IN THE COURT OF GAURAV RAO, ADJ02 & Waqf Tribunal /
NEW DELHI DISTRICT, PATIALA HOUSE COURTS, NEW DELHI.
CS No. 481/17 (Old no. 1797/2008)
CNR No. DLND010053652016
Kuldeep Singh Hooda
S/o Shri Karan Singh
R/o Khasra No. 356,
Andheria More Near CRPF Camp,
Vasant Kunj, New Delhi110070
........Plaintiff.
Versus.
1. Shri Narender Mehlawat,
S/o Shri Nawal Singh,
R/o Flat No. B9/9258,
LIG Flat, Vasant Kunj,
New Delhi110070.
Also at:
65/9, Kishan Garh,
Vasant Kunj,
New Delhi110070.
2. Smt. Santoshi Mehlawat,
W/o Sh. Narender Mehlawat,
R/o Flat No. B9/9258,
LIG Flat, Vasant Kunj,
New Delhi110070.
CS No. 481/17 Kuldeep Singh Hooda Vs. Narender Mehlawat and ors. 1/45
Also at:
65/9, Kishan Garh,
Vasant Kunj,
New Delhi110070.
3. Shri Bishan Singh,
S/o Shri Nawal Singh,
R/o. 65/9, Kishan Garh,
Vasant Kunj,
New Delhi110070.
4. Smt. Sunita Singh,
W/o Shri Bishan Singh,
R/o 65/9, Kishan Garh,
Vasant Kunj,
New Delhi110070.
5. SHO
Vasant Kunj Police Station,
Vasant Kunj, New Delhi110070.
6. Govt. of National Capital
Territory of Delhi
through Secretary,
Land & Building Department,
Vikas Bhawan, IP Estate,
New Delhi.
....Defendants
Date of institution: 01.09.2008
Date on which reserved for judgment: 27.04.2018
Date of decision : 27.04.2018
Final Decision : Dismissed
JUDGMENT
1. The present suit for permanent injunction has been filed by the plaintiff against the defendants.
1.1 The suit was filed before Hon'ble High Court of Delhi on 01.09.2008 and in view of the notification No. 27187/DHC/Orgl. dated 24.11.2015, the same was transferred to Ld. District & Sessions Judge, New Delhi District, Patiala House Courts vide orders dated 02.12.2016 and thereupon assigned to this Court vide orders dated 21.02.2007.
1.2 The suit along with IA no. 1045/2008 and 11730/2008 was dismissed by the Hon'ble High Court of Delhi vide judgment dated 25.10.2010. However RFA (OS) no. 106/10 was preferred by the plaintiff and vide orders dated 01.12.2011, order/judgment dated 25.10.2010 was set aside with certain directions.
2. It is the case of the plaintiff is that he is in possession as "Gair Maroosi" (Nonoccupancy Tenant) of land bearing Khasra No. 2668/1120 (old) and now bearing new Khasra No. 356 total admeasuring 5 bighas 5 biswas situated within the Revenue Estate of Village Mehrauli, Tehsil Hauz Khas, New Delhi (hereinafter referred to as the suit property) from the year 1991 and his name is duly mutated/recorded in the Khasra Girdawri which is a revenue document maintained by the Halqa Patwari depicting the actual possession of the suit property.
2.1 It is further his case that he has been using the suit property for residential purposes and for the purpose of horticulture, floriculture & is running a nursery for the last 18 years after making considerable improvements in the suit property 2.2 It is further his case that the suit property is an evacuee property. It is further his case that the owners of the suit property being Mohammedens migrated to Pakistan on partition of the country and therefore, the ownership rights in the suit property were vested with the Custodian of Evacuee properties, Department of Rehabilitation and the suit property was mutated in the name of Central Government in the column of ownership and his name has been shown and described as " Gair Maroosi" ( nonoccupancy tenant) in the Khasra Girdawaries.
2.3 It is further his case that earlier he had filed a Civil Suit bearing No. CS (OS) No. 585 of 1999 (new Suit No. 624 of 2006) alongwith application U/O. 39 rule 1 and 2 CPC before Hon'ble High Court of Delhi against Shri Umar Mohammad, Shri Sunil Singh, Shri Satender Singh, Shri Shiv Raj Singh and the Government of National Capital Territory of Delhi through its Secretary Evacuee Property Cell, Department of Rehabilitation and Hon'ble High Court vide its order dated 17.03.1999 granted an exparte interim injunction restraining the defendants, their servants and agents from disturbing his possession over the suit property without following the due process of law.
2.4 It is further his case that the said case was transferred to the District Court at Tis Hazari due to increase in the pecuniary jurisdiction and the adinterim injunction dated 17.03.1999 was made absolute by Sh. K. S. Mohi, the then Ld. Additional District Judge vide order dated 23.08.2006 and the said suit is subjudice.
2.5 It is further his case that defendants in the said Civil Suit had filed an appeal before the Hon'ble High Court of Delhi against the order dated 23.08.2006 which was dismissed vide order dated 11.03.2008 passed in FAO No. 313/2006.
2.6 It is further his case that he has been in unhindered physical possession of the suit property since 1990 and the Khasra Girdawari from the year 1991 to 1999 shows his name in the column cultivator/possession. It is further his case that the Status report dated 31.07.2008 issued from the Office of the Deputy Commissioner, District South also proves his possession as on 31.07.2008. It is further his case that he also has an electricity connection in his name and has a ration card and Voter Identity Card bearing the address of the suit property.
2.7 It is further his case that defendant no. 1 and 3 operate a restaurantcumeatout, without any license or approval or sanction from any authority, in the name of Seven Food Court from Khasra No. 353 which is just adjacent to and falls in front of the suit property and land comprised in the Khasra No. 353 is a Custodian Land and the defendant no. 1 and 3 have been illegally occupying the said land.
2.8 It is further his case that that defendant No. 1 and 3 have no license to sell any liquor or wine from their said restaurant but still under the tacit approval of the local police they offer and sell wine and liquor to the customers, as well as throw garbage in the suit property which acts cause inconvenience to him and nuisance in the area. It is his case that same is being done with the sole object to dispossess him and encroach upon the suit property.
2.9 It is further his case that his wife Smt. Shakuntala Hooda filed a various complaints including FIR No. 622 dated 20.08.2007 with Police Station Vasant Kunj, also with DCP and the SDM, against defendant no. 1 to 4 for their criminal acts and attempts to commit trespass, encroachment, assault and intimidation but no action has been taken against defendant no. 1 to 4 as the local police is hand in glove with them. It is further his case that one FIR bearing no. 414/2008 was registered against the plaintiff, his wife and one Dharmender.
2.10 It is further his case that land comprising khasra no. 353 is likely to be used in expansion of MehrauliMahipalpur Road and thus defendant no. 1 to 3 want to encroach upon the suit property. It is further his case that that threat of trespass and encroachment is still continuing and he fears that the defendant in connivance with the local police would encroach upon the suit property in which he has been residing for the last 18 years without any allegations of any sort and from any quarter against them. 2.11 Hence the present suit.
Written Statement of defendant no. 1 to 4.
3. Though written statement was filed by defendant no. 1 to 4 however vide orders dated 09.07.2010 it was directed to be struck off the record.
3.1 Suit was initially filed against defendant no. 1 to 5 however vide orders dated 01.09.2008 Government of NCT of Delhi, Department of Land and Building, through its Secretary, was impleaded as defendant no. 6.
