Delhi District Court
Anil Kumar Jain vs Uoi on 3 March, 2025
IN THE COURT OF MS. NEHA PANDEY, JSCC/ASCJ/GJ
(WEST),
TIS HAZARI COURTS, DELHI.
Suit No.8270/2016
CNR no.DLWT03-000015-1990
1. Shri Anil Kumar Jain
S/o Late Shri Mahabir Pershad
2. Shri Praveen Kumar Jain,
Through its GPA
Shri Anil Kumar Jain
Both R/o House No.61, Gali Khajanchi,
Chandini Chowk,
Delhi-110006. ......Plaintiffs
Versus
1. Union of India
Through its Secretary
Ministry of Urban Development,
Nirman Bhawan, Delhi.
2. Delhi Administration
(a) Through its Lt. Governor
5, Alipur, Road,
Delhi-110007.
(b) Through the Under Secretary(revenue)
Tis Hazari Courts
Delhi-110007.
3. Delhi Development Authority
Through its Chairman,
Department of (NL),
Vikas Sadan, New Delhi.
4. Shri Kundan Lal- deceased
Through his LRs
(Sr. no.a & b substituted
vide order dated 03.03.2005
Anil Kumar Jain & Ors Vs Union of India & Ors. 1 /54
by the court of Shri T.R.Nawal
ADJ, Delhi.
a) Shri Satish Kumar,
b) Shri Baldev Raj,
c/o M/s Friends Motor workshop
Near Hindustan Petroleum
G.T. Raod, Azadpur, Delhi-110033.
5. Gurjeet Singh- deceased
(Sr. no.a to c substituted
vide order dated 05.04.2017
a) Shri Balbir Singh,-son
b) Shri Pritam Kaur-widow,
c) Shri Biljit Kaur- daughter
All r/o 161, Block-A-2, Bhagat colony,
Sant Nagar, Delhi.
6. Shri Gurucharan Singh- deceased
Through his LRs
(Sr. no.a) to (h) substituted
vide order dated 25.07.1994
a) Mrs. Mahinder Kaur- widow
b) Shri Jagtar Singh- son
c) Shri Subhash Singh-son
d) Shri Lakhvinder Singh-son
e) Shri Hardev Singh-
f) Shri Jarnail Singh-son
g) Ms. Gurdeep Kaur- daughter
All R/o A-159, Majlis Park, Adarsh Nagar,
Delhi -110033
h) Smt. Jasbir Kaur- daughter
W/o Shri Gurucharan Singh
R/o Khera Pali colony,
Near Steel Tanki, Jhansi road,
Shivpuri, (M.P)
(Sr. no.6(a) to h substituted
vide order dated 15.07.1994. ......Defendants
Date of Institution : 06.07.1990
Date of final arguments : 24.12.2024
Date of decision : 03.03.2025
Decision : DISMISSED
Anil Kumar Jain & Ors Vs Union of India & Ors. 2 /54
JUDGMENT
SUIT FOR PERMANENT INJUNCTION
Vide this judgment, I shall decide the suit for perpetual
injunction filed by the plaintiffs against the defendants.
PLAINT
1. In brief it is the case of the plaintiffs that originally Shri
Mahabir Pershad Jain (now deceased) s/o late Sh. Paras Das, r/o
House no.61, Gail Khajanchi, Chandni chowk, Delhi-110006
was the owner/landlord and had been in continuous possession
of the land bearing Khasra no.403/90/1 admeasuring 7 Bighas
and 12 Biswas, situated at village Azadpur, Delhi and was
recorded in the Record of Rights pertaining to the aforesaid plot
of land ‘KHUD KHASHT’ in the relevant year 1953-1954. The
possession of the same continued with Late Shri Mahabir
Pershad Jain at all relevant times through his various tenants till
1975. A Civil suit for Declaration bearing no.422/1969 was filed
by said Shri Mahabir Pershed Jain against Gaon Sabha Azadpur
and ors on 10.02.1965 for declaring the vesting of the aforesaid
Land in Gaon Sabha Azadpur as illegal, ultra-vires and without
Jurisdiction, and that said Late Sh. Mahabir Pershad Jain is
entitled to remain in possession of the aforesaid Land as its
proprietor or Bhumidar. The aforesaid suit bearing no.422/1969
was decided on 2.1.1970 from the Hon’ble Court of Sh.Man
Singh Saini, Sub Judge Ist Class, Delhi in favour of said Shri
Mahabir Persbad Jain and against the Gaon Sabha Azadpur and
ors to the effect that the land bearing Khasra no.91 measuring 1
Bigha 1 Bishwa and Khasra no.403/90/ measuring 7 Bigha 13
Anil Kumar Jain & Ors Vs Union of India & Ors. 3 /54
Biswas, totalling 8 Bigha and 14 Biswas situated in village
Azadpur Union Territory of Delhi doos not vest in the Gaon
Sabha Azadpur and its inclusion as the property of Gaon Sabha
is wrong, illegal, Ultra-Vires, Void, without jurisdiction and said
Sh. Mahabir Pershad Jain is entitled to remain in possession of
the suit Land as Proprietor or Bhumidar.
2. Against the said Judgement dated 02.01.1970 the Gaon
Sabha Azadpur and others filed an appeal bearing No.91/1970
against said Sh.Mahabir Pershad Jain. The said appeal was also
dismissed in default of appearance of the Gaon Sabha Azadpur
& Ors on 12.01.1972 by the Hon’ble Court of Sh. B.K.
Agnihotri, Senior Sub Judge at Delhi. Thereafter in view of the
Judgement of the Hon’ble Supreme Court of India Hathi vs
Sunder Singh in 1971 to the effect that the civil Courts has no
jurisdiction in the aforesaid matter, said Sh. Mahabir Pershad
Jain again filed a case bearing no.71/RA/82 & previous no.
25/RA/75) before the Revenue Assisstant, Delhi thereby
declaring himself to be the Owner/Proprietor/Bhumidar of the
aforesaid Land, as no suit for disspossion was filed by Gaon
Sabha Azadpur, Delhi against said Sh. Mahabir Pershad Jain.
During the course of proceedings before the Revenue Assisstant,
said Sh. Mahabir Pershad Jain expired on 28.06.1980, and upon
his death the Plaintiffs being his only two sons, legal heirs and
representatives of said Sh. Mahabir Pershad Jain, filed an
application for their substitution in the aforesaid case in place of
said Shri Mahabir Pershad Jain but the said application was
dismissed by the Hon’ble Court of Shri Nathu Singh, Revenue
Assisstant, Delhi on 29.09.1981 and the suit was also dismissed
Anil Kumar Jain & Ors Vs Union of India & Ors. 4 /54
as abated. Against the said order dated 29.9.1981 the Plaintiffs
filed a Revision before the Hon’ble Court of Financial
Commissioner, Delhi and vide Order dated 7.6.1982 the Hon’ble
Court of Sh. D.K. Dass, Financial Commissioner Delhi allowed
the Revision filed and thereafter the remand tback the matter to
the Hon’ble Court of Shri B.S.Rana, the Revenue Assistant,
Delhi who again dismissed the case. Against the said dismissal
Order of the Hon’ble court of Sh.B.S Rana the Plaintiffs went
into an appeal titled as Anil Kumar Jain and another vs UOI.
3. The said appeal was ultimately decided on 28.07.1988
from the Hon’ble Court of Sh. D.R. Nafri Additional Collector,
Delhi in favour of the Plaintiffs and against Union of India and
others, thereby declaring the Plaintiffs to be the Bhumidars of
the aforesaid land in question u/s 85 of Delhi Land Reform Act
1954. Out of the aforesaid land bearing Khasra no.403/90 certain
portions of the aforesaid land bearing Khasra no.403/90/2
admeasuring 9 Biswas, bearing Khasra no.403/90/2/1
admeasuring 2 Bighas 9 Biswas and bearing Khasra
no.403/90/2/2 admeasuring 10 Biswas, thus totalling 3 Bighas
and 8 Biswas. Most specifically shown in Stripes in the Plan
filed in this suit) were acquired by virtue of Seperate Awards
bearing Nos. 1001, 1545 and 1545 A respectively, leaving
thereby still a remaining portion of the aforesaid Land
admeasuring 4 bighas and 4 biswas to be under the Ownership
and Bhumidari rights of the Plaintiffs.
4. The aforesaid remaining portion of the aforesaid Land at
the present moment, are being occupied and used since the year
Anil Kumar Jain & Ors Vs Union of India & Ors. 5 /54
1950s by various tenants of the plaintiff i.e defendant no.4 to 6.
Recently in the middle of May 1990 the defendants no. 1 to 3
with the help of their respective/agent along with Police
Officials came to the disputed Land and began to demolish
without any just cause the superstructures built over the
aforesaid remaining portion of the said land (most Specifically
shown in red Colour in the siteplan filed in this suit) and which
is under the tenancies of the defendants Nos. 4 to 6. At the
request of the defendants no.4 to 6 to find out the correct legal
position, the defendants no.1 to 3 stopped the demolition of the
superstructures built over the aforesaid land. However the
defendants no.1 to 3 threatened to come again for the aforesaid
purposes. No notice of whatsoever nature in respect of the
aforementioned wrongful and illegal demolition has been served
by the defendants no.1 to 3 either upon the plaintiffs or upon the
defendants no.4 to 6. The defendants no.1 to 3 have no right, title
or interest of whatsoever nature to demolish the surperstructures
built over the aforesaid land and also to disturb the lawful
occupation. Thus the present suit has been filed with the
following prayers:
i) That a decree by way of permanent injunction be
passed against the defendants no.1 to 3 holding the
defendants no.1 to 3 jointly as well as individually liable
for the same and in favour of the Plaintiffs, restraining the
defendants no.1 to 3, their respective agents, employees
and associates from demolishing the various
superstructures built over the aforesaid remaining portion
of land bearing Khasra no.403/90/1 admeasuring. 4
Bighas and 4 Biswas situated at Azadpur VillageAnil Kumar Jain & Ors Vs Union of India & Ors. 6 /54
Delhi(most specifically shown in red Colour in the
siteplan), which is under the ownership, proprietorship
and Bhumidari Rights of the Plaintiffs and which is in the
Lawful occupation and use of the defendants no.4 to 6
within their rights as Tenants in respect of their respective
tenanted portions / Superstructures.
