of the
plaintiff. The plaint has to stand on its own legs. In case the plaintiff could
demonstrate the semblance of any right / title / interest over the disputed
portion, then only the onus would have shifted on the defendant to
demonstrate that the disputed portion is part of MCD Park. The defendant
has proved the layout plan of South Extension-II, Village Masjid which
reflects that the property bearing no. 282, Masjid Moth, does not abut on to
the 15 feet wide road. For the failure of the plaintiff to lead any cogent,
credible documentary evidence, and on the strength of the layout plan filed
by the defendant, issue no. 2 is liable to be answered against the plaintiff
and in favour of the defendant.
13. So far as the report of the Court Commissioner filed in the
proceedings instituted by the brother of the plaintiff is concerned no
preventive relief is capable of being determined in favour of the plaintiff
on the strength of the report of Court Commissioner appointed in
earlier proceedings, however, the said proceedings in the course of which
the Court Commissioner was appointed and report was filed in themselves
have significant bearing on the determination of the entitlement of the
plaintiff to the preventive relief being claimed by the plaintiff.
The said suit registered as CS No. 282/03 was instituted by the
brother of the plaintiff and co-occupant of the premises in question. It is
a suit for permanent injunction against defendants including MCD
for restraining the defendants from raising obstructions to the plaintiff
from entering upon the passage as shown in the site plan from gate at point
B and from raising any boundary wall in front of the said gate. The
relief sought is reproduced hereunder:-
"pass a decree of permanent injunction in favour
of the plaintiff and against the defendants
restraining the defendants, their servants and agents
from raising obstruction to the plaintiff to enter
upon the passage shown in red in the site plan filed
with the suit plaint from the gate market at point
B at property bearing municipal no. 282, Village Masjid
Moth, New Delhi, the defendants be further restrained
from raising any boundary wall in front of the said gate."
The said suit against MCD was instituted by the brother of the
plaintiff, a co-occupant of the premises in question alleging that the
defendant no. 3 / MCD has made a false complaint on
29.11.1994 against him alleging that the plaintiff has demolished the wall of
the park located on the southern side as the plaintiff intended to raise
construction and that the plants in front of the property had been burnt
alleging that the wooden gate at point B was always in existence and was
replaced recently with iron gate, a false complaint was instituted by twisting
the facts that there was a door in the wall and now iron door was
being affixed and FIR No. 547/94 was registered. It was alleged that
no portion of the park falls in front of the property in question on the eastern
side, and that in October /November the plaintiff had widened the gate from
6 feet to 16 feet and instead of wooden gate had installed new iron gate. FIR
was registered that the plaintiff has affixed a big gate in the said park and
demolished the wall of the park and was blocking the entry of the
municipal staff to the park and destroying trees and plants in the park. The
MCD started claiming that the space between point A and B is part of
municipal park. Plaintiff contended that the said space was the front set
back of the property in question and not part of the municipal
park. MCD threatened to raise a boundary wall right across point B. The suit
was instituted on such cause of action registered as CS (OS) 2675/94 on
29.11.1994 for restraining the MCD from raising the boundary wall
across the point B. MCD had contested the said suit on the ground that the
plaintiff the brother of the present plaintiff, had raised unauthorized
construction of a wall on municipal land and is trying to lay claim on public
land and perpetuate his illegal user of the same. Status quo in respect of the
suit property was directed to be maintained. The said suit was dismissed in
default on 09.02.2004. An application for restoration of the suit was filed
which was dismissed on11.04.2005. The present suit is instituted
on 23.05.2005.
14. The present suit is again for the same preventive relief against the
MCD on the same grounds filed by a co-occupant of the same property and
the portion of the property disputed is also the same. The plaintiff derives
the cause of action for the present suit w.e.f. 19.04.2005 i.e. immediately
after the dismissal of the suit for the same preventive relief filed by
the plaintiff's brother, a co-occupant of the property in question when
allegedly MCD officials came to the property in question and started taking
measurements. The plaintiff himself has disclosed the details of the Civil
Suit filed by the plaintiff's brother for the same preventive relief as is sought
in the present suit in respect of the same portion of the property in question.
