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Shri Mange Ram Gupta Vs. New Delhi Municipal Committee - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtDelhi High Court
Decided On
Case NumberRSA No. 6/81
Judge
Reported in2002IVAD(Delhi)973; 99(2002)DLT129; 2002(63)DRJ51
ActsMotor Vehicles Act; Specific Relief Act - Sections 41; Punjab Municipal Act, 1911 - Sections 56 and 173; Code of Civil Procedure (CPC) - Sections 100 - Order 10, Rule 2; Urban Land Ceiling (Regulations) Act
AppellantShri Mange Ram Gupta
RespondentNew Delhi Municipal Committee
Appellant Advocate L.R. Gupta, Sr. Adv. and; J.N. Aggarwal, Adv
Respondent Advocate Alpana Poddar and ; Manisha Singh, Advs.
DispositionAppeal dismissed
Excerpt:
.....- - 1 and 6 holding that the plaintiff had failed to establish that he was a tenant of the disputed piece of land or had become owner thereof by way of adverse possession but still on the strength of the finding on the other issues the trial court restrained the respondent ndmc from disturbing the possession of the plaintiff over the suit premises except by due process of law. even assuming that the aforesaid statement of the plaintiff can be read into the plaint, it is to be seen if this plea has been substantiated by means of cogent and reliable evidence. even if this description of the tenanted premises is to be believed on its face value, it would at best show that besides three rooms in front and two garages at the back there is open compound in the front and rear. their..........a triangular piece of land measuring about 45 square yards exists in front of premises no. 7., tolstoy lane, new delhi is the subject matter of this second appeal which has been directed against the judgment of the learned additional district judge, delhi dated 16-9-1980 whereby the appeals filed by the respondent ndmc have been allowed and cross-objections filed by the appellant herein have been accordingly disposed of.2. the appellant herein had filed a suit for perpetual injunction against the respondent ndmc for restraining them from interfering with the possession and enjoyment of a peace of land measuring 45 square yards approximately, allegedly forming part of 78 tolstoy lane, new delhi. the suit was filed with the averments that the appellant was a lessee of premises no. 78,.....
Judgment:

R. C. Jain, J.

1. A triangular piece of land measuring about 45 square yards exists in front of Premises No. 7., Tolstoy Lane, New Delhi is the subject matter of this second appeal which has been directed against the judgment of the learned Additional District Judge, Delhi dated 16-9-1980 whereby the appeals filed by the respondent NDMC have been allowed and cross-objections filed by the appellant herein have been accordingly disposed of.

2. The appellant herein had filed a suit for perpetual injunction against the respondent NDMC for restraining them from interfering with the possession and enjoyment of a peace of land measuring 45 square yards approximately, allegedly forming part of 78 Tolstoy Lane, New Delhi. The suit was filed with the averments that the appellant was a lessee of premises No. 78, Tolstoy Lane, New Delhi and the aforesaid piece of land is a part of the leased premises and the appellant had been carrying on the business of repairing motor vehicles at the said premises for the last 35 years. In the year 1961-62 he was prosecuted under the provisions of Motor Vehicles Act for parking motor vehicles in a 'no parking' zone but was acquitted on his plea that the disputed piece of land formed part of his workshop. It was further alleged that on 22-9-1972 some employees of the respondents NDMC came to the workshop of the appellant and forcibly removed rear seat of a car parked on the triangular plot holding out that it was Municipal land and the appellant had no right or authority to park vehicles there. The said act of the NDMC was stated to be illegal and mala-fide an interference in the rightful continuous use and enjoyment of the piece of land by the appellant in his own right by way of adverse possession. The suit was contested by the respondent NDMC challenging the very maintainability of the suit in view of the provision of Section 41 of the specific relief Act and Section 173 of the Punjab Municipal Act, 1911 for the purpose of seeking equitable relief of injunction and alleging that the appellant is an encroacher on the public passage or the open piece of land which is part of road berm vesting in the respondent NDMC. It was denied that the appellant had any right of title to use the said piece of land or he had been in exclusive possession thereof. It was additionally pleaded that it was the statutory duty of the NDMC to remove the encroachers and take action under Section 173 of the Punjab Municipal Act, 1911 and, thereforee, no restriction or injunction as sought for by the plaintiff-appellant could be granted.