Written Statement of defendant no.1.
5. Written statement was filed on behalf of defendant no.1
whereby stated that the suit is bad for misjoinder of the parties as
Union of India through Delhi Administration through its Lt.
Governor are not the parties to the suit. There is no cause of
action against the answering defendents as the plaintiffs are not
the recorded owner of 4 Bigha and 4 Biswa falling in Khasra
no.403/90/1 as claimed. The petitioner was declared Bhumidhar
of Khasra No. 403/90/1 measuring 3 Bigha add 11 Biswas
Khasra No. 403/90/2/1 (2-9) was acquired under Land
Acquisition Act vide Aw. No. 1545 under the ownership of
Gaon Sabha. Khasra no.403/90/2/2 (0-10) was acquired vide
award no.1545-A under the ownership of Gaon Sabha and
khasra no.403/90/2 (0-9) and (404/90 (0-6) were acquired in
award No.1001. The contention of the plaintiff that remaining
portion of the land remained as 4 Bigha and 4 Biswas under his
Bhumidhari rights is wrong and denied. Also, stated that no
employee of the answering defendents visited the site on the day
and date mentioned by plaintiffs in plaint.
Anil Kumar Jain & Ors Vs Union of India & Ors. 7 /54
Written statement of defendant no.2.
6. Written statement was filed on behalf of defendant no.2
stating that no cause of action has arose, hence the suit deserves
to be dismissed. The suit is bad for non joinder of necessary
party i.e. Gaon Sabha Azadpur. It is further submitted that the
decree of Civil Court is not binding on the Gaon Sabha in view
of the Judgement of Hon’ble Supreme Court of India. It is further
submitted that Shri Mahabir Pershad Jain never remained in
possession of the suit land. Hence the question of filing the suit
u/s 86-A of D. L. R. Act does not arise. Some portion has been
acquired and D.D.A is the owner of the same and the remaining
portion is the property of the Gaon Sabha. That the suit land is
the property of the Gaon Sabha Azadpur and the area of this
village has been urbanised and as such the Deputy
Commissioner is the owner of the land in suit. There is no
necessity of giving any notice because the replying defendants
are the owners of the suit land and can take any legal action
against any person who tried to encroach upon their land.
Written statement of defendant no.3/DDA.
7. Written statement was filed on behalf of defendant
no.3/DDA submitted that the land measuring 7 Bigha 12 Biswas
stands devided into three parts. The land bearing No.403/90/2/1
stands acquired vide award no.1545 and Khasra no.403/90/2/2/
stands acquired vide avard no.1545(A). The possession of both
these khasras was taken any over by the Government and
subsequently placed at the disposal of the DDA through
notifications dated 05.09.1964 and 4.3.1978 respectively. The
land measuring 9 Biswas out of khasra no.403/90/1 was acquired
Anil Kumar Jain & Ors Vs Union of India & Ors. 8 /54
through award No.1001 of village Azadpur for widening of road.
Remaining land measuring 4 Bigha 4 Biswas of Khasra
no.403/90/1 belonged to Gaon Sabha. On organisation of the
Gaon Sabha land, the same vested with the Central Govt. and
thereafter it has been placed at the disposal of the DDA through
a notification dated 20.08.1974. Thus, the plaintiffs have not
come with clean hands and has no locus standi to file the present
suit as they are recent rank tresspasser over the Govt. land,
therefore, the suit is not maintainable. It is submitted that the
DDA was not a party before the revenue court or any Civil Court
case filed by late Shri Mahabir Pershad Jain.
Written statement of defendant no.4 to 6.
8. Written statement was filed on behalf of defendan tno.4
to 6 admitted case of plaintiffs to the extent that previously Shri
Mahavir Pershad was the landlord of the premises under the
tenancy/possession of the answering defendant and they were
inducted as tenants in their respective portions in the fifties and
have been in continuous possession of the same since than as
tenants. They were making the payment of rent previously to
Shri Mahavir Parshad Jain and efter his death to the present
plaintiffs. It is submitted that the answering of defendants were
not party to any proceedings before civil or revenue court. It is
further submitted that they have been carrying on their business
in their respective names and have been using the premises for
commercial purpose. It is also stated that plaintiff no.1 started
issuing receipts in his own name immediately after the death of
Shri Mahabir Pershad Jain of the rents paid to him. DDA or any
other body has no right or title to the suit land.
Anil Kumar Jain & Ors Vs Union of India & Ors. 9 /54
Replication
9. In replication to the written statement of defendants again
the plaintiff reiterated the same facts as stated in plaint and
denied the objections raised by defendant no.1 to 3 regarding
their ownership.
ISSUES
10. On completion of pleadings, the following issues were
framed for trial on 05.08.2024:-
i). Whether the plaintiff is entitled to a decree of permanent
injunction restraining defendants from demolishing the structure
built over remaining portion of land in khasra no.403/90/1
measuring 4 bigha 4 biswas situated at Azadpur, Delhi as shown
in red colour in the site plan?OPP
ii). Whether the land on which the suit shop is built is at the
disposal of DDA vide S.O no. 2190 dated 20.08.1974, if so, its
effect?OPD-3
iii). Whether the land in question on which the Suit Shop is built
comes under khasra no. 403/90/1 and is a private land?OPP
iv). Whether this suit is maintainable in its present form in view
of judgment of Hon’ble Apex Court in case titled as Anathula
Sudhakar Vs. P Buchi Reddy OPP
v). Whether the present suit is barred under Section 53-B of DD
Act?OPD-3
vi). Whether present suit has not been properly valued for the
purpose of court fees and jurisdiction? OPD-3
vii) Relief.
PLAINTIFF EVIDENCE
Anil Kumar Jain & Ors Vs Union of India & Ors. 10 /54
11. In order to prove his case, the plaintiff has examined
himself as PW-1 and he has reiterated the averments of the plaint
by way of affidavit Ex.PW1/A that plaintiff is owner in
possession of land bearing Khasra No.403/90/1 village Azadpur,
Delhi measuring 4 bigha 04 biswas and placed on record.
Certified Copy of the Khatauni and Khasra Girdawari are Ext.
PW.1/1 and PW.1/2. He stated in Ex.Pw1/A i.e avidence
affidavit that the land has already been demarcated by the orders
of the Hon’ble High Court and the land of the plaintiff is
confirmed to be falling in khasra 403/90/1 and at no point of
time DDA had come in possession of the suit land. That
defendants No.1 to 3 including DDA have no right, title or
interest in the suit land. Defendant no.6 Shri Kundan Lal, tenant
of the plaintiff had filed a suit in respect of land under his
tenancy which suit was decreed, Certified copy of the judgment
is Ex. PW.1/5. PW-1 rely upon the following documents-
i) Ex.PW1/1 is the certified copy of the khatoni for the
year 1984-1985.
ii) Ex.PW1/2 is the certified copy of Khasra-Girdawari for
the year 1994-95.
iii) Ex.PW1/3 is the notice u/s 80 CPC addressed to
government authorities dated 19.05.1990.
iv) Ex.PW1/4 registered AD and postal receipt de-
exhibited as Mark -A.
v) Ex.PW1/5 is the certified copy of judgment passed by
Sh. Sudhir Kumar Jain the then Civil Judge dated
13.07.1995.
vi) Ex.PW1/6 is the site plan.
Anil Kumar Jain & Ors Vs Union of India & Ors. 11 /54
vii) Ex.PW1/7 is the certified copy of order of Ld ADM
dated 28.07.1998.
12. PW-1 in his cross examination denied the suggestion that
the entire land in no.403/90/1 is government land. He also
denied the suggestion that he and his tenants are wrongful and
unauthorized encroacher having no legal right on the suit land
which is government land. He further denied the suggestion that
the demarcation has not been done as per the order of Hon’ble
High Court of Delhi dated 28.03.2007 and does not correctly
depict the location of the suit land. He showed ignorance
whether any site plan of the suit land was filed or not and
whether the said site plan was verified by the concerned Patwari
or not. He denied the suggestion that the petition before the Ld
Revenue Assistant was with respect to other land therefore copy
of the said petition has not been filed in this case. He also denied
the suggestion that the aforesaid petrol pumps are constructed
over gramsabha land. He denied the suggestion that Gurjeet
Singh and Gurcharan Singh were not in possession of the suit
land at the time of filing of the petition before the revenue
assistant. He also denied that the site plan Ex.PW1/6 as incorrect
as it does not show the location of the suit land and does not
clearly depict the suit land. He admitted that the dimension of
the land shown in red colour in the site plan Ex.PW1/6 is not
mentioned therein. He denied the suggestion that he have not
shown the structure built on the suit land in the site plan as no
such structure existed at the site at the time of filing of the suit.
He admitted that he was not paying any house tax of the
structure. He denied the suggestion that there was no electricity
Anil Kumar Jain & Ors Vs Union of India & Ors. 12 /54
and water supply at the built up structure at the time of filing of
the suit. He stated that one of the petrol pump was partly
constructed and other two were completely constructed on the
suit land. The witness was shown the site plan EX PW1/6, he
affirms that the land in khasra no 403/90/1 is in between points E
to F marked today on Ex PW 1/6.
13. Another witness PW-2 Deven Naharwal, Patwari SDM
office was a formal witness who brought on record the relevant
entry of khatoni of village Azadpur for the year 1988-1989 and
khatoni for the year 1994-1995 with respect to khasra no
403/90/1. The said khatonies are Ex.PW2/1 and Ex.PW2/2
respectively. He also brought on record the khasra girdavri of the
year 2015-2016 on record of the khasra no.403/90/2/1 and
403/90/2/2 which is Ex.Pw2/3 and stated that there is no record
of khasra girdavri of khasra no 403/90/1 in the year 2015-2016.
Thereafter, PE was closed vide order dated 29.08.2024 on
the statement of counsel for plaintiff and matter was fixed for
DE.