Written Statement of defendant no. 5
4. No written statement was filed by defendant no. 5 despite opportunity given.
Written Statement of defendant no. 6
5. It was pleaded that present suit is barred under section 46 of the Administration of Evacuee Property Act, 1950 and Section 36 of the Displaced Persons ( Compensation and Rehabilitation) Act, 1954 and thus is liable to be dismissed on this ground alone.
5.1 It was further pleaded that that suit of the plaintiff is not maintainable as the suit property is admittedly an evacuee property and plaintiff is a trespasser & an unauthorized occupant. It was further pleaded that the answering defendant being the Custodian of the Evacuee Property, is the true owner of the suit property and plaintiff has no right, title or interest in the same.
5.2 It was further pleaded that plaintiff has not approached the court with clean hands as he has encroached upon the suit property and the alleged khasra girdarwies were got recorded in connivance with the then Revenue officials.
5.3 It was denied that plaintiff is in possession of the suit property as Gair Maroosi (nonoccupancy tenant) from year 1991 or that he has been using the suit property for the purpose of Horticulture/floriculture and running a Nursery after making considerable improvement on the suit property. It was pleaded that Gair Maroosi has no legal right over the property. It was further pleaded that plaintiff has not paid any rent or damage charges in respect of the suit property.
5.4 It was pleaded that plaintiff has no right, title or interest over the suit property and the alleged Khasra gidrawari recorded in name of plaintiff is against the provisions of Punjab Land Revenue Act and rules made there under which govern the suit property. It was further pleaded that no notice or intimation was sent by the revenue staff to the defendant while making entries in the alleged khasra girdawari and when said khasra girdwari came to its knowledge it wrote a letter dated 21.01.1999 to the concerned Sub Divisional Magistrate advising him to strike of the name of unauthorized occupant from the same.
5.5 It was pleaded that defendant no. 1 to 3 are also illegal occupants of property bearing Khasra no. 353, which is also an evacuee property. It was pleaded that they are allegedly running a restaurant in the name of Seven Food Court from therein which is illegal as no permission or authority to run any such establishment has been conferred by it. It was pleaded that the present suit appears to be a collusive one to defeat the rights of the answering defendant in the suit property.
Issue
6. In terms of directions dated 01.12.2011 passed in FAO (OS) NO. 106/10 the following preliminary issue was framed vide proceedings dated 23.04.2012:
1. Whether the present suit is maintainable in the facts and circumstances of the present case?
Plaintiff's evidence
7. Plaintiff filed his affidavit, in terms of orders dated 23.04.2012 and relied upon the following documents:
1. Certified copy of Field Book as Ex. PW1/1.
2. Certified copy of Khasra Girdawaries for the year 19901994 as Ex. PW1/2.
3. Certified copy of Khasra Girdawaries for the year 19941998 as Ex. PW1/3.
4. Certified copy of Khasra Girdawaries for the year 1999 as Ex. PW1/4.
5. Certified copy of application dated 21.07.2008 as Ex. PW1/5.
6. Status report dated 31.07.2008 as Ex. PW1/6.
7. Certified copy of order dated 23.08.2006 as Ex. PW1/7.
Defendant's evidence
8. Defendants did not file any evidence by way of affidavit.
Findings
9. I have heard the rival contentions raised at bar and perused the records carefully.
9.1 My issuewise finding is as under:
1. Whether the present suit is maintainable in the facts and circumstances of the present case?
9.2 In nutshell the case of the plaintiff is that he is occupying the suit property, which is governed by Punjab Tenancy Act 1887, as Gair Maroosi (nonoccupancy tenant) since the year 1991, however defendant no. 1 to 4 are interfering in his possession and are bent upon trespassing into the suit property with an intention to dispossess him from the same. Plaintiff is thus seeking permanent injunction against defendant no. 1 to 4, their servants, agents etc. from interfering in his peaceful possession, enjoyment of the suit property or from encroaching upon the same.
9.3 To buttress his case plaintiff has vehemently relied upon the khasra girdawris for the year 1991 to 1999 as well as status report dated 31.07.2008 i.e. Ex. PW1/2 to Ex. PW1/6 respectively. He is also replying upon field book i.e. Ex. PW1/1 in support of his case.
9.4 However in my considered opinion merely on the strength of entires in the khasra girdawris or the status reports, which merely record the occupation of the suit property by the plaintiff, the plaintiff is not entitled to the relief, decree of permanent injunction as prayed for. This is irrespective of the fact that the defendants have not been able to prove that the entry in the Khasra Girdawris, revenue record is forged or fabricated as was claimed by them and the law laid down in Karewwa and ors Vs. Hussensab Khansahab Wajantri and ors 2002 (10) SCC 315 as was relied by Ld. counsel for the plaintiff for presumption of correctness of revenue records.
9.5 At best the case of the plaintiff is that he is Gair Maroosi and in occupation of the suit property in that capacity since 1991. Gair Maroosi is nonoccupancy tenant. As per the admitted case the owner of the suit property is the government. The ownership vests with the Central government. It being an evacuee property the custodian is the Government of NCT of Delhi. Admittedly he is not paying, has not paid any rent to the owner i.e. the Government of NCT of Delhi. Being the nonoccupancy tenant plaintiff has no right to continue to possess, occupy the suit property. He has no right to seek an injunction to maintain the possession. Before proceeding further it will be worthwhile to highlight the observations made in order dated 25.10.2010 as discussed above. The relevant portion read as under:
"7. There are eight Khasra Girdawaris placed on the record; they are not certified copies. All of them record the Central Government as owner of the land. The Khasra Girdawari for the Rabi crop for the period 03.11.1991 to 13.03.1992 mentions Makbooja Malik. The subsequent revenue documents in column 3 of FormII of the Khasra Girdawaris discloses the plaintiff's name as having cultivated the area of 5 bigha 5 biswa, of the suit property. These documents do not record when the plaintiff entered into possession, nor the terms upon which he was handed over the lands. Column 8 also does not reflect in the Khasra Girdawaris - as for the period after 31.03.1993, the status as regards possession and rent. The Khasra Girdawaris also state that the cultivation is that of a non occupant.
9. The GNCT, through its Land and Building Department, submits that the suit is not maintainable as the Custodian of the Evacuee Property is the true and lawful owner and that the plaintiff had never been granted permission or license to enter upon the property or carryout cultivation, as is alleged in the suit. GNCT denies that the plaintiff is a "Gair Maroosi" tenant; it alleges that the Khasra Girdawaris relied upon were illegally recorded and that action was taken pursuant to a letter written to the concerned SDM on 21.01.1999. The GNCT also contends that the suit allegations are incorrect and contrary to the express provisions of the Punjab Tenancy Act. Reliance is placed upon Section 5 of the Punjab Tenancy Act, 1887 (hereafter called "the Act"), to say that only four classes of tenants have a right to remain on revenue lands and that the plaintiff does not belong to any of those categories. In these circumstances, the plaintiff's claim to occupancy is no better than that of a trespasser, who cannot seek an injunction restraining the principal owner from taking appropriate steps.