The plaintiff himself discloses that the said suit was dismissed in
default and he came to know that the application for restoration of the said
suit has also been dismissed. MCD alleges that action in accordance
with law was taken and the wall raised by plaintiff / occupants of
property bearing no. 282, Masjid Moth, was demolished and that the MCD
Park was again encroached upon by the plaintiff and his brother, however
the record in respect of the action taken is not brought on the record. That a
similar contention was raised to rebut the application for restoration of the
suit instituted by the plaintiff's brother which was dismissed in default, and
on such contentions the application for restoration was successfully resisted
is not proof of the action taken in accordance with procedure
established by law. Be that as it may, what I find particularly relevant is the
own statement of the plaintiff in paragraph 10 of the plaint to the effect that
prior to 1994 MCD had never claimed any right in the suit property. As per
the own case of the plaintiff MCD is asserting its ownership since 1994. The
plaintiff is aware that the previous suit against the MCD for permanent
injunction restraining MCD from interfering in the peaceful possession /
raising a wall in the portion of the property in question was dismissed in
default and the restoration application was also dismissed. Though the
defendant has failed to produce the record in respect of any action against
the encorachment, however, the own documents relied upon by the plaintiff,
the suit filed by the plaintiff's brother for the same relief reveals that FIR
against the plaintiff's brother in respect of the encroachment on MCD land
has been got registered by MCD, under such facts and
circumstances it was encumbant upon the plaintiff to have sought a
declaration in respect of the status / right in the disputed property and a suit
simplicitor for preventive reliefs without an adjudication on the substantive
rights of the disputing parties is not amenable, for the occupants of
property bearing no. 282, Masjid Moth cannot be permitted to
perpetuate their possession by filing suits one after the other for preventive
reliefs without seeking declaration of their right, title and entitlement and
determination of their substantive rights as owners entitled to possession of
the disputed property, the portion of the property that MCD is disputing
since 1994 to be a portion of MCD Park. On these grounds, I find that the
suit of the plaintiff simplicitor for permanent injunction is liable to be
dismissed. Issue no. 1 is answered accordingly."
(Underlining Added)
15. It is also required to be noted that respondent/defendant
had filed a lay-out plan of the colony of South Extension as Ex.
DW2/1 and this plan Ex. DW2/1 showed that the strip of land was a
connecting portion of land between two public parks which fell to the
North and South side of the Property No. 282 of the appellant/plaintiff
and his family members. The site plan Ex. DW2/1 clearly records that
there is a continuous strip which joins the two public parks on the North
and South side of the Property No. 282, and therefore, the strip of land
was a continuous piece of land adjoining two public parks.
16. In view of the aforesaid discussion, the suit and the present
appeal filed by the appellant/plaintiff is an abuse of the process of law.
The suit is in continuation of the illegal litigation initiated by the
appellant/plaintiff and his family members inasmuch as the subject suit
was filed on 23.04.2005, after the earlier suit filed by the brother of the
appellant/plaintiff, Sh. Krishan Gopal Atree, was dismissed and
restoration application was also dismissed, thereby the ex parte stay was
vacated. The MCD thereafter on 20.08.2004 demolished the illegal
boundary wall made by the appellant/plaintiff and his family members,
but once again the appellant/plaintiff has encroached upon public land.
The subject litigation has now been pending since 1994, and today we
are in the year 2019 i.e. the MCD has been burdened with this illegal
litigation of the appellant/plaintiff and his family members since around
25 years and for these 25 years the appellant/plaintiff and his family
members have illegally used the land under false interim orders obtained
by them. This appeal, therefore, being a gross abuse of the process of law
is dismissed with costs of Rs. 5,00,000/- payable to respondent/defendant
inasmuch as it is found that the appellant/plaintiff and his family
members including the brother have resorted to false litigation to
encroach and take possession of valuable public land. In fact, such
circumstances of seeking encroachment on public lands have now
become a serious malaise in the society and it is necessary that the courts
come down with heavy hands on such unscrupulous persons who try to
encroach upon public property. This Court in fact was inclined to, but
which has not been done, to award costs of Rs. 25,00,000/-, being Rs.
1,00,000/- for each year, and which would have compensated the
respondent/defendant in some way as damages for the illegal occupation
of the suit land.
17. In view of the aforesaid discussion, there is no merit in the
appeal. Dismissed. All pending applications are also disposed of.
FEBRUARY 08, 2019/ Ne VALMIKI J. MEHTA, J