DEFENDANT WITNESS
14. Defendant examined Shri Kunal Kumawat as DW3W-1
and tendered his evidence by way of affidavit Ex.D3W1/A he
reiterated the same facts as in his W.S of DDA and placed on
record the following documents:-
i). Award no. 1545 of village Azadpur is Ex. D3W1/1 (objected
to mode of proof),
ii). Award по 1545A of village Azadpur-Ex. D3W1/2(objected
to mode of proof),Anil Kumar Jain & Ors Vs Union of India & Ors. 13 /54
iii). Notification under Section 22(i) of DD Act dated
05.09.1964- Ex. D3W1/3 (objected to mode of proof),
iv). Notification under Section 22(i) of DD Act dated
04.03.1972- Ex. D3W1/4 (objected to mode of proof),
v). Possession proceedings of award no. 1545 and 1545-A of
Village Azadpur- Ex. D3W1/5 (colly.) (objected to mode of
proof),
vi). Notification no. RNZ/526 dated 23.05.1963 Ex. D3W1/6
(objected to mode of proof),
vii). Notification bearing SO no.2190 dated 20.08.1974 – Ex.
D3W1/7 (objected to mode of proof).
The said witness was cross examined at length by Ld.
Counsel for plaintiff but he being a formal witness who brought
on record above documents, his cross examination herein is thus,
not discussed.
15. Thereafter, DE was closed vide order dated 16.12.2024
and matter was fixed for final arguments.
I have heard arguments advanced by Ld. Counsels for
parties and carefully gone through the record as well as
Judgment cited by the counsels on both sides.
Issue wise findings are as follows:-
16. ( a) Issue no.1 Whether the plaintiff is entitled to a decree
of permanent injunction restraining defendants from demolishing
the structure built over remaining portion of land in khasra
no.403/90/1 measuring 4 bigha 4 biswas situated at Azadpur,
Delhi as shown in red colour in the site plan?OPP.
Anil Kumar Jain & Ors Vs Union of India & Ors. 14 /54
The onus to prove the said issue is upon the plaintiff and
before discussing the evidence pertaining to the present issue
which has been placed on record. It is necesssary to understand
the pleadings specially the plaint filed by plaintiffs herein. The
importance of pleadings has been highlighted by the Hon’ble
Supreme Court of India in a celebrated case of Maria Margadia
Sequeria Fernandes & Ors vs Erasmo Jack De Sequeria (D)
Tr.Lrs.& Ors decided on 21 March, 2012 and the relevant
paragraphs are quoted below:-
61. In civil cases, pleadings are extremely important
for ascertaining the title and possession of the
property in question.
62. Possession is an incidence of ownership and can
be transferred by the owner of an immovable
property to another such as in a mortgage or lease.
A licensee holds possession on behalf of the owner.
63. Possession is important when there are no title
documents and other relevant records before the
Court, but, once the documents and records of title
come before the Court, it is the title which has to be
looked at first and due weightage be given to it.
Possession cannot be considered in vacuum.
64. There is a presumption that possession of a
person, other than the owner, if at all it is to be
called possession, is permissive on behalf of the
title-holder. Further, possession of the past is one
thing, and the right to remain or continue in future is
another thing. It is the latter which is usually more
in controversy than the former, and it is the latter
which has seen much abuse and misuse before the
Courts.
69. The person averring a right to continue in
possession shall, as far as possible, give a detailed
particularized specific pleading along withAnil Kumar Jain & Ors Vs Union of India & Ors. 15 /54
documents to support his claim and details of
subsequent conduct which establish his possession.
70. It would be imperative that one who claims
possession must give all such details as enumerated
hereunder. They are only illustrative and not
exhaustive. Whether he purchased the property or
inherited or got the same in gift or by any other
method;
(g) in case he purchased the property, what is the
consideration; if he has taken it on rent, how much
is the rent, license fee or lease amount;
(h) If taken on rent, license fee or lease – then insist
on rent deed, license deed or lease deed;
(i) who are the persons in possession/occupation or
otherwise living with him, in what capacity;
as family members, friends or servants etc.;
(j) subsequent conduct, i.e., any event which might
have extinguished his entitlement to possession or
caused shift therein; and
(k) basis of his claim that not to deliver possession
but continue in possession.
71. Apart from these pleadings, the Court must
insist on documentary proof in support of the
pleadings. All those documents would be relevant
which come into existence after the transfer of title
or possession or the encumbrance as is claimed.
While dealing with the civil suits, at the threshold,
the Court must carefully and critically examine
pleadings and documents.
76. In pleadings, whenever a person claims right to
continue in possession of another property, it
becomes necessary for him to plead with specificity
about who was the owner, on what date did he enter
into possession, in what capacity and in what
manner did he conduct his relationship with the
Anil Kumar Jain & Ors Vs Union of India & Ors. 16 /54
owner over the years till the date of suit. He must
also give details on what basis he is claiming a right
to continue in possession. Until the pleadings raise a
sufficient case, they will not constitute sufficient
claim of defence.
79. In dealing with a civil case, pleadings, title
documents and relevant records play a vital role and
that would ordinarily decide the fate of the case.
17. In view of the above principles, let us now examine the
case of the plaintiff on the basis of their plaint. Both the
plaintiffs claimed injunction against defendant no.1,2 and 3 on
the basis of the Bhumidari rights derived from their deceased
father Mahabir Pershad Jain. The para no.1 of the plaint stated
that originally Shri Mahabir Pershad Jain was the owner/landlord
and had been in continous possession of the land bearing khasra
no.403/90/1 situated at village Azadpur and was recorded in the
records of right pertaining to the above land as ‘Khud khast’ in
the relevant year of 1953-1954 but there is no document on
record to show the possession of suit property in favor of
plaintiffs or their deceased father since 1953-1954, also no such
record of right pertaining to the said year has been placed on
record. Further the plaintiffs have not examined any witness to
substantiate their claim of possession since 1953-1954 over suit
property. The defendant no.4 to 6 who also claim to be in
possession as tenant since fifties in their WS have also not been
examined by plaintiffs to corroborate the said facts of possession
since 1950s. The document Ex.PW1/1 i.e Khatoni of the year
1984-1985 mentions the name of the plaintiffs for the first time,
also the document Ex.PW1/2i.e Khasra Girdawari pertaining to
year 1994-1995 of Khasra no.403/90/1 is in the name of
Anil Kumar Jain & Ors Vs Union of India & Ors. 17 /54
plaintiffs. Interestingly, the summoned witness i.e PW-2
Halkapatwari also brought on record the document Ex.PW2/2 i.e
Khatoni of the year 1994-1995 pertaining to khasra no.403/90/1
which shows the entry in favour of Ms. Rupam Jain w/o Shri Raj
Kamal made in her favour by way of family settlement by order
of Hon’ble High court of Delhi dated 13.02.1991. The present
plaint is silent as to relation of Ms.Rupam Jain with plaintiffs.
The plaintiffs in plaint claim themselves to be only LRs of
deceased Mahabir Pershad, the status of their mother or any
siblings has not been clearly stated by them which afgain show
the lack of bonafide on their part. Thus, there are two documents
of the same year 1994 and 1995 showing the entry in the name
of different persons. Perusal of said documents shows that the
Bhumidari rights stated to have commenced from 1988-1989
only and thus these documents are self contradictory to the
pleadings of plaintiff whereby they have stated to have that
Bhumirdari rights since 1950. The documents which are on
record filed by plaintiff only show entry in their name in revenue
record, there is no other document w.r.t possession. Para no.2 of
present plaint stated that since year 1950 the various portions of
aforesaid land i.e khasra no.403/90/1 has been let out to various
tenants till 1975 but again no document on record has been filed
with respect to any tenancy rights created by the deceased father
or the plaintiffs in favour of any person moreso defendant no.4,5
and 6 since 1950. The plaintiffs have not examined either of the
said defendants to establish the fact that they are continuing with
the tenancy in the suit land under the plaintiffs. Interestingly the
said defendant no 4 and 5 have also filed seperate suits pending
before this court for same relief of injunction against defendant
Anil Kumar Jain & Ors Vs Union of India & Ors. 18 /54
no1,2and 3 whereby they have stated in their respective plaints
that the present plaintiff Anil jain has colluded with government
officials to disposses them as they refused to increase rent as
desired by Anil jain. This stand of the defendants is different
from stand taken by them in WS filed in present case. Thus,
clearly the defendants no4 and 5 have not been examined by
plaintiffs to avoid embarrasment and thereby further weaken the
plaintiff case.
It is alleged by plaintiffs in the para no.14 of the plaint
that in May 1990 the defendant no.1,2 and 3 with the help of
associates namely Shri Ram Naresh Yadav and Shri Nagar
alongwith the police came to the disputed land and began to
demolish the super structures built over the remaining portion of
said land as shown in red color of site plan Ex.PW1/6 which is
under the tenancy of defendant no.4,5 and 6. The plaintiff to
corroborate the said fact of visit by officials of defendants no.1
to 3 for demolition of super-structure in suit land have not led
any evidence, placed photographs on record nor examined any
person to prove the alleged act of demolition by the defendant
no.1 to 3 though the said fact has been strongly denied by the
defendants in their written statement. Thus, the plaintiffs have
miserably failed to prove any overt act on part of defendant no
1,2 and 3 w.r.t demolition or dispossession. It appears to be false
story made out by plaintiffs to make false claim over suit
property by way of simlicitor suit of injunction. The plaintiffs to
prove their case have examined only one real witness i.e PW-1
Anil Kumar Jain. During cross examination the PW-1 as
discussed before denied the suggestion that defendant no.5 and 6
were not in possession at the time of filing of the present suit but
Anil Kumar Jain & Ors Vs Union of India & Ors. 19 /54
apart from bare denial, the plaintiffs have not led any evidence to
show the possession of defendant no.5 and 6 on the suit property
before the filing of the present suit. The PW-1 has also denied
the suggestion that there were no super structure on the suit land
at the time of filing of the suit but again apart from bare denial
no positive evidence has been led by plaintiffs to prove the same.