11. Before considering the rival contentions, it would be essential to extract the relevant provisions of the Act. They are as follows:
"5. Tenants having right of occupancy (1) A tenant (a) (a) who at the commencement of this Act has for more than two generations in the male line of descent through a grandfather or granduncle and for a period of not less than twenty years, been occupying land paying no rent therefore beyond the amount of the landrevenue thereof and the rates and cesses for the time being chargeable thereon; or
(b) who having owned land, and having ceased to be landowner thereof otherwise than by forfeiture to the Government or than by any voluntary act, has since ceased to be landowner continuously occupied the land; or
(c) who in a village or estate in which he settled along with or was settled by the founder thereof as a cultivator therein, occupied land on the twenty first day of October, 1868, and has continuously occupied the land since that date; or (Omitted by the India (Adaptation of Existing Indian Laws) order, 1947, section 4 (1). Provisions about Mrqarridars had been added by Punjab Alt 11 of 1925)
(d) who being jagirdar of the estate or any part of the estate in which the land occupied by him is situate, has continuously occupied the land for not less than twenty years, or, having been such jagirdar, occupied the land while he was jagirdar and has continuously occupied it for not less than twenty years, has a right of occupancy in the land so occupied unless, in the case of a tenant belonging to the class specified in the clause (c), the landlord proves that the tenant was settled on land previously cleared and brought under cultivation by, or at the expense of, the founder. (2) If a tenant proves that he has continuously occupied land for thirty years and paid no rent therefore beyond the amount of the landrevenue thereof and the rates and cesses for the time being chargeable thereon, it may be presumed that he had fulfilled the conditions of clause (a) of subsection (1). (3) The words in that clause denoting natural relationship denote also relationship by adoption, including therein the customary appointment of an heir and relationship, by the usage of a religious community.
10. Right of occupancy not to be acquired by joint owner in land held in joint ownership In the absence of a custom to the contrary, no one of several joint owners of land shall acquire a right of occupancy under this Chapter in land jointly owned by them.
39. Grounds of ejectment of occupancy tenant (1) A tenant having a right of occupancy shall be liable to be ejected from his tenancy on any of the following grounds, namely :
(a) that he has used the land comprised in the tenancy in a manner which renders it unfit for the purposes for which he held it;
(b) where rent is payable in kind, that he has without sufficient cause failed to cultivate that land in the manner or to the extent customary in the locality in which the land is situate;
40. Grounds of ejectment of tenant for a fixed termA tenant not having a right of occupancy by holding for a fixed term under a contract or a decree or order of competent authority, shall be liable to be ejected from his tenancy at the expiration of that term, and, on any of the following grounds, before the expiration thereof, namely:
(a) that he has used the land comprised in the tenancy in a manner which renders it unfit for the purposes for which he held it ;
(b) where rent is payable in kind, that he has without sufficient cause failed to cultivate that land in the manner or to the extent customary in the locality in which the land is situate;
(c) on any ground which would justify ejectment under the contract, decree or order.
41. Ejectment of tenant from year to year A tenant who has not a right of occupancy and does not hold for a fixed term under a contract or a decree or order of competent authority, may be ejected at the end of any agricultural year.
12. What can be discerned from the above discussion is that the plaintiff, claiming to be a gair maroosi, (nonoccupant cultivator) of the suit property, alleges threat to his possession of the suit lands; they are agricultural in nature. The documents on record concededly show that the GNCT is shown as the owner of the lands, till 1993, the Khasra Girdawaris reveal that the GNCT was in occupation. Thereafter, no doubt, the Girdawaris record the plaintiff's cultivation, as a nonoccupant. However, those documents nowhere reveal how the plaintiff secured possession. They do not say what were the terms under which the tenancy, or occupancy, or right to cultivate, was given to, or granted to him.
13. In order for anyone to successfully urge existence of lawful possession as tenant to enjoin another from disturbing it, he has to establish that the possession or occupation began or originated lawfully. In the case of tenancies, particularly agricultural tenancies, the occupier has to establish when and what terms were agreed, with the owner. This was held in Hanmanta Daulappa Nimbal Since Deceased by His Heirs And Lrs v. Babasaheb Dajisaheb Londhe (1995) 6 SCC 58 in the following words: "The appellant could have got lawful possession over the lands, if there would have been an agreement with the landlord and pursuant thereto the landlord inducted the tenant in possession for beneficial enjoyment of the demised land on payment of premium or rent etc. or there would have been acquiescence of the landlord, for the tenant continuing to possess by accepting the rent. Since the claim of the appellant that he came into possession in the year 196869 under oral lease was not conclusively accepted and there is no proof that the landlord had accepted any rent, the appellant is a trespasser on the land. The suit was filed for injunction against the appellant. The burden is on the appellant to establish his lawful possession. Except the oral tenancy, no other evidence was brought on record. Entries in the revenue records cannot be establish lawful possession, when, admittedly, no notice was given to the respondent before making those entries. The other circumstance is payment of land revenue to the Government through Talathi (village servant). For the payment thereof also, there is no notice or acquiescence by the landlord.
7. If these two circumstances are excluded, then the only fact is on the land, but the possession cannot be said to be lawful possession. In other words, his possession is of a trespasser, which is not protected by the Act.
14. If the above considerations are kept in mind, the plaintiff never showed that he entered into possession of the suit lands, lawfully. The Khasra Girdawaris no doubt show that he was cultivating the lands, from time to time. However, there is no document showing whether the plaintiff paid rents to the owner, i.e. GNCT. In these circumstances, the Court holds that the plaintiff's possession cannot be called lawful.
15. There is another aspect, which is relevant, and cannot be ignored.
It is that an occupier of immovable property cannot, in the absence of proof of having got possession of the property, seek injunction against the true and lawful owner, to restrain his dispossession.
16. In view of the above discussion, this Court holds that the suit has to be dismissed, for the plaintiff's failure to produce any document to establish that he is in lawful occupation of the land in question. The suit is, therefore, dismissed, with costs. Accordingly all the pending applications are dismissed"
9.6 It will also be pertinent to go through the definition of "rent", "tenant" and "landlord" as per the Punjab Tenancy Act 1887. Section 4 which provides the definition is reproduced hereunder:
(3) "rent" means whatever is payable to a landlord in money, kind or service by a tenant on account of the use or occupation of land held by him. (5) "tenant" means a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that other person, but it does not include:
(a) an inferior land owner, or
(b) a mortgagee or the rights of a landowner, or
(c) a person to whom a holding has been transferred, or an estate or holding has been let in farm, under the Punjab Land Revenue Act, 1887, for the recovery of an arrear of land revenue or of a sum recoverable as such an arrear, or
(d) a person who takes from the [Government] a lease of unoccupied land for the purpose of subletting it.
"(6) "landlord" means a person under whom a tenant holds land, and to whom the tenant is, or but for a special contract would be, liable to pay rent for that land,"
9.7 Thus, a combined reading of subsections (5) and (6) of Section 4 makes it abundantly clear that tenant is a person who holds the land under another person i.e. landlord, and he, or but for a special contract would be liable to pay rent to the landlord. In the case at hand, admittedly no rent is being paid and no "special contract" in terms of sub sections (5) and (6) (ibid) has been proved or pleaded. Thus, there is no relationship of tenant and landlord between the parties. Plaintiff wants to derive benefit of the term "gair marusi" as recorded in the revenue record and khasra girdawari entries. It is settled law that the term "gair marusi" generally means and denotes a tenantatwill. The terms "gair marusi" and "tenant" are synonymous. But if in column in the revenue records/khasra girdawris, which denotes payment of rent, is kept blank or does not depict payment of a peculiar kind of rent, then the person in occupation, though recorded as "gair marusi" cannot be treated as a tenant.