3. On the pleadings of the parties the following issues were framed:-

1. Whether the plaintiff is the tenant of the disputed land ACBDEA shown in Ext.C1 as alleged by him. If so its effect? OP.

2. Whether the said disputed land ABCDEA shown in Ex.C1 forms part of the road berm? Its effect? OD.

3. Whether the plaintiff is entitled for any injunction?

4. Whether the suit is barred by Section 173 of the Punjab Municipal Act?

5. Relief.

6. Whether the plaintiff has become owner of the disputed land by way of adverse possession? OP.

4. Both the courts below have returned concurrent finding on issues No.1 and 6 holding that the plaintiff had failed to establish that he was a tenant of the disputed piece of land or had become owner thereof by way of adverse possession but still on the strength of the finding on the other issues the trial court restrained the respondent NDMC from disturbing the possession of the plaintiff over the suit premises except by due process of law. Learned Additional District Judge sitting as first appellate court confirmed the finding of the learned trial court on issues No. 1 and 6 dismissed the suit holding that plaintiff had no right, title or interest in the disputed piece of land entitling him to any injunction. Aggrieved by the said judgment and decree the appellant has come in this appeal.

5. This second appeal was admitted for hearing vide order dated 19-8-1981 in order to consider the following question of law:-

'1) Whether in the facts and circumstances of this case, the appellant herein can be held to be a tenant?

2) Whether in the facts and circumstances of this case it has been proved that the NDMC is the owner of the land in question?

6. I have heard Mr. L.R. Gupta, Senior Advocate appearing on for the appellant and Ms. Alpana Poddar representing the respondent-NDMC and have given my thoughtful consideration to their submission. In support of his contention that the disputed piece of land is part and parcel of the premises No. 78, Tolstoy Lane, New Delhi and the appellant is its tenant and the respondent-NDMC is not the owner thereof, learned counsel for the appellant has mainly referred to the statements of various witness and some documents with a view to show that the findings of facts recorded by the courts below are not based on proper appreciation of the evidence and material brought on record. IN this connection he has first of all referred to the examination of the plaintiff recorded on 6-4-1974 under the provisions of Order X Rule 2 of the Civil Procedure Code which reads as under:-

'That the disputed land is shown under red colour and has been marked by letters A.B.C.D.E. and A in site plan Ex.C.I. I am tenant of premises No. 78, Tolstoy Lane, New Delhi under Lala Pratap Singh and Major General Varinder Singh s/o Shri Raghbir Singh. The said disputed land also forms part of the tenanted premises 78 Tolstoy Lane. The said disputed land is owned by L. Pratap Singh and Major General Varinder Singh son of Raghbir Singh. The 'nala' in Ex.C.I. terminates at AB and ED. Ab and ED are the blind ends of 'nala'. After AB towards sought or after ED towards north the 'nalas' do not flow through any portion of the disputed land shown under red colour. In Ex.C.I. the flow of the 'nala' at AB and ED have been shown by arrow heads.

It may be noted that issue No.1. 'whether the plaintiff is the tenant of the disputed land ACBDEA shown in Ex.C1 as alleged by him. If so, its effect' was framed but the said issue was struck off by the trial court without recording any finding on the premise that neither plaint nor amended plaint contain any plea to the affect that the plaintiff was the tenant of the dispute piece of land. This plea was taken only in his statement recorded under Order X Rule 2 of the Civil Procedure Code and, thereforee, was not a part of the pleadings. According to the learned court the pleadings meant plaint and the written statement only. Learned counsel for the appellant has assailed this finding and urged that the statement of a party recorded under the provisions of Order X is a part of the pleadings. In this connection he has placed reliance upon a decision of the Allahabad High Court in Miss Talat Fatima Hasan vs . His Highness Nawab Syed Murtaza Ali Khan Sahib Bahadur and others, : AIR1997All122 wherein the Court has as under:-