The plaintiff PW-1 also denied the suggestion that the petrol
pumps under Khasra no.490/30/1 were running on the Gram
Sabha Land but again no evidence led by the plaintiffs to show
that the said petrol pumps as shown in site plan Ex.PW1/6 to be
in the khasra no.490/30/1 under the control and management of
plaintiffs. The PW-1 admitted to not have paid any house tax,
electricity or water bill at the time of filing of present suit
concerning the suit property and also he has failed to bring on
record any such document i.e electricity bills, water bills, house
receipts etc with respect to the suit property in his name or in
name of defendant no.4 to 6 who are stated to be their tenant in
suit shops. The PW-1 admitted that there are no dimensions of
suit shops in site plan Ex.PW1/6. This fact also in violation of
mandate o f law as stated in order 7 rule 3 CPC and this also
deserves dismissal of plaint, as rightly pointed out by Ld.
Counsels for defendant DDA. The demarcation report filed on
record is no substitute of order 7 rule 3 as submitted by plaintiff
counsel as the report pertains to only fact that suit shops falls in
Khasra no.403/90/1. The said demarcation report which was
objected by DDA has also not been proved by examining the
persons who prepared the same.
Anil Kumar Jain & Ors Vs Union of India & Ors. 20 /54
18. In view of the above lacunae in the story of the plaintiffs,
the plaintiffs have clearly failed to prove their settled legal
possession on the suit land since 1950’s as claimed by them in
plaint and also mere entry in revenue records does not confer
any title upon plaintiff w.r.t suit shops/land.
The above view of this court finds support from the order
of Hon’ble Delhi High Court in case of Nathu Ram vs D D A &
Anr.decided on 1 February, 2022 as cited by ld.counsel of DDA. The
facts of present case are very similar to the above case decided
by Hon’ble High Court of Delhi and relevant paragraphs for
consideration are reproduced herein below:
23. As for the other contentions made by the parties
and evidence presented, this Court observes first,
that the Plaintiffs have heavily relied upon their and
their family members’ names reflecting in certain
revenue records such as Khasra girdawaris to
establish that they have been in ownership and
possession of the suit property. However, it is the
settled position in law that reflection of a party’s
name in the revenue records cannot confer title. This
was most recently upheld in Prabhagiya Van
Adhikari Awadh Van Prabhag V. Arun Kumar
Bhardwaj (Dead) Thr. Lrs. [Civil Appeal No 7017
of 2009, decided on 5th October, 2021], where the
Supreme Court held:
“26. This Court in a judgment reported as Prahlad
Pradhan and Ors. v. Sonu Kumhar and Ors.7
negated argument of ownership based upon entries
in the revenue records. It was held that the revenue
record does not confer title to the property nor doAnil Kumar Jain & Ors Vs Union of India & Ors. 21 /54
they have any presumptive value on the title. The
Court held 7 (2019) 10 SCC 259 as under:
“5. The contention raised by the appellants is that
since Mangal Kumhar was the recorded tenant in
the suit property as per the Survey Settlement of
1964, the suit property was his self-acquired
property. The said contention is legally
misconceived since entries in the revenue records do
not confer title to a property, nor do they have any
presumptive value on the title. They only enable the
person in whose favour mutation is recorded, to pay
the land revenue in respect of the land in question.
As a consequence, merely because Mangal
Kumhar’s name was recorded in the Survey
Settlement of 1964 as a recorded tenant in the suit
property, it would not make him the sole and
exclusive owner of the suit property.”
31. Thus, the Plaintiffs had a heavy onus to establish
the following:
(i) That they had acquired the suit property through
legally recognized documents such as registered
sale deed, allotment from governmental authorities,
etc. However, no such documents were produced by
the Plaintiffs.
(ii) That the Plaintiffs were in possession of the suit
property which falls in Khasra No.48/7 – this ought
to have been established by positive evidence and
not by an inference.
(iii) That the Plaintiffs had to rely on documents
proved in accordance with law, even to establish
possession – however, in this case, only some
spattering revenue records which were marked andAnil Kumar Jain & Ors Vs Union of India & Ors. 22 /54
not even exhibited, were relied upon by the
Plaintiffs.
32. The plaint in the present case is bereft of any
pleadings as to how ownership/title was acquired by
the Plaintiffs to the land in question. It is relevant to
note that even paragraph 2 of the plaint shows the
manner in which the Plaintiffs state that the suit
property is not acquired by the Land Acquisition
Collector and was not handed over to the DDA.
This reflects the state of mind of the Plaintiffs who
seem to have themselves had an apprehension that
the suit property may be falling in the acquired
portion of the land.
36. In view of the above settled legal position, that
mere sporadic or stray entries in the revenue records
cannot confer title, and the facts mentioned above,
this Court is of the opinion that the Plaintiff has
failed to establish that there is any substantial
question of law which deserves to be adjudicated
upon in the present second appeal. In fact, from the
evidence which has emerged from the record, it is
clear that apart from some mention in khasra
girdawaris, there are no other concrete documents
which have been filed by the Plaintiff to discharge
the heavy onus that is placed on him.
In present case also, on almost similar facts, the plaintiff
have failed to discharge the primary burden upon them and they
deserve no relief from this court.
19. The plaintiffs claim themselves to be the owner/Bhumidar of
the suit land on the basis of document Ex.PW1/7 i.e judgment of
Shri D.R. Nafri, Additional Collector Delhi dated 28.07.1988.
Anil Kumar Jain & Ors Vs Union of India & Ors. 23 /54
Perusal of said orders shows that father of plaintiffs was declared
Bhumidar of land in question i.e Khasra no.403/90/1 only in the
year 1988. To the understanding of this court the said judgment
of the Additional Collector heavily relied upon by plaintiffs has
no relevance as being non-est in view of document
Ex.D3W1/6i.e notification dated 23.05.1963 of department of
Delhi Administration in exercise of power conferred by 507(a)
of Delhi Municipal Corporation Act, 1957 whereby the village,
Azadpur and the other villages mentioned in the said notification
ceased to be rural areas and thus the order of Revenue Courts
dated 28.07.1988 has no force with respect to the land which
does not fall under the Delhi Land Reform Act, 1954. Section
154(3) of DLR Act 1954 clearly states that if Gaon Sabha cease
to be rural area by virtue of notification under section 507 of
DMC Act, all movable and immovable properties or interest held
in Gaon Sabha will vest in Central Government. Thus, the
revenue court which declared father of plaintiff as Bhumidar
had no jurisdiction to decide the same on that date. And all the
entries in revenue record in name of plaintiffs which were made
as consequence to the order of revenue court dated 28.7.88
looses it’s legal force.
The above view of this court, is also supported by three
Judge by the order of Hon’ble Supreme Court of India of three
Judges Benche in case of Mohinder Singh (D) Thr. Lrs . vs
Narain Singh decided on 14 March, 2023 as cited by ld.counsel
of DDA.
The relevant paras are quoted below:-
31. To simplify it further, once there is a notification
issued by the competent authority in exercise ofAnil Kumar Jain & Ors Vs Union of India & Ors. 24 /54
power under Section 507(a) which is a special
provision in reference to rural areas, such of the
rural areas cease to be included therein upon
issuance of the notification and shall thereafter
include in and form part of the urban areas in terms
of the notification. Subclause (b) and (c ) of Section
507 deals with the nature of grant of exemption or
levy of taxes for such of the areas falling within the
scope and ambit of the Act, 1957.
36. After harmonizing the provisions of the Act,
1954 and Act 1957, we are of the considered view
that once a notification has been published in
exercise of power under Section 507(a) of the Act,
1957, the provisions of the Act, 1954 cease to apply.
In sequel thereto, the proceedings pending under the
Act, 1954 become non est and loses its legal
significance.
The above case of Hon’ble Supreme Court of India was
also followed by Hon’ble High Court of Delhi in case of Rajeev
Shah (Deceased) Through Lr Ms. … vs Government Of NCT Of Delhi &
Ors.decided on 10 April, 2023 .The relevant paragraph is quoted below:-
25. Therefore, considering the law of the land as
declared by Supreme Court in the case of
Mohinder Singh (supra), the inevitable conclusion
is that the proceedings pending before the learned
ADM under the DLR Act after urbanisation of the
area in question cannot continue. The Supreme
Court has held clearly that all proceedings under
the DLR Act lose their legal significance after
urbanisation of the area in question. The Supreme
Court has made no segregation as regards the
proceedings under the DLR Act being at initial
stages or where final order under the DLR hasAnil Kumar Jain & Ors Vs Union of India & Ors. 25 /54
already come to be passed at the time of
urbanisation of the land. Thus, as per the judgment
of the Supreme Court, all proceedings emanating
from the DLR Act would be liable to be quashed
after urbanisation, as the DLR Act ceases to apply.
The Supreme Court nowhere differentiates between
the original proceedings or the Appellate
proceedings that may be pending under the DLR
Act before the Revenue Authorities at the time of
declaration of an area as urbanised.
The Hon’ble High Court of Delhi has reiteratated the
above principles in the case of Smt. Indu Khurana vs Gram
Sabha & Ors decided on 26.03.2010 and relied upon by the
plaintiff counsel.
20. The case of Hatti vs Sunder Singh of Hon’ble Supreme
Court of India of two judges bench decided in 1970 and relied
upon by the plaintiff has no relevance in the facts of the present
case because the said judgment was delivered on the premise
that the land in question was agricultural land and thus it was
held by Hon’ble Supreme Court of India that Bhumidari rights
with respect to agricultural land can not be decided by the
revenue courts which has jurisdiction to decide and not civil
courts. But in the present case in view of the notification dated
23.05.1963 whereby the village Azadpur ceased to be a rural
area, the said judgment of Hon’ble Supreme Court of India has
no applicability and to the mind of this court has been wrongly
relied upon by the plaintiffs. This also takes away the
significance of order of D.R Nafra Additional Collector decided
Anil Kumar Jain & Ors Vs Union of India & Ors. 26 /54
on dated 28.07.1988 from where the whole claim of plaintiffs
originates.
21. The plaintiffs story in the plaint is itself contradictory as
on one side they are claiming to the Bhumidar of Khasra
no.403/90/1 and on the other hand admittedly they have let out
the suit property to various tenants used by them for non
agricultural purpose. Various provisions contained in Delhi Land
Reform Act, 1954 which prohibits the Bhumidar to let out the
Bhumidari land in favour of other persons and relevant
provisions are reproduced herein below:
35. Letting of land- No Bhumidhar or Asami shall
lt,for any p eriod whatsoeer, any land comprised in
his holding except in the cases provided for in
seciton 36.