9.8 It is not his case that his forefathers were in occupation, possession of the suit property prior to him or that they were inducted as a tenant by the government, concerned authorities etc. Admittedly he was not inducted as a tenant by the Central Government or the Government of NCT of Delhi and accordingly no rent was ever paid or tendered. This is the reason why the rent coloumn in Khasra Girdawris is vacant. It was held in Jug Lal and others Versus Raghbir Singh (Dead) through his LRs RSA No.255 of 1993 (O&M) dated 28.01.2014 as under:
"Insofar as the second question of law is concerned, admittedly, defendants No.1 to 6 are not recorded paying any rent to the plaintiffs. All that has been recorded is their status as gair Marusi tenant (tenant at will). The Supreme Court in the case of "Natha Singh and others Vs. The Financial Commissioner, Taxation, Punjab and others" 1976 PLJ 293 says that in the absence of payment of rent or in the absence of material to show that there is a contract absolving the latter of the liability to pay rent, would not clothe the latter person in possession with the status of a tenant. Similarly in the case of Jarnail Singh (deceased) Vs. The Dialpur Bhaika Cooperative Agricultural Service Society Ltd. Dialpur Bhaika" 1983 PLJ 99, it has been held that tenancy is always a matter of contract, may be either expressed or implied and in order to find out the status of a tenantatwill, reference has to be made to the column of rent. If no evidence is found regarding payment of rent, the possession is not as a tenant. In the case of "Ram Rakha and another Vs. Pritam Singh" 1984 PLJ 83, it has been held that if there is an entry in the jamabandi of tenantatwill without payment of rent, no conclusion can be drawn that his possession is of a tenant. In the case of "Surjit Singh Vs. The Dialpura Bhaika Cooperative Agricultural Service Society Ltd. Dialpura Bhaika" 1984 PLJ 554, it has been held that any occupant of agricultural land other than owner is generally entered as tenantatwill but the payment of rent determines status of occupant. .......Consequently, this question of law is also decided in affirmative in favour of the plaintiffs holding that in order to find out the status of a tenantatwill, recorded in the revenue record, the column of rent is to be considered. If the tenantatwill is not paying any rent either in cash or by way of share in crop, then he would not be considered to be a tenant over the land in dispute."
9.9 In Daroga vs State Of Haryana And Others Civil Writ Petition No.17442 of 2011 dated 30.11.2012 it was held as under:
"The land, in dispute, is, admittedly, recorded as ownership of the Gram Panchayat, The petitioner has not been able to prove by way of any entry in the record of rights or otherwise that he has any right, title or interest in the land, in dispute..........The petitioner's plea that as he is recorded as "Gair Marusi" in the column of cultivation, it proves that he is tenant at will, does not entitle the petitioner to any benefit as the expression "Gair Marusi" is meaningless, without a lease deed or an entry in the column of rent, recording the rate of rent. In the absence of any entry as to the rate of rent or any other evidence, the petitioner is an unauthorised occupant of Gram Panchayat land, without any right, title or interest, therein."
9.10 In Ram Chander Etc vs Jai Narayan Etc RSA No. 4802 of 2011 (O&M) dated 29.01.2016 it was held as under:
"As per view taken by Coordinate Bench of this Court, a Gair Marusi (tenant) cannot acquire the status and right of Marusi (occupancy tenant). The Coordinate Bench of this Court took this view in Jaleb Khan and Others v. Commissioner, Gurgaon Division, Gurgaon and Others 2009(4) RCR (Civil) 385 . As per Section 4(5) of the Punjab Tenancy Act, any person, being in unauthorized possession, can be described as Gair Marusi (tenant) and his status cannot be equated with the person of having status of tenant unless in the rent column, it is disclosed that such person is liable to pay rent."
9.11 In Bhag Singh vs State of Punjab CWP No.14650 of 2001 dated 10.12.2014 it was held as under:
"Admittedly, land in question has been described as Central Government property in the ownership column. Thereafter, that property has been transferred vide notifications dated 03.06.1961 and 29.03.1963 to the State of Punjab being evacuee property and as such the Punjab Government has become owner of the said property. Petitioners have claimed their possession over the land in question as gair marusi tenant. Perusal of jamabandi for the year 199697 (Annexure P7) reveals that column No.9 is blank. It is nowhere mentioned as to in what capacity petitioners came into possession of the property nor any other evidence has been led as to how they became tenant in the property in question either under the Central Government or State Government by way of lease or in any other manner. In view of the settled principle of law that when rent column is blank and does not depict the status of cultivator shown in column No.5, person cannot be treated as gair marusi tenant.
This Court in RSA No.185 of 1986 titled 'Kuldip Chand v. Jagdish Lal and others' decided on 22.01.2014 has held as under: "A perusal of jamabandi Ex.PA clearly indicates that in cultivation column word 'gair marusi' has been mentioned but column No.9, which is rent column, is blank. When rent column is left blank it does not mean that appellant is tenant of this land, he is only occupant. Entry in rent column i.e.column No.9 determines the capacity of the person in which he is occupant of the land. Division Bench of this Court in Mukhtiar Singh vs. State of Haryana, 2013 (3) PLR 433 has held that phrase 'gair marusi' merely refers to an occupant of land and only if it was accompanied by an entry of payment of rent, in the relevant column of the revenue record, would raise inference of a tenancy. It is to be noticed that many a times word 'gair marusi' is mentioned in column No.5, however, in the rent column it is mentioned as lessee or on chakota. If the rent column is left blank then it will be deemed that possession of the appellant is not as tenant."
9.12 In Chand Singh (Dead) Through L.Rs. vs Gangadhar (2006) 142 PLR 749 it was held as under:
"9.........The plaintiff, as per his own statement recorded in the year 1997, came in possession of the suit land 8/9 years back. This means the plaintiff came in possession of the suit land somewhere in the year 1989. There is no agreement on the file showing that the plaintiff came in possession of the suit land as a tenant. There is no receipt about the payment of rent by the plaintiff to the defendant. The entry of Jamabandi in which the plaintiff has been recorded in possession of the suit land at tenantatWill in the Column of cultivation is not sufficient to show has tenancy over this land. The law is well settled that when a person is in unauthorised occupation of some land, he is generally recorded as tenant at will i.e. gair marusi. The entry in column of cultivation has to be read with the column of rent so as to determine the status of a person in possession of the land. When the column of rent in Jamabandi Ex.P6 relating to the 198384 is blank, the plaintiff cannot claim himself to be in possession of the suit land as a tenant simply on the basis of entry of column of cultivation or the correction of Khasra girdawari of the suit land in his favour by the revenue authority. Learned trial Court did not consider the legal consequences of the entries in the revenue record and simply relied upon the entry of gair marusi in the column of cultivation to come to a conclusion that the plaintiff was a tenant over the suit land. The entry of the column of cultivation is of no help to show the tenancy of the plaintiff over the suit land when the column of rent in Jamabandi is blank and no agreement on receipt of payment of rent have been brought on record by the plaintiff to show his tenancy over the land."
