In the Court of Ms. Rishika Srivastava, Civil Judge (West)- III, Tis Hazari, Delhi
CS No. 60844416
CNR No. DLWT030004422013
Hari Singh Vs. Om Prakash
1. Hari Singh s/o Shri Bhagwan Dass R/o V.P.O, Mundka, New Delhi
2. Surat Singh, S/o late Shri Udmi Ram R/o V.P.O Mundka, New Delhi
3. Ram Kumar s/o late Sh. Harsaroop R/o V.P.O, Mundka, New Delhi
4. Zile Singh s/o late Shri Bhim Singh R/o V.P.O, Mundka, New Delhi
5. Umed Singh s/o Sh. Gokal Chand R/o V.P.O, Mundka, New Delhi
6. Nafe Singh s/o Sh. Mir Singh R/o V.P.O, Mundka, New Delhi
7. Satbir Singh s/o Shri Fateh Singh R/o V.P.O, Mundka, New Delhi
8. Jai Prakash s/o Sh. Ram Mehar R/o V.P.O, Mundka, New Delhi
9. Parveen Kumar s/o Sh. Om Prakash R/o V.P.O, Mundka, New Delhi
10. Anil Kumar s/o Sh. Dhir Singh R/o V.P.O, Mundka, New Delhi
11. Balraj s/o Shri Ganeshi R/o V.P.O, Mundka, New Delhi
12.Rajinder Kumar s/o Mohan Lal R/o V.P.O, Mundka, New Delhi
13.Satpal s/o Shri Mir Singh R/o V.P.O, Mundka, New Delhi
14.Rajpal s/o Shri Neki Ram R/o V.P.O, Mundka, New Delhi
15.Fateh Singh s/o Shri Baldeva R/o V.P.O, Mundka, New Delhi
16.Kartar Singh s/o Shri Ram Phal R/o V.P.O, Mundka, New Delhi
17.Braham Parkash R/o V.P.O, Mundka, New Delhi
18.Suresh Kumar s/o Shri. Hardatt Singh R/o V.P.O, Mundka, New Delhi
...... Plaintiffs
Vs.
1. Om Parkash S/o late Sh. Hukmi R/o Village Hiran Kudna New Delhi
2. Ram Kumar Singh s/o Late Sh. Pratap Singh R/o House No. 472, V.P.O Mundka New Delhi
3. Sh. Rambir Singh S/o Sh. Pratap Singh R/o V.P.O Mundka New Delhi
4. The Gaon Sabha Mundka Through its B.D.O (West) B.D.O Compex, Rohtak Road Nangloi, New Delhi-110041
.... Defendants
Date of Institution : 07.10.2013
Date on which reserved : 05.10.2021
Date of Judgment: 21.10.2021
SUIT FOR PERMANENT & MANDATORY INJUNCTION
JUDGMENT
1. The present suit for permanent and mandatory injunction has been filed by the abovementioned 18 plaintiffs, all of whom claim to be residents of Mundka village, against the defendants.
PLAINTIFFS' VERSION:
2. The case of the plaintiff in brief is that:
a. The plaintiffs are residents of village Mundka, New Delhi and are in joint use, occupation and possession of plot bearing no. 776/1/2/2 area measuring 2 biswas, situated in the area of extended lal dora, Village Mundka, New Delhi (hereinafter referred as 'suit property');
b. The suit property comprises of a well which is used by the plaintiffs along with the other villagers; c. The members of the Julaha samaj/scheduled caste community specifically used this well for religious purposes;
d. Defendant No. 1 has conspired with defendant No. 4 to usurp the suit property and a collusive suit (bearing No. 362/09) has been filed by the defendant no. 1 through defendant No. 2 against the block development officer; e. The abovementioned collusive suit is with respect to plot bearing No. 776/1/2/1, Village Mundka, New Delhi but the present suit property has also been included in the side map filed therein with a view to unlawfully grab the well which is reserved for public purposes; f. Defendant no. 3 has illegally installed an electricity connection in his own name in the suit property; g. The ownership of the suit property vests with the gram sabha and not with defendant No. 1,2, and 3; h. The well is situated on the suit property and the same is evident from the revenue records and demarcation report prepared by the revenue department;
i. The grievance of the plaintiff is that the defendant no. 4, SDM, BDO and SHO concerned are not taking any action against defendant No.1,2, and 3 and defendant No. 4 is conspiring with the other defendants so as to enabled them to grab the land;
j. Moreover, on 15.09.2013, defendant 1, 2 and 3 along with certain unidentified mussel man reached the suit property and tied to encroach upon it.