'A statement of a party, its counsel or agent under Order 10 Rule 2 C.P.C. is for all practical purposes a part of pleading, and is binding of the party, who makes it or on whose behalf it is made. Where a person holding the General Attorney of the Plaintiff make a statement, to the effect that 'in the ex Rampur State there was no written law but there was only a custom that the eldest son would succeed as the Nawab of Rampur; the eldest son was also recognised as heir apparent from the time of his birth..........' the plaintiff is bound by that statement in absence of any evidence to indicate that the statement is erroneous. The burden no doubt was on the defendant to establish his plea of succession by eldest son, but the same stood discharged when his contention was not challenged in accordance with law, as contained in the relevant rules of Order 8 of the C.P.C.'

Strictly speaking admission of a party under Order X C.P.C. cannot be substituted for pleading because ;the provision of Order X Rule 2 C.P.C. which are meant for elucidating certain factual position with a view to narrowing down the controversy and it cannot be used to amplify and enlarge the scope of the pleadings by setting up alternate or inconsistent case. Even assuming that the aforesaid statement of the plaintiff can be read into the plaint, it is to be seen if this plea has been substantiated by means of cogent and reliable evidence.

7. The plaintiff has examined as many as 9 witnesses including PW5 Shri B.L. Jaggi Estate Manager of the landlords, Lala Pratap Singh, Major General Varinder Singh in order to show that the disputed piece of land is a part of tenanted premises. The witness undoubtedly made a half-hearted attempt to show that the open piece of land in front of premises No. 78, Tolstoy Lane, New Delhi is a part of the said premises and is under the tenancy of the plaintiff-appellant and it did not belong to the respondent NDMC which had nothing to do with the land and their exist no Municipal drain on the said land. The witness could not withstand the test of cross-examination inasmuch as he had neither seen any title document by which the premises No. 78, Tolstoy Lane was purchased by the landlords, nor did he ever said the lease deed executed by the landlords in favor of the plaintiff. He, However, claimed to have shown this disputed piece of land in the returns filed before the competent authority under the Urban Land Ceiling (Regulations) Act. The witness had no knowledge about the state of affairs prior to 1975. Although it is stated by the plaintiff that a lease deed was executed between him and the landlords Lala Pratap singh and Major General Varinder Singh but none was produced. A number of rent receipts Ex.P6 to P9 issued on behalf of the landlords in respect of the premises, namely, 76 Janpath known as 78 Tolstoy Lane ect., have been brought on record. One such receipt Ex. p-9 dated 23-4-1974 has a writing Ex. P9/A on its back which reads as under:-

' Area in tenancy

3(Three) rooms in front two garages at the back open compound front and rear.

Even if this description of the tenanted premises is to be believed on its face value, it would at best show that besides three rooms in front and two garages at the back there is open compound in the front and rear. On the strength of the above description of the tenancy learned counsel for the appellant urged that the open compound refers to the disputed piece of land. In the opinion of this court, the contention is too far fetched to be accepted because it is not the the case of the plaintiff that the disputed piece of land is the part of the front compound of the premises No. 78, Tolstoy Lane which is bounded by a boundary wall and a gate. The disputed piece of land is admittedly outside the said boundary wall and the gate and, thereforee, by no stretch of imagination it can be said that the said disputed piece of land is a part of 78, Tolstoy Lane and is the subject matter of tenancy in favor of the plaintiff-appellant. It was not difficult for the plaintiff-appellant to produce cogent evidence either from the possession of the landlords or Land & development Office in order to show the extent of area of the premises known as 78, Tolstoy Lane. Adverse inference is liable to be drawn against the plaintiff for non-production of such evidence. The oral testimony of the other witness also falls much short to prove that the disputed piece of land is part of premises No. 78, Tolstoy Lane leased to the plaintiff. Their testimony at best would show a user i.e. the plaintiff-appellant had been using the disputed piece of land for parking/repairing his vehicles during the working hours of the garage. I have, thereforee, no hesitation in holding that the plaintiff-appellant had miserably failed to establish that the disputed piece of land forms part of the tenanted premises.