9.13 In Gram Panchayat Dadam vs Des Raj (Deceased) Through His LRs and ors RSA No. 741/1990 dated 19.12.2013 it was held as under: "In case Rulhu Ram vs. Than Singh and others reported as 1966 P.L.J. 260 it was observed by this Court as under:
"..... It is well known that the revenue authorities when they find a person in possession of the land without any right normally record him as a tenant irrespective of the fact whether he is a tenant or not. Non payment of rent negatives existence of relationship of landlord and tenant. This was so held in Kanwar A. Ahmed Khan v. The Union of India (1954 P.L.R. 468)." Payment of rent is a necessary ingredient to determine the relationship of landlord and tenant. In this case, the column of payment of rent has been left blank, in jamabandies for the years 197071 (Ex.P10), 197576 (Ex.P11), 198081 (Ex.P13), pertaining to suit land. This reflects that the plaintiff was not paying any rent. Payment of rent is necessary to create relationship between the landlord and tenant and this fact has been authoritatively held by Hon'ble Supreme Court in case of Natha Singh and others vs. The Financial Commissioner, Taxation, Punjab and others, 1976 PLJ 293.
There is a catena of decisions of this Court in which the same view has been taken. Some of those are Rulhu Ram vs. Than Singh and others (1966 PLJ 260), Ram Karan vs. The Financial Commissioner and others (1980 P.L.J.
295), Jagjit Singh vs. Financial Commissioner, Haryana and others (1981 PLJ 367) and Jasmer Singh Bhatti vs. State of Punjab (1989 PLJ 288). In the absence of any evidence that the respondent/plaintiff had been paying rent to the Gram Panchayat Dadam or his tenancy was renewed from time to time, the First Appellate Court has committed grave error of law and fact while recording finding that the plaintiff is in possession of the suit land as tenant. There was no evidence to corroborate the plea taken by the plaintiff and the entries in the jamabandi recording his possession as 'gair marusi'.
The Hon'ble Supreme Court in the case of Jagpal Singh and others vs. State of Punjab and others AIR 2011 (SC) 1123 has issued directions to the State Governments in the country to remove all unauthorized occupants over the land of Gram Panchayat. The directions given in para of the judgment are as follows : "22. Before parting with this case we give directions to all the State Governments in the country that they should prepare schemes for eviction of illegal/unauthorized occupants of Gram Sabha/Gram Panchayat/Poramboke/Shamlat land and these must be restored to the Gram Sabha/Gram Panchayat for the common use of villagers of the village. For this purpose the Chief Secretaries of all State Governments/Union Territories in India are directed to do the needful, taking the help of other senior officers of the Governments. The said scheme should provide for the speedy eviction of such illegal occupant, after giving him a show cause notice and a brief hearing. Long duration of such illegal occupation or huge expenditure in making constructions thereon or political connections must not be treated as a justification for condoning this illegal act or for regularizing the illegal possession. Regularization should only be permitted in exceptional cases e.g. where lease has been granted under some Government notification to landless labourers or members of Scheduled Castes/Scheduled Tribes, or where there is already a school, dispensary or other public utility on the land.
........The respondent/plaintiff has enjoyed the possession and usufruct of the suit land for the last more than 26 years without payment of any rent or share of produce despite the fact that he is in unauthorized possession of the same."
9.14 In Man Singh vs S.S. Khanna & Ors RSA No.332 of 2014 (O&M) dated 30.05.2017 it was held as under:
13...........The plea of the plaintiff that the plaintiff is in possession and, thus entitled to the grant of injunction restraining the defendants from interfering in his possession is not sustainable. The plaintiff in the column of possession, though have been shown in possession but the entries showing the suit land as Gair Mumkin Sadak, Gair Mumkin Khadan and Banjar Kadim indicates that it was never in possession of the plaintiff. In view of the entries in the revenue record showing the land to be Gair Mumkin Sadak, Gair Mumkin Khadan and Banjar Kadim, the plaintiff cannot be held to be in possession and thus not entitled to the injunction prayed for.
Reference in this regard can be made to the case law cited as Faridabad Complex Administration vs Amitabh Adhar and others 1999(1) PLJ 83 and Dev Raj versus Tej Bhan and another 1999(1) PLJ 156 (FC Haryana).
14. The suit property is the State Government Property as is evident from the revenue record. In Mohan Lal vs Mohan Singh 1996(1) CCC 30 (P&H) our own Hon'ble High Court has observed that Government holds property as a trustee of the people and in cases involving public properties and public interests, 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 property belonging to the Government 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 no 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 case, the 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 unauthorized encroachment of the public property. Reference in this regard can also be made to the case law cited as Dungar Dass and others vs Municipal Council, Rewari and others 2008(4) CCC 797 (P&H).
Similarly, the findings recorded by the lower Appellate Court are reproduced as under : "16. The suit property has been shown in possession of State Government and Mehkama PWD in the Jamabandis Ex.D2 to Ex.D4 for the year 1972 73, 197778 and 198283. The name of the plaintiff in the column of cultivation as tenant of Will (Gair Marusi) entered first time in the jamabandi in the year 198788, Ex.D5 and khasra Girdawari for the year 198788 but nothing has been brought on record to show how the plaintiff appellant came into possession of the suit property as tenant. No rapat roznamcha vide which the plaintiff has became tenant in the suit property placed on record. Nothing has been mentioned in the column of rent and the said column is blank. Therefore, it cannot be assumed or presumed that the plaintiff is a tenant in the suit land..........
Similar issue was there before the Hon'ble Apex Court in case Jagpal Singh and others vs State of Punjab and others 2011(1) RCR (Civil) 912. In that case also, the suit property was community land. Attempt was made by some unscrupulous elements to grab common land in villages. It was observed in para No.5 of the said judgment as under: "5. What we have witnessed since Independence, however, is that in large parts of the country this common village land has been grabbed by unscrupulous persons using muscle power, money power or political clout, and in many States now there is not an inch of such land left for the common use of the people of the village, though it may exist on paper. People with power and pelf operating in villages all over India systematically encroached upon communal lands and put them to uses totally inconsistent with its original character, for personal aggrandizement at the cost of the village community. This was done with active connivance of the State authorities and local powerful vested interests and goondas. This appeal is a glaring example of this lamentable state of affairs."
The Hon'ble Apex Court had observed that the trespasser who illegally encroached upon the Gram Panchayat land by using muscle power, money power and in collusion with State officials and even Gram Panchayat, are not entitled to any relief and the Courts have not to condone, such type of blatant illegalities."
9.15 There is no change, since order dated 25.10.2010, as far as plaintiff's stand, contentions as to how he came to occupy the suit property in the year 1991. Though plaintiff's possession in the khasra girdawris is recorded for the first time in the year 1991 however it has not been explained by the plaintiff as to how he came to occupy, got the possession of the suit property. The plaint, pleadings are absolutely silent regarding the manner, circumstances in which the plaintiff came to occupy, possess the suit property. Hence once the plaintiff has failed to explain as to how he came to occupy, possess the suit property the only natural inference that can be drawn is that the suit property was occupied, taken possession of unlawfully, against the will and without the consent of true owner i.e. the Central government, Government of NCT of Delhi. In fact he is a trespasser in the suit property and has no other right whatsoever. Having obtained the possession unlawfully the plaintiff cannot seek the relief of injunction either against the true owner i.e. the Central government, the government of NCT of Delhi or for that matter against defendant no.1 to 4 as injunction if any granted against either of the defendants can/would be exploited, misused to defeat the rights of rightful owner. Furthermore injunction against defendant no. 1 to 4, if granted, would create law and order situation as it is the case of the plaintiff that defendant no. 1 to 4 are disturbing his possession, encroaching upon the same. Already FIRs have been registered against both the parties at the behest of other which is sufficient proof of their animosity. Grant of injunction would add fuel to the fire, lead to further controversy and dispute amongst them for settling of which the police, government machinery would definitely get involved. Why should the courts let that situation arise once the very genesis of the dispute that is the possession is illegal, unlawful? This is not the job of courts or the local authorities as it would indirectly amount to perpetuating a wrong.