3. Therefore, the plaintiff was constrained to file the present suit seeking permanent and mandatory injunction.
VERSION OF DEFENDANT NO. 2:
4. The case of the defendant no. 2 as stated in his written statement is as follows:
a. The plaintiffs are neither the owners nor in possession and occupation of the suit property and thus have no locus standi to file the suit;
b. As per the plaintiffs' own case, defendant no. 4 Gaon Sabha is the owner of the suit property;
c. Defendant No. 2, and 3 are also residents of the same village and have the same right as the plaintiffs to use the suit property;
d. The well situated on the suit property has not been in use since the last 30 years and the water in village Mundka is supplied by Delhi Jal Board;
e. There is no collusion among any of the defendants and defendant no. 1 is the co-owner of property in khasra no. 776/1/2/1, Village Mundka, New Delhi and has been in possession of the same since 35 years;
f. The defendants have not wrongfully and deliberately included the suit property in the site map filed in the suit bearing No. 362/09;
g. The plaintiffs has not filed any document showing that the suit property was used by members of Julaha Samaj or any weaker section /schedule caste community; h. Defendant no. 1 never tried to encroach upon the suit property.
Therefore, it has been prayed that the suit of the plaintiff be dismissed with cost.
VERSION OF DEFENDANT NO. 4:
5. The case of defendant No. 4 in brief is:-
a. The plaintiffs have no locus standi as they are neither the owners nor in possession of the suit property; b. As per the revenue records (aks sizra, demarcation report and khatoni) of the suit property, the land belongs to gaon sabha and the gaon sabha has not acted as collusion with the defendants;
c. The plaintiffs have not filed any document to show that the well on the suit property was used by the Julaha Samaj/Schedule Caste community;
Therefore, it has been prayed that the suit of the plaintiff be dismissed with cost.
REPLICATION:
6. In the replication to the written statements of defendant No. 2 and 4, the plaintiffs denied the averments therein and reaffirmed the case as stated in the plaint. The plaintiffs further asserted that they have a right to file the present suit as they are the members of the Gaon Sabha.
DEFENDANT NO. 1 AND 3 PROCEEDED EX-PARTE:
7. No written statement was filed by defendant No. 1 and 3 and vide order dated 26.02.2014, they were proceeded ex-parte.
ISSUES:
8. From the pleadings, the following issues are framed:
1. Whether the plaintiff has no locus standi to file the present suit? OPD
2. Whether the suit is not maintainable in the present form and nature? OPD
3. Whether the suit is bad for non-joinder and mis joinder of necessary parties? OPD
4. Whether the plaintiff is entitled for the decree of permanent injunction as prayed for against defendant No. 1 to 4? OPP
5. Whether the plaintiff is entitled for decree of mandatory injunction as prayed for? OPP
6. Relief.
EVIDENCE
9. Plaintiff No. 3 was examined as PW-1 who placed reliance upon the following documents:- Ex. PW-1/1 (OSR) Voter I Card of PW-1 Ex. PW-1/1A Certified copy of order dated 20.12.2013 in CS No. 362/09 Ex.PW-1/2 Site map Ex.PW-1/3 Demarcation report
10. Certain other documents i.e. Mark A to Mark P were also relied upon by PW-1. However, since they were only photocopies, defendant No. 2 objected to their admissibility on the ground of mode of proof.