Explanation Any arrangement whereby a person is
entitled to v merely to share in the produce grown
on the land in consideration person assisting or
participating with the tenure holder in the actual
performance of agriculture operations is not a
“lease”.
36. Lease by a disabled person (1) A Bhumidhar
who is
(a) an unmarried woman, or if married, divorced or
separated from he husband, or a widow;
(b) a minor whose father has died
(c) a lunatic or an idiots
(d) a person incapable of cultivating by reason of
blindness or physics Infirmitys
(e) prosecuting studies in a recognized institution
and does not exceed 25 years in age
(f) in the armed forces of the Indian union; 2)
Anil Kumar Jain & Ors Vs Union of India & Ors. 27 /54
(g) dependent for assistance in agricultural
operation on a person serving in the armed forces of
the Union and certified by the Deputy
Commissioner to be so dependent; or
(h) under detention or imprisonment, may/let the
whole or any part of his holding
44. Effect of lease in contravention of section 36.
When a Bhumidhar other than one referred to in
section 36 has let out his holding or any part thereof,
the lessee will, notwithstanding anything contained
in any law or contract or document of lease become
and be deemed to be a purchaser and the provisions
of section 33 and 42 shall mutatis mutandis apply.
45. Transfer made-in-contravention of this Chapter
to be void.-(1) Any transfer made by or on behalf of
a Bhumidhar or Asami in contravention of the
provision of this Chapter shall be void.
(2) Nothing in sub-section (1) shall apply to any
transfer which has been exempted by the Chief
Commissioner “[under the proviso to sub-section (1)
of section 33..
81. Ejectment for use of land in contravention of
the provisions of this Act–(1) A Bhumidar or an
Asami shall be liable to ejectment on the suit of the
Gaon Sabha or the landholder as the case may be,
for using land for horticulture animal husbandry,
which includes pisciculture and poultry farming,
and also Lto-render pay damages) equivalent to the
cost of works which may be required to re the land
capable of use for the said purposes.
22. Right of Bhumidhar or Asami to the exclusive
possession of land in holding.- Bhumidhar or Asami
shall, subject to the provisions of this Act. have the
Anil Kumar Jain & Ors Vs Union of India & Ors. 28 /54
right to the exclusive possession of all
land.comprised in his respective holding and to use
land for any purpose connected with agriculture,
horticulture wanimal husbandry which includes
pisciculture and poultry farming make any
improvement.
23. Use of holding for industrial purposes (1) A
Bhumidhar or Asami shall not be entitled to use his
holding or part thereof for industrial purposes, other
than those immediately connected with any of the
purposes referred to in section 22 unless the land
lies within the belt declared for the purpose by the
Chief Commissioner by a notification in the Official
Gazette:
Provided that the Chief Commissioner may, on
application presented to the Deputy Commissioner
in the prescribed manner, sanction the use of any
holding or part thereof by a Bhumidhar for
industrial purpose even though it does not fie within
such a belt.
(2) Where permission for industrial purposes is
accorded, the provisions of this chapter relating to
devolution shall cease to apply to the Bhumidar
with respect to such land and he shall thereupon be
governed in the matter of devolution of the land by
the personal law to which he is subject;
3(13) “land” except in sections 23 and 24, means
land held or occupied for purpose connected with
agriculture, horticulture or animal husbandry
including pisciculture and poultry farming and
includes-
(a) buildings appurtenant thereto,
(b) village abadis,
(c) grovelands,
Anil Kumar Jain & Ors Vs Union of India & Ors. 29 /54
(d) lands for village pasture or land covered by
water and used for growing singharas and other
produce or land in the bed of a river and used for
casual or occasional cultivation,
but does not include-land occupied by building in
belts or areas adjacent to Delhi town, which the
Chief Commissioner may be a notification in
the Official Gazette declare as an acquisition
thereto;
In view of the above discussed provisions the land in
question i.e suit land ceased to be land within the meaning of
DLR Act 1954 once it is transferred/used in violation of
provision of DLR act 1954 and plaintiff who let out bhumidari
land in violations of above provisions can not claim to be the
Bhumidar of the same as he has failed to use the land in question
meant for agricultural purpose only by sub letting the same to
tenants. This view of the undersigned finds strength from the
Judgment of Hon’ble Court of Delhi in N.B Singh (Huf) vs M/S
Perfexa Solutions Pvt. Ltd on 29 May, 2009 as cited by
ld.counsel of DDA. The relevant paragraphs are quoted below:
Before I proceed further, it needs to be noticed that
this Court in the case of Ram Lubbaya Kapoor
Versus J R Chawla and Others, 1986 RLR 432 has
held that any land before it can be termed as “land”
for the purpose of Delhi Land Reforms Act, 1954
must be held or occupied for purposes connected
with agriculture, horticulture or animal husbandry
etc. and if the land is not used for said purposes, it
ceases to be land for the purpose of Delhi Land
Reforms Act, 1954. It has been further held that a
Bhumidhar is bound not only to retain possession
of his land but also use it for specified purposes atAnil Kumar Jain & Ors Vs Union of India & Ors. 30 /54
all material times if he is to continue to be a
Bhumidhar. A similar view was taken by this Court
in Narain Singh and Another Versus Financial
Commissioner in WP(C) No.670 of 1995 decided
on July 14, 2008.
It is manifest from the above judgments of this
Court that a property ceases to be an agricultural
property if it is not used for agricultural purposes.
In the present case, as noticed above, defendant in
its written statement has admitted that the suit
property is a farm-house which consists of a
dwelling unit on its ground floor and first floor, a
swimming pool and servant quarter etc. The
defendant has further admitted that the suit
property was leased out to it for the residence of its
Managing Director Shri T.S.Sandhu. It is also
admitted that the rental of the suit property at the
time it was leased out to defendant was
Rs.1,60,000/- per month and it is being
continuously used by its Managing Director Shri
T.S.Sandhu for his residence.
The aforesaid facts coupled with the fact that the
plaintiff got the plan sanctioned from the
Municipal Corporation of Delhi for raising
construction on the so-called agricultural land,
obtained completion certificate from the Municipal
Corporation of Delhi and is paying house-tax as
assessed by the Municipal Corporation of Delhi
lead me to no other conclusion except to the
conclusion that the suit property, by no stretch of
imagination, can be called an agricultural land. The
defendant-company who had taken premises on
lease for the residence of its Managing Director on
a hefty rent of Rs.1,60,000/- per month is estopped
from contending that the suit property is an
agricultural land covered by the Delhi Land
Reforms Act, 1954. Of-course, learned counsel for
the defendant sought to place reliance on the
revenue records to make good the submission that
the plaintiff continues to be a Bhumidhar in suchAnil Kumar Jain & Ors Vs Union of India & Ors. 31 /54
records but in the facts and circumstances, as
noticed above, the description of the plaintiff as a
Bhumidhar is of no consequence.
22. The judgment of three Judges bench of Hon’ble Supreme
Court of India in case of Rame Gowda (D) by
Lrs.Vs.M.Varadappa Naida (D)by Lrs. & Anr. decided on
15.12.2003 and relied upon by the counsel for plaintiff to prove
the settled possession of plaintiffs wherein the settled possession
of plaintiff was not disturbed by the Hon’ble Court in facts if
that given case where the dispute was between two individual
parties. But the said judgment do not apply to the facts of present
case where the plaintiff is seeking relief against the government
body. The standard of proof when injunction is sought against
government body is high compared to case when sought against
private individual.
The above view of the undersigned in also supported by
Judgement of Hon’ble High Court of Delhi in case of Nathu
Ram vs DDA decided on 01.02.2022 as cited by ld.counsel of
DDA. The contention of plaintiffs that since they are in
possession and can not be dispossesed without due process of
law looses any force when the present suit has been contested by
DDA to dispute the said possession as claimed by plaintiffs and
the adjudication to the issue by this court amounts to following
due process of law irrespective of fact that suit was filed by
plaintiffs. The relevant paragraphs of said judgment are quoted
below:-
25. In so far as the Trial Court’s finding stating that
DDA cannot dispossess the Plaintiffs without due
process of law, is concerned, this is clearly anAnil Kumar Jain & Ors Vs Union of India & Ors. 32 /54
erroneous approach inasmuch as even if the
Plaintiffs are stated to be in settled possession, it is
not necessary for the DDA to file a suit to take
possession from them. The DDA can, as a
Defendant, establish before the Court that the
Plaintiffs are in possession of a government land
and the same can result in dismissal of the suit.
Due process of law, as is settled in several
judgments of the Supreme Court and this Court,
does not always require initiation of action by the
owner/ Government. Dismissal of a suit by a
competent Court of law after affording proper
opportunity to the parties, is also a recognized
mode of following the due process of law. On this
issue, the observations of the Supreme Court in
Maria Margarida Sequeira Fernandes & Ors. v.
Erasmo Jack De Sequeira (Dead) through LRs,
(2012) 5 SCC 370, are as under:
“81. Due process of law means nobody ought to be
condemned unheard. The due process of law means
a person in settled possession will not be
dispossessed except by due process of law. Due
process means an opportunity for the Defendant to
file pleadings including written statement and
documents before the Court of law. It does not
mean the whole trial. Due process of law is
satisfied the moment rights of the parties are
adjudicated by a competent Court.
82. The High Court of Delhi in a case Thomas
Cook (India) Limited v. Hotel Imperial, 2006 (88)
DRJ 545 : (AIR 2007) (NOC) 169) held as under:
“28. The expressions ‘due process of law’, ‘due
course of law’ and ‘recourse to law’ have been
interchangeably used in the decisions referred to
above which say that the settled possession of even
a person in unlawful possession cannot be
disturbed ‘forcibly’ by the true owner taking law in
his own hands. All these expressions, however,
mean the same thing – ejectment from settledAnil Kumar Jain & Ors Vs Union of India & Ors. 33 /54
possession can only be had by recourse to a court
of law. Clearly, ‘due process of law’ or ‘due course
of law’, here, simply mean that a person in settled
possession cannot be ejected without a court of law
having adjudicated upon his rights qua the true
owner.