9.16 It is a settled law that a person, who seeks equity, must do equity. The Hon'ble Apex Court in Canara Bank and Ors. v. Debasis Das and Ors AIR 2003 SCW 1561 held as :
"A person who seeks equity must come with clean hands. He, who comes to the Court with false claims, cannot plead equity nor the Court would be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner."
9.17 The Court denies the relief to a suitor who is himself guilty of misconduct in respect of the matter in controversy. It is wellknown maxim of equity that "He who comes into equity must come with clean hands," or as otherwise expressed, "He that hath committed inequity shall not have equity".
9.18 In M/s Seemax Construction (P) Ltd. v. State Bank of India AIR 1992 Delhi 197 the Hon'ble Delhi High Court observed as under:
"The suppression of material fact by itself is a sufficient ground to decline the discretionary relief of injunction. A party seeking discretionary relief has to approach the Court with clean hands and is required to disclose all material facts which may, one way or the other, affect the decision. A person deliberately concealing material facts from Court is not entitled to any discretionary relief."
9.19 In Charanjit Thukral v. Deepak Thukral C.S. (OS) No. 967/2010 dated 29.07.2010 decided by the Hon'ble High Court of Delhi it was held:
"........It is settled principle of law that a person who approaches the Court for grant of relief, equitable or otherwise, is under a solemn obligation to candidly disclose all the material/important facts which has bearing on the adjudication of the issues raised in the case. It is the duty of the party asking for an injunction to bring to the notice of the Court all facts material to the determination of his right to have injunction and it is not an excuse for him to say that he was not aware of the importance of any facts which he has omitted to bring forward. Where Plaintiff does not act bonafidely and does not put every material facts before the Court, the Court is within its inherent power to refuse to grant him injunction, even though there might be facts upon which injunction might be granted. Conduct of the Plaintiff is very material in bringing the case and disclosing the facts before the Court. Plaintiff is required to make fullest possible disclosure of all material facts within his knowledge to the Court and if he does not make that fullest possible disclosure, he cannot obtain any advantage from the proceedings and is liable to be deprived of any advantage he might have already obtained by means of the order which has thus wrongly been obtained by him by concealment of material facts........"
9.20 The Hon'ble Delhi High Court in Kimti Lal Rahi v. Union of India AIR 1993 Delhi 211 has held that:
"16. It is well settled that one who claims equity must do equity. Estoppel springs from equity doctrine. If the application at the principal leads to results which are unjust and opposed to fair play and justice the doctrine will have no application in a given case."
9.21 In the case of Champa Arora & Ors. vs. Shiv Lal Arora & Ors. 2001 VII AD (Delhi) 602 Hon'ble High Court of Delhi held as under:
"It is a settled law that a person, who seeks equity, must come with clean hands. A litigant who suppresses a fact from the court, indeed looses the right to seek an equitable relief of ad interim injunction".
9.22 It has been held in Executive Committee of Vaish Degree College, Shamli v. Lakshmi Narain AIR 1976 SUPREME COURT 888 that the relief of injunction is purely discretionary and the plaintiff cannot claim it as a right. The relief has to be granted by the Court according to sound legal principles and ex debito justice. The Court has to administer justice between the parties and cannot convert itself into an instrument of injustice or an engine of oppression. While exercising its discretionary powers the Court must keep in mind the well settled principles of justice and fair play and should exercise the discretion only if the ends of justice require it, for justice is not an object which can be administered in vacuum. Clearly, if a party suppresses material facts from the court then the relief of injunction cannot be granted to that party.
9.23 The power which the court possesses of granting injunctions whether interlocutory or perpetual (however salutary) should be very cautiously exercised and only upon clear and satisfactory grounds, otherwise it may work the greatest injury. Injunctions are a form of equitable relief and have to be adjusted in aid of equity and justice to the facts of each particular case. An injunction is not and cannot be granted as a matter of course. At this juncture, it will be relevant to refer to the observation made by Hon'ble High Court of Kerala in the matter reported in AIR 1989 Ker. 188 wherein it has been observed that :
" It has to be remembered that a suit for injunction is an equitable remedy & the primary requirement for grant of an equitable remedy is that the person who claims the remedy must come before the Court with clean hands. He must show equity & must show his entitlement under the equity the relief he has sought. Fairness and good faith are two important things required for obtaining any equitable relief. If plaintiff in his conduct against defendant, has acted in an unfair or in equitable manner, he would not be entitled to injunction".
9.24 AIR 1989 Kerala 308
In Leela v. Ambujakshy the Hon'ble Kerala
High Court observed as under:
"Further injunction is an extraordinary discretionary relief. A person approaching the Court for such a relief must come with clean hands and he must do equity. He who seeks equity must do equity"
9.25 In S.P.Chengalvaraya Naidu (Dead) by LRs Vs. Jaganath (Dead) LRs and ors. AIR 1984 SC 853 Hon'ble Supreme Court observed:
"The Courts of Law are meant for imparting justice between the parties. One who comes to the court , must come with clean hands. We are constrained to say that more often then not, process of the court is being abused..........We have no hesitation that a person whose case is based on falsehood has no right to approach the court. He can be summarily thrown out at any stage of litigation."
9.26 In C.B. Aggarwal Vs. P. Krishna Kapoor AIR 1995 Delhi 154 Hon'ble High Court observed as under:
"It is true that in a civilised society, legal process is the machinery for keeping order and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for vindication for men's right and enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression or to exert pressure so as to achieve an improper end."
9.27 It will be pertinent to highlight the observations made by Hon'ble High Court of Delhi in Sh. Jagdish Prasad And Sh. Mohan vs Delhi Development Authority dated 13.03.2007 wherein it was held as under:
9. In Rajinder Kakkar and Ors. v. Delhi Development Authority 1994 1 AD (Delhi) 432, it was held:
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 unauthorized 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 unauthorized construction specially, when such construction, like the present, is commercial in nature.
.... 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.
10. In Premji Ratnasey Shah and Ors. v. Union of India and Ors. JT 1994 (6) S.C. 585, it was held:
5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the Courts below have rightly rejected the relief of declaration and injunction in favor of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favor of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identify of the land should not be an excuse of claim injunction against true owner.
11. In Mahadeo Savlaram Shelke and Ors. v. The Puna Municipal Corporation and Anr. , it was held that it is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession. See also Tejpal Shastri and Ors. v. Union of India and Ors. 1977 (IV) Delhi 460.
