* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Judgment: 01.02.2011
+ R.S.A.No.20/2011 & C.M.Nos.2121-22/2011
ASHOK KUMAR ...........Appellant
Through: Mr.Surender Kumar Gupta,
Advocate.
Versus
MCD & ANR. ..........Respondents.
Through: Nemo.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J. (Oral)
CM No.2122/2011 (for exemption)
Allowed subject to just exceptions.
R.S.A.No.20/2011 & C.M.No.2121/2011
1. This appeal has been filed against the impugned judgment
and decree dated 03.11.2010 which had endorsed the findings of
the trial Judge dated 03.11.2009 wbereby the suit of the plaintiff
Ashok Kumar seeking permanent injunction against the Municipal
Corporation of Delhi (defendant No. 1) and MCD Slum & JJ Colony
Department (defendant No. 2) was dismissed. This finding of the
trial Judge was affirmed in the appeal Court.
2 The plaintiff is stated to be the proprietor of Ashoka General
RSA No.20/2011 Page 1 of 4
Store, Khokha No. 4, near Municipal Corporation Primary School,
new Seelampur, Delhi. In 1962, the father of the plaintiff namely
Daulat Ram had been allotted this khokha in terms of an allotment
order dated 22.09.1976 (Ex. PW-1/4); in lieu of a benefit of a
sterilization scheme. The contention of the plaintiff was that his
father Daulat Ram had participated in the sterilization scheme; he
had voluntary tendered himself for sterilization; in view thereof he
had been allotted this khokha. After the death of his father in 1986,
the plaintiff Ashok Kumar was legally entitled to retain possession
of this khokha. Reliance has been placed on Ex. PW-1/4 to
substantiate his submission that the act of the defendant in
threatening to demolish this khokha is unwarranted; a decree of
permanent injunction had been sought.
3. The defendants in their written statement had denied the
contention raised by the plaintiff; defendant No. 1 had stated that
the plaintiff is an encroacher upon the MCD land, MCD is legally
entitled to remove this khokha. Stand of defendant No. 2 was also
by and large same.
4. On the pleadings of the parties, the following five issues were
framed:-
1 Whether the suit is not maintainable for want of
statutory notice u/s 477/478 of the DMC Act? OPD.
2 Whether the suit is without any cause of action and
same is liable to be rejected u/o7 Rule 11 CPC? OPD
3 Whether this suit is bad for mis-joinder and non-joinder
of necessary parties? OPD
4 Whether the plaintiff is entitled for a decree of
permanent injunction as prayed for? OPP.
5 Relief.
RSA No.20/2011 Page 2 of 4
5. Oral and documentary evidence was led by the
respective parties. The allotment letter dated 22.09.1976 had
been proved as Ex. PW-1/4. Death certificate of the father of
the plaintiff had been proved as Ex. PW-1/5. PW-2 had been
summoned from the Slum & JJ Department, MCD. PW-2 had
deposed that these colonies were developed by the DDA and
the plots were allotted by them; Slum & JJ Department did
not have any such policy as it is only managing these
colonies; the allotment as summoned is not available in their
office. Even in the subsequent statement of PW-2 recorded
pursuant to an application filed by the plaintiff seeking his
resummoning, he had deposed on oath that the copy of
allotment letters issued to Faqir Mohammad, Prabhati Lal,
Radheshyam and Hazmat Ali allotted under the sterilization
scheme was available; he had produced the record pertaining
to shops No.2, 3, 6, 9, 10, 11, 12, 13, 17, 18, 19 & 20; copy of
the allotment letters had been exhibited as Ex. PW-2/3 to Ex.
PW-2/7. The case of the plaintiff is that he had been allotted
Khokha No. 4 at New Seelampur. The record produced by
PW-2 was of Nehru Market; he had categorically stated that
this is only known as Nehru Market; he had denied the
suggestion that Nehru Market also known as Nasbandi
Market.
6. Admittedly the record which the plaintiff had sought to
prove could not be produced and had not been proved in the
version of PW-2. The Courts below had rightly held that the
plaintiff was claiming a discretionary and equitable relief of
injunction, he had to show some kind of a right or title to the
RSA No.20/2011 Page 3 of 4
property before an injunction could be granted to himespecially in view of the stand of the defendants wherein they
had stated that the plaintiff is an encroacher simplicitor, on
the land of the Government. Admittedly, the land belonged to
the MCD.
7. Provisions of Sections 41 (h) and 38 of the Specific
Relief Act had also been adverted to as also the judgment
reported in AIR 2008 SC 2033 Anathula Sudhakar Vs. Buchi
Reddy.
8. In this case, there was a cloud over the title of the
plaintiff; he has failed to prove his legal right over the said
land rightly disentitling him to the relief of injunction. The
plaintiff had failed to show his interest qua the suit land. This
Court is not a third fact finding Court. It can interfere in the
findings of the court below only if the same are perverse. No
such perversity has been pointed out. Substantial questions
of law have been formulated at page 1. They all border on the
document Ex. PW-1/4. This document had not been proved.
Both the courts below had rightly not granted the relief
prayed for by the plaintiff. No substantial question of law has
arisen.
9. Appeal as also pending applications are dismissed in
limine.
INDERMEET KAUR, J.
FEBRAURY 01, 2011
a
RSA No.20/2011 Page 4 of 4