Now, this ‘due process’ or ‘due course’ condition is
satisfied the moment the rights of the parties are
adjudicated upon by a court of competent
jurisdiction. It does not matter who brought the
action to court. It could be the owner in an action
for enforcement of his right to eject the person in
unlawful possession. It could be the person who is
sought to be ejected, in an action preventing the
owner from ejecting him. Whether the action is for
enforcement of a right (recovery of possession) or
protection of a right (injunction against
dispossession), is not of much consequence.”
26. This position was reiterated by this Court in
Bal Bhagwan v. Delhi Development Authority
[CM (M) 416/2019, decided on 18th December,
2020] holding that the ‘due process’ condition
would be sufficiently met if a person in settled
possession is dispossessed by the dismissal of an
application for interim injunction, as long as the
rights of the parties are adjudicated upon and
opportunity is given to them to present their case.
On the question of ‘due process’, this Court has
observed as under:
“The issue as to what constitutes ‘due process’ is
thus settled beyond any doubt. The Plaintiff, who is
claiming possession, can be dispossessed in the suit
for injunction filed by him. Due process does not
always mean that the owner has to file the suit to
prove his title. So long as a Court of law has
examined the documents and has given a fair
hearing to the parties concerned, the compliance of
due process has taken place. Moreover, due process
of law also does not mean the final adjudication
after trial. It merely means an opportunity being
given to present the case before the Court of law
and the rights of the parties being adjudicated. It
does not mean the whole trial, as per Maria
Margarida (supra).
60. The judgment of the Supreme Court in Rame
Gowda (supra) is to the effect that if a party is inAnil Kumar Jain & Ors Vs Union of India & Ors. 34 /54
settled possession, his possession cannot be
disturbed without due process of law being
followed. The said case related to a private land in
dispute between two private parties. The lands of
the Plaintiff and the Defendant were adjoining in
nature and there was a dispute as to the
demarcation thereof. Since the identification and
extent of the land itself was in doubt, the Court, in
order to protect the Plaintiff, held that the owner
would have to assert his title in an independent
suit. The facts of the said case cannot be compared
to the facts of the present case to permit an
encroacher and illegal occupant to retain
possession of the suit property.
61. The plea of adverse possession, though pleaded
in the plaint, has been given up in the present
petition and only settled possession is argued. The
question as to whether the Plaintiff is in settled
possession or not, in terms of the test laid down in
Puran Singh (supra) need not be gone into in the
present case, inasmuch as the fact that the Plaintiff
is in possession, in whatsoever capacity, to the
knowledge of the authorities, is clear from the
khasra girdawari itself. The person in settled
possession cannot continue to remain in possession
forever. Once a Court of law has arrived at the
conclusion that the person in possession has no
rights, the possession can be taken away. The Trial
Court has not merely relied upon Jagpal Singh
(supra) but also considered various judgments of
the Supreme Court including Rame Gowda (supra)
and Maria Margarida (supra). Thus, the grievance
against the Trial Court judgment that it followed
Jagpal Singh (supra) which is per incuriam is
without any merit.
29. In view of this legal position, the requirement
of adhering to due process of law has been satisfied
in the present case and the Plaintiffs are not being
dispossessed contrary to law.
30. This brings the Court to the question of the
onus of the Plaintiffs of proving their ownership of
the suit property. It is well-settled that in cases of
government land, there is a greater responsibility of
Courts in ascertaining title of third parties. In fact,
the plaintiff in such cases must establish his clear
right, title and nature of possession in the property,
superior to that of the Government authority and
Anil Kumar Jain & Ors Vs Union of India & Ors. 35 /54
there is a presumption in favour of the
Government. In such cases, the Supreme Court has
clearly observed that it is not sufficient to show
possession or adverse possession merely by some
stray revenue entries or records. This position was
elaborated upon by the Supreme Court in R.
Hanumaiah and Ors. v. Secretary to Government of
Karnataka, Revenue Department and Ors., (2010)
SCC 203:
“Nature of proof required in suits for declaration of
title against the Government
15. Suits for declaration of title against the
government, though similar to suits for declaration
of title against private individuals differ
significantly in some aspects. The first difference is
in regard to the presumption available in favour of
the government. All lands which are not the
property of any person or which are not vested in a
local authority, belong to the government. All
unoccupied lands are the property of the
government, unless any person can establish his
right or title to any such land. This presumption
available to the government, is not available to any
person or individual. The second difference is in
regard to the period for which title and/or
possession have to be established by a person suing
for declaration of title. Establishing title/possession
for a period exceeding twelve years may be
adequate to establish title in a declaratory suit
against any individual. On the other hand,
title/possession for a period exceeding thirty years
will have to be established to succeed in a
declaratory suit for title against government. This
follows from Article 112 of Limitation Act, 1963
which prescribes a longer period of thirty years as
limitation in regard to suits by government as
against the period of 12 years for suits by private
individuals. The reason is obvious. Government
properties are spread over the entire state and it is
not always possible for the government to protect
or safeguard its properties from encroachments.
Many a time, its own officers who are expected to
protect its properties and maintain proper records,
either due to negligence or collusion, create entries
in records to help private parties, to lay claim of
ownership or possession against the government.
Any loss of government property is ultimately the
loss to the community. Courts owe a duty to beAnil Kumar Jain & Ors Vs Union of India & Ors. 36 /54
vigilant to ensure that public property is not
converted into private property by unscrupulous
elements.
16. Many civil courts deal with suits for declaration
of title and injunction against government, in a
casual manner, ignoring or overlooking the special
features relating to government properties.
Instances of such suits against government being
routinely decreed, either ex parte or for want of
proper contest, merely acting upon the oral
assertions of plaintiffs or stray revenue entries are
common. Whether the government contests the suit
or not, before a suit for declaration of title against a
government is decreed, the plaintiff should
establish, either his title by producing the title
deeds which satisfactorily trace title for a minimum
period of thirty years prior to the date of the suit
(except where title is claimed with reference to a
grant or transfer by the government or a statutory
development authority), or by establishing adverse
possession for a period of more than thirty years. In
such suits, courts cannot, ignoring the
presumptions available in favour of the
government, grant declaratory or injunctive decrees
against the government by relying upon one of the
principles underlying pleadings that plaint
averments which are not denied or traversed are
deemed to have been accepted or admitted. A court
should necessarily seek an answer to the following
question, before it grants a decree declaring title
against the government : whether the plaintiff has
produced title deeds tracing the title for a period of
more than thirty years; or whether the plaintiff has
established his adverse possession to the
knowledge of the government for a period of more
than thirty years, so as to convert his possession
into title.
Incidental to that question, the court should also
find out whether the plaintiff is recorded to be the
owner or holder or occupant of the property in the
revenue records or municipal records, for more
than thirty years, and what is the nature of
possession claimed by the plaintiff, if he is in
possession – authorized or unauthorized;
permissive; casual and occasional; furtive and
clandestine; open, continuous and hostile; deemed
or implied (following a title).
17. Mere temporary use or occupation without the
animus to claim ownership or mere use at
sufferance will not be sufficient to create any right
adverse to the Government. In order to oust or
defeat the title of the government, a claimant has to
establish a clear title which is superior to or better
than the title of the government or establish
perfection of title by adverse possession for a
period of more than thirty years with the
knowledge of the government. To claim adverse
possession, the possession of the claimant must be
actual, open and visible, hostile to the owner (and
therefore necessarily with the knowledge of the
owner) and continued during the entire period
necessary to create a bar under the law of
limitation. In short, it should be adequate in
continuity, publicity and in extent. Mere vague or
doubtful assertions that the claimant has been in
adverse possession will not be sufficient.
Unexplained stray or sporadic entries for a year or
for a few years will not be sufficient and should be
ignored. As noticed above, many a time it is
possible for a private citizen to get his name
entered as the occupant of government land, with
the help of collusive government servants. Only
entries based on appropriate documents like grants,
title deeds etc. or based upon actual verification of
physical possession by an authority authorized to
recognize such possession and make appropriate
entries can be used against the government. By its
very nature, a claim based on adverse possession
requires clear and categorical pleadings and
evidence, much more so, if it is against the
government. Be that as it may.”
31. Thus, the Plaintiffs had a heavy onus to
establish the following:
(i) That they had acquired the suit property through
legally recognized documents such as registered
sale deed, allotment from governmental authorities,
etc. However, no such documents were produced
by the Plaintiffs.
(ii) That the Plaintiffs were in possession of the suit
property which falls in Khasra No.48/7 – this ought
to have been established by positive evidence and
not by an inference.
(iii) That the Plaintiffs had to rely on documents
proved in accordance with law, even to establish
possession – however, in this case, only some
spattering revenue records which were marked and
not even exhibited, were relied upon by the
Plaintiffs.
32. The plaint in the present case is bereft of any
pleadings as to how ownership/title was acquired
by the Plaintiffs to the land in question. It is
relevant to note that even paragraph 2 of the plaint
shows the manner in which the Plaintiffs state that
the suit property is not acquired by the Land
Acquisition Collector and was not handed over to
the DDA. This reflects the state of mind of the
Plaintiffs who seem to have themselves had an
apprehension that the suit property may be falling
in the acquired portion of the land.
36. In view of the above settled legal position, that
mere sporadic or stray entries in the revenue
records cannot confer title, and the facts mentioned
above, this Court is of the opinion that the Plaintiff
has failed to establish that there is any substantial
question of law which deserves to be adjudicated
upon in the present second appeal. In fact, from the
evidence which has emerged from the record, it is
clear that apart from some mention in khasra
girdawaris, there are no other concrete documents
which have been filed by the Plaintiff to discharge
the heavy onus that is placed on him.
37. This Court is also conscious of the fact that the
suit property in question is stated to be near a
South Delhi Colony, adjacent to Safdarjung
Enclave/Green Park and is very valuable. The
Plaintiff who is in possession of a large part of this
suit property, cannot continue to remain in
possession, as permitting the same would be a
giving a premium to illegal encroachments and
occupations on public land.
39. Accordingly, DDA is free to take steps in
accordance with law.
40. This Court notes that the present case is also
another example of the ills that plague civil
litigation in respect of government acquired land.
The acquisition in this case dates back to 1961. The
land was placed at the disposal of DDA in 1975.