9.28 It is well settled law that there cannot be any injunction against the rightful owner. In the case at hand the plaintiff is a trespasser and an encroacher upon government land/suit property. The government its instrumentality are the owner of the suit property. This was precisely the reason why on the very first day, when the suit was instituted, the Government of NCT of Delhi was impleaded as defendant no. 6 by the Hon'ble High Court of Delhi vide orders dated 01.09.2008. Therefore the suit property being a government land the plaintiff being an encroacher/trespasser he cannot claim any injunction against the government or its instrumentalities. Reliance may be placed on the law laid down in State of Jammu & Kashmir Vs. Ghulam Rasool AIR 1979 J&K 53 and Dalpat Kumar Vs. Prahlad Singh AIR 1993 SC 276.
9.29 Even if the plaintiff is in possession, his possession is wholly unlawful being trespasser and as such, injunction could not be issued in favour of a trespasser or a person who gained unlawful possession as against the true owner. Reliance may be placed upon the law laid down in Premji Ratansey Shah and others v. Union of India and others (1994) 5 SCC 547, Sopan Sukhdeo Sable and others v. Assistant Charity Commissioner and others (2004) 3 SCC 137, Prataprai N. Kothari v. John Braganza (1999) 4 SCC 403, Mahadeo Savlaram Shelke and others v. Pune Municipal corporation and another (1995) 3 SCC 33 , Tamil Nadu Housing Board v. A.Viswam (Dead) by LRs. (1996) 8 SCC 259, Shiv Kumar Chadha v. Municipal Corporation of Delhi (1993) 3SCC 161.
9.30 In Dalpat Kumar v. Prahalad Singh AIR 1993 SC 276 the Hon'ble Supreme Court held as under:
"9. It is settled law that no injunction could be granted against the true owner at the instance of persons in unlawful possession.............Their possession in unlawful and that therefore, they cannot seek any injunction against the rightful owner for evicting them. ........"
9.31 The law is well settled that where an encroacher, illegal occupant or land grabber of public, government property seeks an injunction on the basis of long possession, the Court is duty bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give upper hand to the encroachers, unauthorized occupants or land grabbers. At this stage it will be pertinent to highlight the observations made by the Hon'ble High Court of Delhi in Okhla Factory Owners's Association (Regd.)& Anr. vs. The Govt. of National Capital Territory of Delhi & Ors. 108(2003) DLT 517 (DB), wherein the Hon'ble High Court relied upon the observations made by the Hon'ble Apex court in Ahmedabad Municipal Corporation vs. Nawab Khan Gulab Khan (1997) 11 SCC 121 wherein it was observed as under:
"No one has a right to make use of public property for private purpose and that it is the duty of the competent authorities to remove encroachments which are a constant source of unhygienic conditions, ecological problems, traffic hazard and a risk even to pedestrians."
9.32 Ld. Counsel for the plaintiff vehemently relied upon Rame Gowda (dead) by LRs Vs. Varadappa Naidu (Dead) by LRs & Anr (2004) 1 SCC 769 and Ram Daan Vs. Urban Improvement Trust (2014) 4 SCC 669 while arguing that plaintiff has been in peaceful, settled possession of the suit property and is thus entitled to protect the same. However I find no merits in the contentions of Ld. counsel for the plaintiff. At the outset, as discussed above, the possession was unlawfully obtained by the plaintiff. It is not a case where the plaintiff came into the possession of the suit property pursuant to some agreement or lawful understanding between him and the owner i.e. Central Government or for that matter the Government of NCT of Delhi. It is not his case that he is a tenant, paying rent or that he was inducted as a licensee. He in my considered opinion and as discussed above is rank trespasser who by abusing, misusing the process of law has now continued to occupy, possess the suit property for almost three decades. Government property, situated in South Delhi, having prime location and worth several crores has been occupied and exploited for private use by the plaintiff. A bare glance at the photographs filed by the plaintiff and defendant no. 1 to 4 would reveal that DDA has affixed its board in the suit property. Once DDA has affixed its board in/at the suit property with a warning that the trespassers will be prosecuted then the possession of the plaintiff cannot be said to be "settled" or "peaceful". Furthermore the Khasra girdawris, which record the ownership of the Central Government for all the years since 1986, do not record the possession, occupation of the plaintiff since 1986 till 1990. The entry for the year 1994 to 1998 record the possession of the owner i.e. the Central Government and not that of the plaintiff, though subsequently name of the plaintiff was added. Hence the possession cannot be held to be "settled" or "peaceful" extending over a sufficiently a long period of time and acquiesced to by the true owner or one which requires to be protected by the court. It is a disputed possession and the title vests with the Central Government. Furthermore in Ram Daan's case (supra) there was dispute as to who is the real owner of the property which is not so in the present case. In the case hand Central Government's ownership stands admitted.
9.33 At this stage it will be worthwhile to highlight the observations made in Mohinder Singh Vs. Pala Singh and ors RSA 3945/2009 decided on 02.12.2009 wherein it was held as under:
"It is claimed that he is owner in possession of the land since the time of his forefathers. But he has not placed on file and record for the period prior to 1991. Moreover, these jamabandis show him 'Gair Marusi', means tenant at will. But there is no mention of any rent etc. Tenancy can only be created between two parties. But he failed to place on file any agreement between him and Gram Panchayat as admittedly land is situated in 'Abadi' and vests in Gram Panchayat. Moreover, it is not case of plaintiff that he had obtained his land on lease from Gram Panchayat. In such a situation, it has to be held that these entries are without any consideration and basis. So he cannot be granted any injunction that too against true owner i.e. Gram Panchayat".
Insofar the decision in the case of Rame Gowda's case (Supra) is concerned, the same has been thoroughly discussed by this Court in the case of Sukhwant Singh Vs. Divisional Forest Officer and another (RSA No.3800 of 2004 decided on 2.4.2009) in which it has been held as under:
"In Rame Gowda (D) LRs's case (supra), the plaintiff filed a suit alleging his title as also his possession over the disputed piece of land. The trial Court found the plaintiff as having failed in proving his title. Nevertheless he was found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The trial Court, therefore, left the question of title open and proceeded to determine the suit on the basis of possession protecting the established possession and restraining the attempted interference therewith. On the appeal of the defendant, the Hon'ble Supreme Court held that the trial Court and the High Court have rightly decided the suit as it was still open to the defendantappellant to file a suit based on his title against the plaintiff and evict the latter and the former establishing his better right to possess the property".
Thus, in Rame Gowda (D) LRs's case (supra), the title of the parties was in dispute and the Hon'ble Apex Court reiterated its earlier view observing as under:
"In Fakirbhai Bhagwandas v. Maganlal Haribhai AIR 1951 Bombay 380, a Division Bench spoke through Bhagwati, J.(as his Lordship then was) and held that it is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and that his possession was invaded or threatened to be invaded by a person who has no title thereof. We respectfully agree with the view so taken. The High Court has kept the question of title open. Each of the two contending parties would be at liberty to plead all relevant facts directed towards establishing their titles, as respectively claimed, and proving the same in duly constituted legal proceedings. By way of abundant caution, we clarify that the impugned judgment shall not be taken to have decided the question of title to the suit property for or against any of the contending parties.
From the above discussion , it is also clear that there is no conflict with regard to ratio of law as settled in Rame Gowda(D) LRs's case(supra) and the other judgments supporting the view taken in aforesaid case and the view taken in Premji Ratansey Shah and others's case (supra) and other judgments supporting the same view.
In the cases in hand, there is no dispute with regard to the title of the defendants in the suit property. Therefore, in view of the above discussion only one conclusion can be drawn that an injunction cannot be granted in favour of the plaintiffs who are trespassers and against the defendants who are the true owners of the suit land".