8. Now coming to the second question, 'whether in the facts and circumstances of this case it has been proved that the NDMC is the owner of the land in question?', the answer is plainly in the negative firstly, because no evidence whatsoever was led on behalf of the respondent NDMC to show that the disputed land is the property of the NDMC. Section 56 of the Punjab Municipal Act, 1911 enjoins the NDMC to maintain a register of immovable properties but no such entries from the register were brought on record and, thereforee, adverse presumption is liable to be drawn for its non-production. However, the question remains as to whether in the absence of such entries of the register, the land in question can be said to be a part of Road berm or passage. As observed by the courts below and as is evident from the site plan filed on record it shows the existence of a drain up to the two ends of the disputed piece of land. Besides its location is outside the boundary wall and gate of premises No. 78 Tolstoy Lane. In view of this position It can be safely inferred that the disputed piece of land is a passage/road berm and nothing else. it is a different matter that the plaintiff had been using it for over several years for the purpose of parking/repairing of his vehicles but that will not cloth the plaintiff with any legal right either to own or possess the said piece of land. The plea of the plaintiff having acquired ownership of the disputed land by along user of more than 30 years could also not be established. As per the plaintiff's own showing the disputed piece of land is not bounded by any boundary wall and it has not been used continuously and uninterrupted by him. It is admitted that public would pass over this piece of land when the vehicles of the plaintiff were not parked and at night time when the piece of land was free from any vehicles and workshop had been closed.

9. Much reliance has been placed from the side of the appellant on two inspection reports and findings recorded by the two Magistrates during criminal proceedings when the plaintiff-appellant was prosecuted for unauthorized parking of vehicles. No doubt these reports and treated as part of Municipal road or road berm but in the opinion of this Court that finding is of no consequence firstly because the NDMC was not a party to those proceedings and secondly the reports and the findings are not binding on the civil court which is supposed to arrive at its own conclusion. On the other hand the prosecution of the plaintiff for unauthorised parking would show that the user of the disputed piece of land by the plaintiff-appellant was not uninterrupted. In any case this cannot amount to hostile, uninterrupted and continuous possession of the plaintiff for a period of more than 30 years over the disputed piece of land.

10. On the face of the above position that neither the plaintiff has been able to prove that the disputed piece of land forms part of the tenanted premises, nor the respondent NDMC could lead any cogent evidence to prove that the land in question belongs to them, the important question is whether the plaintiff is entitled to equitable relief of permanent injunction. Answer would be in the negative because the plaintiff has no right, title or interest in the disputed piece of land user or of the same by him even if it is assumed for a period of 20 to 25 years was absolutely without any authority. Can a wrong doer like the appellant be allowed to seek the protection of court for perpetuating his wrong under the grab of a legal command. The answer would again be a plain 'no'. Injunction is a discretionary relief which will not be granted when it will operate oppressively or inequitable or contrary to the rule of justice. Perpetual injunction can be granted to prevent the preach of an obligation existing in favor of the Plaintiff whether expressly or by implication or when such an obligation arises from a contract. It can also be issued when defendant invades or threatens to invade plaintiff's right to or enjoyment of property when the invasion is such that compensation in money would not afford adequate relief.

11. In the opinion of this Court on the facts and circumstances of the case and the material brought on record, the first appellate court has rightly held that the plaintiff has no vested right over the disputed piece of land and could not make out a case for grant of permanent injunction against the defendant. Besides it is well settled proposition of law that in a second appeal under Section 100 C.P.C. the High Court is not supposed to re-appraise the evidence on record and interface with the findings of fact reached by the courts below on the basis of evidence and material before them.

12. In the result this appeal fails and is hereby dismissed and the judgment and the decree passed by the first appellate court is upheld. Ad interim injunction order dated 6-1-1981 granted by this Court stands vacated. Parties are left to bear their own cost.


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