11. Thereafter, PW-2 Sh. Dharmanand, Patwari from office of SDM, Punjabi Bagh, New Delhi was examined. He relied upon the following documents:
Ex.PW-2/1 (OSR) Khatoni of Khasra No. 776/1/2/2 for the year 2005-2006 Ex. PW-2/2 (OSR) Aks sizra for the year 1976-1977 for village Mundka Ex.PW-2/3 Certified copy of demarcation report dated 13.12.2016 Ex. PW-2/4 Certified copy of the report stating that demarcation report dated 19.11.2008 is in the record of suit No. 362/09
12. Both the witnesses were duly cross examined and discharged. Thereafter PE was closed and the matter was fixed for DE.
13. In DE Sh. Rajesh Kumar, Patwari from SDM Office, Punjabi Bagh, Nangloi, Delhi was examined as DW-1. He placed reliance upon only one document i.e. Khatoni of Khasra No. 776/1/2/2 for the year 2005-2006 (Ex DW-1/1). Defendant No. 2 was examined in chief as DW-2 who placed reliance upon his evidence affidavit Ex. DW-2/A. Thereafter, DW-3 Sh. Chhedi Lal Maurya, JA, Record Room, Tis Hazari, Delhi was examined as DW-3 and he has placed reliance upon certified copy of appeal and judgment order dated 31.10.2016 in RCA No. 11/2014 (Ex. DW-3/1 (colly)). Lastly, Sh. Narender Kumar, Record Keeper from Revenue Department, Tis Hazari, Delhi was summoned and examined as DW-4. He placed reliance upon only one document i.e. Khasra girdawari of khasra no. 776/1/2 pertaining to the year 1988-1989 (Ex. DW-4/1). All the witnesses were duly cross examined and discharged and thereafter, DE was closed.
ISSUE WISE FINDINGS Issues nos. 1 and 2:
Whether the plaintiff has no locus standi to file the present suit? OPD Whether the suit is not maintainable in the present form and nature? OPD
14. Both these issues are being taken up together as they involve common appreciation of evidence and law and because similar arguments have been advanced by both the parties with respect to both of them.
15. On behalf of the defendant no. 2, it has been argued that the plaintiffs have no personal right over the suit property as they neither own it nor are in possession of the same. It has been further argued that the suit property vests with the defendant no. 4 (Gaon Sabha) and the plaintiffs themselves have only claimed to have a right to use the well situated therein, in common with the other villagers, and hence the suit is not maintainable as the plaintiffs lack the locus standi to file it. Reliance has been placed upon Section 91 CPC in this regard and it has been submitted that neither did the plaintiffs obtain the leave of the court to file the present suit nor have they made any averment regarding any special damage which has been caused to them because of the defendant's allegedly unlawful act. Therefore, the suit is liable to be dismissed on this ground alone. The defendant no. 2 has additionally also argued that the plaintiffs have failed to comply with the requirements in Order I Rule 8 CPC and hence the suit is liable to be dismissed on this ground as well.
16. Ld. counsel for defendant no. 4 has advanced arguments on similar lines as the defendant no. 2 and has submitted that the plaintiffs have no right or interest over the suit property and have not suffered any special damage. It has been further argued that the well situated on the suit property is for common use of all the villagers and was not specifically used by the Julaha samajh or any other community, as alleged by the plaintiffs.
17. On the other hand, ld. counsel for the plaintiffs has argued that the plaintiffs are residents of the village Mundka and therefore by virtue of Section 151 of Delhi Land Reforms Act, 1954, they are members of the Goan Sabha and have the right to use the lands vested in it. It has been further submitted that the suit has not been filed in a representative capacity and therefore, Order 1 Rule 8 CPC is not applicable. With respect to the locus standi of the plaintiffs as well the merits of the case, reliance has been placed upon Jagpal Singh and ors v. State of Punjab [(2011) 11 SCC 396].
18. At the outset, it must be stated that the suit has not been filed by the plaintiffs in representative capacity and hence the question of non-compliance with Order I Rule 8 CPC does not arise. Merely because multiple persons have joined hands as plaintiffs before this court, does not imply that the suit has been filed on behalf of all the residents of the village.