Anil Kumar Jain & Ors Vs Union of India & Ors. 39 /54
The suit in this case was filed in 1984 i.e., nine
years later and was adjudicated upon by the Trial
Court in 2011, i.e., more than 25 years later. The
Appellate Court gave its decision in 2020. The
DDA had taken an objection as to the
maintainability of the suit itself, right at inception
in its written statement. However, the suit had to go
through the full journey of trial and final
adjudication. In such cases, advantage is taken of
the fact that due to rampant encroachment,
demarcation cannot be usually done in the manner
as prescribed by law. Illegal occupants of such
properties continue to enjoy prime
government/public land without paying a single
penny to the government for use and occupation.
As government authorities continue to defend
against suits filed by such occupants, the public is
deprived of the use and enjoyment of the said land
which has been acquired for public purposes. Thus,
it is incumbent upon the Trial Courts, to consider
the maintainability of such suits at the initial stage
in a manner that they deem appropriate, so as to
ensure that such long delays do not take place,
especially in respect of government land.
The above legal principles when applied to present case of
plaintiffs based on similar facts make the case of plaintiff
unreliable and the present plaintiffs who appear to be encroacher
on public land can not be allowed to continue to remain in
possession.
23. The notification dated 20.08.1974 of Ministry of Work
and Housing in exercise of power confront by section 22(i) of
DDA Act 1957 the Central Government have placed the
Azadpur village among other villages mentioned in the
notification at the disposal of DDA for purpose of development
and maintenance of said lands as green and for taking such steps
as may be required to serve the said purpose subject to the
condition that DDA shall not make, or cause or permitted to be
made any construction on the said lands. The above notification
Anil Kumar Jain & Ors Vs Union of India & Ors. 40 /54
and its signifance has been beautifully explained in the case of
Hon’ble Delhi High Court in Rajinder Kakkar And Ors. vs Delhi
Development Authority decided on 3 November, 1993 as cited by
ld.counsel of DDA . The relevant paragraphs are quoted below:-
(17) Time has now come where the society and the
law abiding citizens are being held to ransom by
persons who have no respect for law. The wheels
of justice grind slowly and the violators of law are
seeking to take advantage of the laws delays. That
is why they insist on the letter of the law being
complied with by the respondents while, at the
same time, showing their-complete contempt for
the laws themselves. Should there not be a change
in the judicial approach or thinking when dealing
with such problems which have increased manifold
in recent years viz., large scale encroachment on
public land and unauthorised construction thereon,
most of which could not have taken place without
such encroachers getting blessings or tacit approval
from the powers that be including the Municipal or
the local employees. Should the Courts give
protection to violators of the law? The answer in
our opinion must be in the negative. Time has now
come when the Courts have to be satisfied, before
they interfere with the action taken or proposed to
be taken by the governmental authorities qua
removal of encroachment or sealing or demolishing
unauthorised construction specially when such
construction, like the present, is commercial in
nature.
(18) Before action for demolition or removal of
encroachment is taken the Court must be satisfied,
prima facie,on the basis of some document or other
tangible evidence that the petitioners or theAnil Kumar Jain & Ors Vs Union of India & Ors. 41 /54
applicants have a legal title to the property or a
right to remain in possession thereof. Where a
person is an encroacher and never had any right to
legal possession of public land, the Courts should
not grant any injunction or relief which will have
the result of permitting or protecting the continued
illegal occupation of public land. There may be a
case where at a point of time the possession or
occupation may have been valid under a lease or a
grant and which lease or grant may have
subsequently been wrongfully terminated and the
termination challenged, such a .case may, however,
fall in a different category where the question of
balance of convenience will have to be carefully
examined specially when the action of termination
of lease or grant is seriously challenged. But, in a
case like the present, where at no point of time the
petitioners had any valid right, title or interest to
the property the Court ought not to grant any relief
to such a petitioner even if there has been any
procedural irregularity by the respondent while
seeking to get back possession of public land.
20) Another cardinal principle which has to be
followed in a writ jurisdiction is that the petitioners
must come to the Court with clean hands. Is such
the case here? The answer is no. The following
facts speak for themselves: 1.The petitioners have
no legal title to the land; 2. The land vests with the
Central Government and is a public property; 3.
There is encroachment by the petitioners on the
land without permis- sion from the Government; 4.
Construction has been raised on public land
without submitting any building plans;
5.AccordingtotheMasterPlannoconstruction can be
raised on the land in question because this is a
green area; 6. Before seeking the transfer of land
‘No Objection Certificate’ was not obtained and the
Anil Kumar Jain & Ors Vs Union of India & Ors. 42 /54
provisions of the Delhi Land (restriction of
transfer) Act, 1972 were not complied with.
(21) The conduct of the petitioners is such that they
are not entitled to any relief from this Court. Even
if it be assumed that a show cause notice had to be
issued under Section 30 of the Delhi Development
Act before any demolition could be effected and
non- issuance of the show cause notice has resulted
in the breach of law, nevertheless no relief can be
granted to the petitioners because of the
irregularities which have been committed by the
respondents. The respondents are entitled to regain
possession of land which belongs to them and
which has been encroached upon and the
petitioners cannot be allowed to take advantage of
their own wrong. It is possible that the petitioners
may be innocent victims of land mafia but be that
as it may, the petitioners should have known that in
law this land vested in the Central Government and
they should not have purchased the same in small
parcels and then raise construction without
following any building bye-laws. This is not a case
where poor houseless people have put up shelters
for themselves for their residence. Here is a case
where public land has been encroached upon and is
sought to be used for erecting structures for
commercial use.
Also, in another case of Bakshi Ram vs Delhi
Development Authority on 1 February, 1995 as cited by
ld.counsel of DDA, The Hon’ble High Court of Delhi has
observed as follows:-
(9) I have heard the arguments which have been
advanced by the learned counsel for the petitioner
against the judgment of the learned Additional
District Judge. The petitioner has failed to produce
any document by which his legal title or possession
could be established. He has miserably failed toAnil Kumar Jain & Ors Vs Union of India & Ors. 43 /54
demonstrate how he was carrying on his business at
Tank Road, Karol Bagh, Delhi. It is established
beyond any reasonable doubt that the petitioner
being a tress passer and encroacher of public land is
entitled to no relief from this Court. The process of
court would not lend a helping hand to the
trespassers and the encroachers of public land.
Further, Punjab-Haryana High Court in case of Mohan
Lal vs Mohan Singh decided on 7 October, 1994
observed as follows:-
5. Apart from the three ordinary ingredients which
must be satisfied for grant of injunction in favour
of a plaintiff/petitioner, namely, a strong prima
facie case, balance of convenience and irreparable
injury, in cases involving public properties and
public interest, the Courts have to bear in mind as
to whether the grant of injunction would be
conducive or detrimental to public interest. The
Courts have to take note of the fact that
Government lands belonging to the public at large
and the community as a whole is entitled to enjoy
the properties belonging to the Government. In
fact, the Government holds property as a trustee of
the people and, therefore, where any attempt is
made by an individual or a group of individuals to
misappropriate/misuse or otherwise interfere with
the enjoyment of public property by the people in
general, the Courts have to be extremely cautious
in granting injunction in favour of such person only
on the ground that he is in possession of the
property. Possession of public property by such an
individual or a group of individuals is noAnil Kumar Jain & Ors Vs Union of India & Ors. 44 /54
possession in the eyes of law. Such a person cannot
claim any right whatsoever on the basis of
unlawful occupation of the public property and
Courts would be justified in declining any
assistance to such a person. In such like cases, a
plaintiff cannot claim parity with a person who has
a dispute with another individual over a private
property. Moreover, the Courts have to act as
guardian of the public property and should not pass
an order of injunction in favour of a person who
has made unauthorised encroachment of the public
property. For these reasons, I hold that the order
passed by the learned Additional District Judge
does not suffer from any jurisdiction error or any
other legal infirmity requiring interference by this
Court.
24. The plaintiff have filed the certified copy of judgment
with respect to land acquisition order pertaining to Khasra
no.403/90/2/1 in favour of plaintiffs father but the said orders
has no significance in present suit where the land in dispute
pertians to Khasra no.403/90/1. The counsel for plaintiff has also
relied upon the order of Hon’ble High Court of Delhi dated
28.03.2007 wherein in the para no.23 it has been observed by
Hon’ble High Court that the unacquired land would have to be
treated as private land and as not in Union of India upon
urbanisation of village-Azadpur. This Court can not concur with
the submission of Ld. Counsel for plaintiff as above order of
Hon’ble High Court of Delhi in para no.34 itself clearly stated
that “nothing stated in this order would be construed as an
expression on the mertis of the controversy. Observations inAnil Kumar Jain & Ors Vs Union of India & Ors. 45 /54
present order are prima facie expression of an opinion”. As as
we know the opinions are not legally binding on courts below.
So the said order of Hon’ble High Court of Delhi which has not
given any finding to the said effect is of no help to plaintiffs.
Thus, the plaintiff herein have miserably failed to discharge the
burden upon them to show their legal/settled possession and they
can not thus, claim relief of injunction to be not dispossed
without due process of law.
25. The Hon’ble Supreme Court of India in Maria Margadia
Sequeria Fernandes & Ors vs Erasmo Jack De Sequeria (D)
Tr.Lrs.& Ors decided on 21 March, 2012 observed as follows,
relevant paragraphss are quoted below:
81. Due process of law means nobody ought to be
condemned unheard. The due process of law means
a person in settled possession will not be
dispossessed except by due process of law. Due
process means an opportunity for the defendant to
file pleadings including written statement and
documents before the Court of law. It does not
mean the whole trial. Due process of law is
satisfied the moment rights of the parties are
adjudicated by a competent Court.
82. The High Court of Delhi in a case Thomas
Cook (India) Limited v. Hotel Imperial 2006 (88)
DRJ 545 held as under:
“28. The expressions `due process of law’, `due
course of law’ and `recourse to law’ have been
interchangeably used in the decisions referred to
above which say that the settled possession of even
a person in unlawful possession cannot beAnil Kumar Jain & Ors Vs Union of India & Ors. 46 /54
disturbed `forcibly’ by the true owner taking law in
his own hands. All these expressions, however,
mean the same thing — ejectment from settled
possession can only be had by recourse to a court
of law. Clearly, `due process of law’ or `due course
of law’, here, simply mean that a person in settled
possession cannot be ejected without a court of law
having adjudicated upon his rights qua the true
owner.