Since in the present case, the finding of fact has been recorded by the Courts below that true owner of the land in question is the Gram Panchayat as the jamabandi shows the appellant/plaintiff to be 'gair marusi' (tenant at will). Therefore, the aforesaid judgment in the case of Rame Gowda's case (Supra) is of no help to the plaintiff/appellant.
9.34 In the case at hand ownership of defendant no. 6 i.e. the Central government stands admitted. Therefore no reliance can be place upon the Rame Gowda's case (supra) to seek the relief of injunction.
9.35 Though Ld. counsel for the plaintiff relied upon Surender Singh Vs. Gokal Chand and ors RSA No. 3631 of 2012 (O&M) dated 15.11.2017 to argue that the plaintiff is entitled to the relief of injunction however in view of the above discussion and case laws, the said ruling does not help the case of the plaintiff. Furthermore in Sat Pal Vs. State of Haryana and anr RSA No. 3564 of 2017 (O&M) decided on 11.07.2017 relief of injunction was declined to the plaintiff, in that matter, and it was held as under:
"In brief, the facts are that the plaintiff filed suit for permanent injunction claiming that he is in cultivating possession of the land measuring 6 kanals 17 marlas detailed in the headnote of the plaint situated in Village Ibrahimpur, Tehsil Chhachhrauli, District Yamunanagar. It was claimed that the plaintiff is in actual, physical and cultivating possession 1 of 3 over the suit land for the last more than 40 years as tenant gair marusi without any payment of the rent or batai. The plaintiff further claimed that he had planted trees which are standing on the suit land. It was further pleaded that the defendants were threatening to dispossess the plaintiff and to cut and remove the trees and hence he has apprehension. With these pleadings, plaintiff filed the present suit. The learned trial Court decreed the suit filed by the plaintiff vide judgment dated 23.01.2013.
The State of Haryana filed an appeal which has been accepted by the learned District Judge vide judgment dated 05.04.2016. The learned First Appellate Court has recorded that in the revenue record, the State of Haryana is recorded as owner. The learned First Appellate Court further recorded that it is the case of the appellant that he is in possession of the suit land as tenant gair marusi without payment of any rent or batai and since plaintiff claims to be in unauthorized possession, therefore, no injunction can be granted against the true owner of the land.
I have heard learned counsel for the appellant and have carefully perused the judgment of both the Courts which are part of the paper book.
The learned First Appellate Court has examined the evidence available on the file. It is not in dispute that State Government is owner of the land. The appellant claims to be in possession of the property. However, appellant has failed to prove any right in the land. The appellant has failed to prove that there exists any tenancy between State and him. The appellant has further failed to prove that there was any contract which is sine qua non for creation of the tenancy.
The appellant only claims that he is in possession without payment of any rent to anyone. The only conclusion which is possible is that the appellant claims that he is in unauthorized possession. The person who is in unauthorized possession cannot claim protection of law. It is admitted fact that land is under plantation of Eucalyptus trees. It is the case of the respondent State that Forest Department had planted the trees over the suit land and it is part of protected forest vide notification dated 05.06.1956 issued by the Punjab Government and Notification dated 13.09.1974 issued by the Haryana Government subsequently in continuation of earlier notification. The Notification dated 13.09.1974 is Ex.D1 on the file. Once the land in question is part of protected forest, in my opinion appellant cannot be granted injunction.
9.36 As far as his prayer that he may not be evicted otherwise then with due process of law is concerned it will be pertinent to go through the observations made by the Hon'ble Apex Court in Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira reported as (2012) 5 SCC 370 wherein it has been held:
".........Due process of law
79. Due process of law means that 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 to 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 upon by a competent court.
80. The High Court of Delhi in Thomas Cook (India) Ltd. v. Hotel Imperial [(2006) 88 DRJ 545] held as under: (DRJ p. 566, para 28) "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 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, 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 .
We approve the findings of the High Court of Delhi on this issue in the aforesaid case.......". [(2012) 5 SCC 370 ]."
9.37 It is thus absolutely clear that the expression due process of law only refers to adjudication of the rights of the parties by a Court, irrespective of the fact as to how the action is commenced i.e. irrespective of the fact as to whether the action is commenced by the owner for recovery of possession or by the occupier for an injunction against dispossession.
9.38 It was also held in Maria Margarida Sequeira Fernandes (supra) as under:
"67. In an action for recovery of possession of immovable property, or for protecting possession thereof, upon the legal title to the property being established, the possession or occupation of the property by a person other than the holder of the legal title will be presumed to have been under and in subordination to the legal title, and it will be for the person resisting a claim for recovery of possession or claiming a right to continue in possession, to establish that he has such a right. To put it differently, wherever pleadings and documents establish title to a particular property and possession is in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.
68. In order to do justice, it is necessary to direct the parties to give all details of pleadings with particulars. Once the title is prima facie established, it is for the person who is resisting the titleholder's claim to possession to plead with sufficient particularity on the basis of his claim to remain in possession and place before the court all such documents as in the ordinary course of human affairs are expected to be there. Only if the pleadings are sufficient, would an issue be struck and the matter sent to trial, where the onus will be on him to prove the averred facts and documents......."
"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:
(a) who is or are the owner or owners of the property;
....
(h) If taken on rent, licence fee or lease--then insist on rent deed, licence deed or lease deed;
....
(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............
75. 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 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........" [(2012) 5 SCC 370 ]
9.39 Thus the plaintiff being an illegal occupant, having no right, title or interest in the suit property, does not even have a right to continue in possession of the suit property. Equity can never tilt in his favour. As discussed above one of the cardinal principles for grant of injunction is that he who seeks equity must do equity. The plaintiff has enjoyed the possession of the suit property for quite long now without having any authority to do so and now no injunction can be granted to protect or perpetuate that wrong committed by the plaintiff Reference may be made to the judgment titled as Shiv Kumar Chadha v. Municipal Corporation of Delhi reported as (1993) 3 SCC 161 wherein it was observed that injunction is discretionary and that:
"Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court."
9.40 Before parting with the present judgment, I am constrained to observe that I am appalled with the conduct of the government, concerned authorities. Public land worth several crores and which could have been used or utilized for various public purposes, benefits has been left to be exploited by one individual. For 27 long years one individual, who is a trespasser, encroacher on the government land, having no right, title or interest to occupy the said land i.e. suit property, has kept the courts occupied and the government authorities pushed against the wall. The resources of the court which includes precious judicial time are scarce and already badly stretched. Valuable court time which is required to be engaged in adjudication of serious judicial action, is expended on frivolous and vexatious litigation which is misconceived and is an abuse of the process of law. There cannot be more mockery or abuse of the process of law. All this could not have been without collusion, connivance of the local authorities i.e. revenue officials, office of the District Collector & the SDM concerned as well as the local police. In fact the SHO did not bother to file any written statement or status report which itself is a proof of his malafide and collusion. It is because of such officials, as above, that lands sharks grab, public, government land and exploit it for personal gains, benefits. It is high time that the concerned government, local authorities wake up from their slumber and save government/public land worth several crores of rupees from being usurped.
9.41 With the above observations, issue no.1 is decided against the plaintiff and the suit is liable to be dismissed. I order accordingly.
9.42 Decree sheet be prepared accordingly.