19. It is settled law that nuisance is of two types: public and private. With respect to public nuisance or other wrongful acts affecting the public, a suit can be filed only after compliance with Section 91 CPC. However, a suit which is based upon private nuisance or where there is infringement of any special personal right, or threat of such infringement, can be instituted by the person aggrieved directly without having to resort to Section 91 CPC.
20. Before proceeding forward, it is necessary to consider the law contained in Section 91 CPC which reads as under:
91. Public nuisances: (1) in the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction or for such other relief as may be appropriate in the circumstances of the case, may be instituted,"
(a) by the Advocate General, or
(b) with the leave of the Court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act.
Nothing in this Section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provisions.
21. Thus, as apparent from the sub-clause (2), the right of the plaintiff to file a suit has not been taken away and it is not otherwise affected by sub-clause (1) and can be exercised independently of it. In Suresh Chander Goyal v. Davinder Singh [2016 SCCOnline Del 3899] it was held that:
"A plain reading of section 91 makes it very clear that there are two modes of escape from the special restriction of section 91 namely proof of special damage and proof of invasion of the special rights of a limited class which will give an independent right of action. If the suit is treated to be in the individual capacity, what would be required of the plaintiffs would be the proof of the nuisance causing damages or violation of any personal or private rights."
22. The Court will now proceed to analyze whether the present suit deals with infringement of private rights or with public nuisance. In the present suit, the plaintiffs have claimed to have a common right to use the well situated on the suit property by virtue of being members of the Goan Sabha and by virtue of being residents of Mundka village. They have not claimed to have any personal right over the suit property or over the well. All that has been averred in the plaint is that the members of the Julaha samaj, a scheduled caste community, used the well for religious purposes. However, the plaint is conspicuously silent upon what exactly this religious purpose is. There are no details about what religious rites or ceremonies the well is/was used for by members of the Julaha community and on what occasion was it so used. PW-1 has also failed to provide these necessary details in his examination in chief by way of affidavit Ex PW-1/A. Further, a meticulous perusal of the entire documentary evidence led by the plaintiffs also reveals that there is absolutely no material on record which shows that the plaintiff has any special right over the suit property or has suffered any special damage on account of its alleged infringement. Thus, no infringement of private right or occurrence of any constituting private nuisance is made out. All that has emerged from the pleadings as well as the evidence of the plaintiffs are allegations of public nuisance and violation of a right available to all the residents of the village Mundka.
23. In these circumstances, it was imperative for the plaintiffs to comply with Section 91(1)(b) CPC and to seek the leave of this Court for instituting the suit. No such leave was taken at the initial stage of institution of the suit or at any later stage. An application under Section 91 and Order I Rule 8 CPC was filed by the defendant no. 2 seeking dismissal of the suit but the same was not pressed and was therefore, kept pending, as noted in order dated 05.04.2016.
However, merely because the defendant no. 2 did not press his application at an earlier stage, does not cure the defect in the suit attributable to the plaintiffs.
24. At this stage, it is also essential to analyze the law laid down in Jagpal Singh (supra). Since the ld. counsel for the plaintiff has strongly relied upon this judgment, the Court deems fit to deal with it in some detail. The factual matrix in Jagpal Singh (supra) was that the Gram Panchayat had filed an application under Section 7, Punjab Village Common Lands (Regulation) Act, 1961 for eviction of certain unauthorized occupants and trespassers from common village land consisting of a pond. The concerned Collector, instead of ordering the eviction, ordered that the Gram Panchayat should recover the cost of land from such trespassers. Against this order, an appeal was filed by certain persons before the Commissioner concerned, who allowed the appeal and held that since the pond was meant for public purpose, no person could be allowed to encroach upon it and that it appeared that the Gram Panchayat was in collusion with the trespassers. This order of the ld. Commissioner was challenged before the Hon'ble High Court of Punjab and Haryana by way of an appeal which was disallowed. The matter thereafter reached the Hon'ble Supreme Court wherein the Supreme Court affirmed the decision of the Hon'ble High Court. While deciding upon the appeal, the Hon'ble Apex Court stated that lands meant for common use of villagers cannot be encroached by anyone and such illegal acts cannot be regularized.