Now, this `due process’ or `due course’ condition is
satisfied the moment the rights of the parties are
adjudicated upon by a court of competent
jurisdiction. It does not matter who brought the
action to court. It could be the owner in an action
for enforcement of his right to eject the person in
unlawful possession. It could be the person who is
sought to be ejected, in an action preventing the
owner from ejecting him. Whether the action is for
enforcement of a right (recovery of possession) or
protection of a right (injunction against
dispossession), is not of much consequence. What
is important is that in either event it is an action
before the court and the court adjudicates upon it.
If that is done then, the `bare minimum’
requirement of `due process’ or `due course’ of law
would stand satisfied as recourse to law would
have been taken. In this context, when a party
approaches a court seeking a protective remedy
such as an injunction and it fails in setting up a
good case, can it then say that the other party must
now institute an action in a court of law for
enforcing his rights i.e., for taking back something
from the first party who holds it unlawfully, and,Anil Kumar Jain & Ors Vs Union of India & Ors. 47 /54
till such time, the court hearing the injunction
action must grant an injunction anyway? I would
think not. In any event, the `recourse to law’
stipulation stands satisfied when a judicial
determination is made with regard to the first
party’s protective action. Thus, in the present case,
the plaintiff’s failure to make out a case for an
injunction does not mean that its consequent
cessation of user of the said two rooms would have
been brought about without recourse to law.”
In view of above discussion and in light of principles laid
down by honble by Supreme Court, the adjudication of present
case contested by defendant no.1,2 and 3 more specifically by
DDA it can not be said that due process of law has not been
followed. The plaintiffs here in are not entitled to any injunction
being failed to establish legal settled possession.
Accordingly, the issue no.1 is decided against the plaintiff in
favour of defendant no.1,2 and 3.
26. Issue no.(ii). Whether the land on which the suit shop is
built is at the disposal of DDA vide S.O no. 2190 dated
20.08.1974, if so, its effect?OPD-3.
The onus to prove the said issue is upon defendant/DDA.
Vide notification above stated the whole of village Azadpur is
under the disposal of DDA and in view of above discussion
since the plaintiff has failed to show his settled/legal possession
on the suit land it can be safely presumed that the said land is
government land at disposal of DDA and the DDA is under duty
to preserve the same from illegal encroachment by any person
Anil Kumar Jain & Ors Vs Union of India & Ors. 48 /54
including present plaintiffs. Thus, the said issue is also decided
against the plaintiff and in favour of defendant no.3/DDA.
Issue no.(iii). Whether the land in question on which the Suit
Shop is built comes under khasra no. 403/90/1 and is a private
land?OPP
The onus to prove the said issue is on plaintiff. The
plaintiff in their plaint and PW-1 in his testimony and as per
documents filed on record the suit shop is under Khasra
no.403/90/1. The demarcation report dated 23.01.2015 also
stated that the disputed property i.e suit shop falls under Khasra
no.403/90/1 but the plaintiffs as discussed above in issue no.(i)
has failed to show that the land in question is a prviate land
belonging to them. The said issue is also accordingly decided
against the plaintiff and in favour of defendants.
Issue no.(iv). Whether this suit is maintainable in its present
form in view of judgment of Hon’ble Apex Court in case titled as
Anathula Sudhakar Vs. P Buchi Reddy AIR 2008 SC 20337OPP
The onus to prove the said issue again on plaintiffs. To discuss
the maintainability of present suit in view of above judgment of
Hon’ble Supreme Court of India let’s understand that the basic
principles laid down in this case which are quoted below:-
17. To summarize, the position in regard to suits
for prohibitory injunction relating to immovable
property, is as under :
(a) Where a cloud is raised over plaintiff’s title and
he does not have possession, a suit for declaration
and possession, with or without a consequential
injunction, is the remedy. Where the plaintiff’s titleAnil Kumar Jain & Ors Vs Union of India & Ors. 49 /54
is not in dispute or under a cloud, but he is out of
possession, he has to sue for possession with a
consequential injunction. Where there is merely an
interference with plaintiff’s lawful possession or
threat of dispossession, it is sufficient to sue for an
injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned
only with possession, normally the issue of title
will not be directly and substantially in issue. The
prayer for injunction will be decided with reference
to the finding on possession. But in cases where de
jure possession has to be established on the basis of
title to the property, as in the case of vacant sites,
the issue of title may directly and substantially
arise for consideration, as without a finding
thereon, it will not be possible to decide the issue
of possession.
(c) But a finding on title cannot be recorded in a
suit for injunction, unless there are necessary
pleadings and appropriate issue regarding title
[either specific, or implied as noticed in
Annaimuthu Thevar (supra)]. Where the averments
regarding title are absent in a plaint and where
there is no issue relating to title, the court will not
investigate or examine or render a finding on a
question of title, in a suit for injunction. Even
where there are necessary pleadings and issue, if
the matter involves complicated questions of fact
and law relating to title, the court will relegate the
parties to the remedy by way of comprehensive suit
for declaration of title, instead of deciding the issue
in a suit for mere injunction.
(d) Where there are necessary pleadings regarding
title, and appropriate issue relating to title on which
parties lead evidence, if the matter involved is
simple and straight-forward, the court may decide
upon the issue regarding title, even in a suit for
injunction. But such cases, are the exception to the
normal rule that question of title will not be
decided in suits for injunction.
But persons having clear title and possession suing
for injunction, should not be driven to the costlier
and more cumbersome remedy of a suit for
declaration, merely because some meddler
vexatiously or wrongfully makes a claim or tries to
encroach upon his property. The court should use
its discretion carefully to identify cases where it
will enquire into title and cases where it will refer
to plaintiff to a more comprehensive declaratory
suit, depending upon the facts of the case.
Taking guidance from above principles laid down by
Hon’ble Supreme Court in the case of Antalula Sudhakar Vs .P.
Buchi Reddy, since the present case has been filed by plaintiffs
on basis of their settled possession claiming their
ownership/Bhumidari rights over suit land, the maintainability of
suit is was not questioned initially but defendant no.1,2 and 3 all
challenged the title of plaintiff’s in their WS and also throughout
trial. The facts of present case falls under category (b) cases
cited above as the possession is alleged by plaintiffs on basis of
title in present case. While deciding issue no(i) against plaintiffs
this court has discussed the issue of title which has arisen for
consideration to decide legal possession of plaintiffs and find the
Anil Kumar Jain & Ors Vs Union of India & Ors. 51 /54
same to be defective and plaintiffs can not clain themselves to be
bhumidar of suit land. Thus, the observations in the present suit
with respect to title of plaintiffs is only for purpose of deciding
present suit of simplicitor injunction filed by plaintiffs. The
present case filed by plaintiffs is not maintainable in view of the
Anatula Sudhakar case. Accordingly, the above issue is decided
in favour of the defendants and against the plaintiffs.
Issue no.(v). Whether the present suit is barred under Section 53-
B of DD Act?OPD-3
The onus to prove the same is upon defendant no.3. There
is no bar of the above provision in view of section 53-B (3) of
DD Act wherein the suit for injunction does not require the
mandatory notice. Accordingly, the issue is decided in favour of
the plaintiffs and against defendants.
Issue no.(vi). Whether present suit has not been properly valued
for the purpose of court fees and jurisdiction? OPD-3
The onus to prove the same is upon defendant no.3 no
evidence has been led by defendants with respect to present issue
challenging the valuation of suit. Since present suit is filed with
prayer of simplicitor injunction can not be said to be under
valued and hence the issue is decided in favour of plaintiff
against the defendants.
27. Before parting with the judgment, this court wish to follow
the Principles laid down by the Hon’ble Supreme Court in Maria
Margadia Sequeria Fernandes & Ors vs Erasmo Jack De
Anil Kumar Jain & Ors Vs Union of India & Ors. 52 /54
Sequeria (D) Tr.Lrs.& Ors decided on 21 March, 2012 observed
as follows, relevant paragraphss are quoted below:
False claims and false defences
84. False claims and defences are really serious
problems with real estate litigation, predominantly
because of ever escalating prices of the real estate.
Litigation pertaining to valuable real estate
properties is dragged on by unscrupulous litigants
in the hope that the other party will tire out and
ultimately would settle with them by paying a huge
amount.
This happens because of the enormous delay in
adjudication of cases in our Courts. If pragmatic
approach is adopted, then this problem can be
minimized to a large extent.
85. This Court in a recent judgment in
Ramrameshwari Devi and Others (supra) aptly
observed at page 266 that unless wrongdoers are
denied profit from frivolous litigation, it would be
difficult to prevent it. In order to curb uncalled for
and frivolous litigation, the Courts have to ensure
that there is no incentive or motive for uncalled for
litigation. It is a matter of common experience that
Court’s otherwise scarce time is consumed or more
appropriately, wasted in a large number of uncalled
for cases. In this very judgment, the Court provided
that this problem can be solved or at least be
minimized if exemplary cost is imposed for
instituting frivolous litigation.
28. The present case which is in view of above discussion is
no doubt based on false claim and has wasted precious time of
Anil Kumar Jain & Ors Vs Union of India & Ors. 53 /54
this court in this present frivilous litigation and thus, the cost of
Rs.50,000/- is imposed upon both the plaintiffs jointly to be
deposited in the “Avlamban Fund Scheme,2024 maintained in
State Bank of Indian, Tis Hazari Court complex, Delhi saving
account number.43599660056, within one month from date of
order.
Relief
29. In view of the above discussion, the present suit of
the plaintiff stands dismissed. The plaintiff is held to be not
entitled to any relief of permanent injunction as prayed in prayer
of plaint.
30. Decree sheet be prepared accordingly.
31. File be consigned to the Record Room as per rules.
Announced in the open court (Neha Pandey)
on 3rd March, 2025 JSCC/ASCJ/Guardian Judge
West, Tis Hazari, Delhi
Anil Kumar Jain & Ors Vs Union of India & Ors. 54 /54