25. Having thoroughly considered the facts of the case in Jagpal Singh (supra) and the law laid down therein, this Court finds that it does not buttress the case of the plaintiffs for reason that it does not deal with Section 91 CPC at all. Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 allows any inhabitant of a village to file an application for ejectment of any unauthorized occupant from any land in the shamalat deh of the village which vests or is deemed to vest with the Panchayat. There is no such corresponding provision in the Delhi Land Reforms Act 1954, nor has the plaintiff pointed out any other law which authorizes him to file a civil suit without obtaining the leave under Section 91(1) CPC. Hence, Jagpal Singh (supra) does not rescue the plaintiff from the rigours of Section 91 CPC.
26. Thus, the suit is liable to be dismissed for non-compliance with mandatory provision of Section 91(1) CPC and issues no. 1 and 2 are decided in favour of the defendants.
Issue no. 3:
Whether the suit is bad for non-joinder and mis joinder of necessary parties? OPD
27. With respect to this issue, no evidence has been led by either of the parties. The sole argument advanced by the defendant no. 2 with respect to this issue is that suit property consists of a well, which is a water body, and therefore the Delhi Jal Board is a necessary party. No further argument was advanced either orally or in writing on this aspect.
28. A necessary party is a person who ought to have been joined as a party and in whose absence no effective decree can be passed. In the present suit, the entire suit property vests with the defendant no. 4 Gaon Sabha and there is nothing on record to show that the well situated therein vests with the Delhi Jal Board. Further, the grievance of the plaintiffs is against the four defendants only and not against the Delhi Jal Board, which is why no relief has been sought against the latter. Hence, on the basis of the material before this court, it cannot be said that the Delhi Jal Board is a necessary party and that the suit is bad for its non-joinder. Issue no. 3 is accordingly decided against the defendants.
Issue nos. 4 and 5:
Whether the plaintiff is entitled for the decree of permanent injunction as prayed for against defendant No. 1 to 4?OPP Whether the plaintiff is entitled for decree of mandatory injunction as prayed for?OPP
29. Since the plaintiffs have not instituted the suit properly after obtaining permission under Section 91(1) CPC, the reliefs sought by the plaintiffs cannot be awarded to them. In light of the findings on issues no. 1 and 2, issues no. 4 and 5 are liable to be decided in the negative.
30. Additionally, the first part of the decree of permanent injunction sought by the plaintiffs against defendant No. 1,2, and 3 is for restraining them from "encroaching upon the land of the well towards southern side by illegally erecting way thereby putting hindrance in the common use of the CS No. well and also from the land of well specifically shown red in the site plan attached". However, the plaint makes no mention of any alleged activity taking specifically from the southern side and only comprises of general allegations regarding actual as well as attempted encroachment. In these circumstances, the specific injunction as prayed for by the plaintiffs cannot be awarded on account of absence of relevant material information.
31. The decree of mandatory injunction sought by the plaintiffs against the defendant No. 4 is partly for directing the latter "to protect the common land of the well and to remove the door and the wall in the eastern side of the land of the well, which is installed/raised illegally, unauthorized with arbitrary manner by the defendants No. 1,2, and 3". Once again, the plaint is silent on the construction of any wall specifically on the eastern side, because of which the decree sought cannot be awarded.
32. Lastly, in the absence of any private interest, the injunctions as sought by the plaintiff cannot be awarded by virtue of Section 41(j) of the Specific Relief Act, 1963 which states that an injunction cannot be granted when the plaintiff has no personal interest in the matter.
33. Issues nos. 4 and 5 are accordingly decided against the plaintiffs.
Relief
34. From the above analysis and determination of the issues, this Court holds that the plaintiff has failed establish their case on the basis of preponderance of probabilities. Accordingly, the suit of the plaintiff stands dismissed. No orders as to cost. Let the decree sheet be prepared. File be consigned to record room.
Announced in Open Court today i.e. 21.10.2021
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