Judgment:
* IN THE HIGH COURT OF DELHI AT NEW DELHI + % KRISHAN LAL RFA No.661/2017 8th August, 2017 ..... Appellant Mr. Ritesh Khatri, Advocate. Through: versus UNION OF INDIA & ANR. CORAM: HON’BLE MR. JUSTICE VALMIKI J.MEHTA .....
... RESPONDENTSTo be referred to the Reporter or not?. VALMIKI J.
MEHTA, J (ORAL) C.M. Nos. 28321/2017 (for filing documents), 28322/2017 (for early hearing) & 28323/2017 (for exemption) 1. The applications for exemption, early hearing and taking on record the documents which form part of the trial court record are allowed. C.M.s stand disposed of. RFA No.661/2017 2. This Regular First Appeal under Section 96 of Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit RFA No.661/2017 Page 1 of 23 impugning the judgment of the Trial Court dated 17.7.2017 by which the trial court has dismissed the suit for injunction filed by the appellant/plaintiff whereby the appellant/plaintiff had sought an injunction against dispossession from 5 bighas and 2 biswas of land (5100 sq. yds.) forming part of Khasra no.1531, Village Aliganj, New Delhi and which adjoins Lajpat Nagar, New Delhi. The only basis of claim for injunction is the claim of the appellant/plaintiff to be in adverse possession of the suit land as against the respondents/defendants/Union of India/DDA. Admittedly the present owner of the property is said to be respondent no.2/DDA and which is the successor of the original owner being the respondent no.1/Union of India.
3. The facts and averments with respect to claim of the appellant/plaintiff to entitlement of the suit land and injunction against the dispossession on the basis of adverse possession is reflected in para 5 of the impugned judgment dated 17.7.2017. The case of adverse possession as pleaded by the appellant/plaintiff is as per paras 4 and 10(e) of the plaint filed by the appellant/plaintiff in the trial court with other related paras. RFA No.661/2017 Page 2 of 23 4. The appellant/plaintiff filed the subject suit seeking injunction against being dispossessed from the suit land being 5 bighas and 2 biswas of land (5100 sq. yds.) forming part of Khasra no.1531, Village Aliganj, New Delhi and the relief clause of the plaint reads as under:-
"PRAYER “ It is therefore, respectfully prayed that in view of the submissions made above, this Hon’ble Court may be pleased to pass a decree of perpetual injunction in favour of the plaintiff and against the defendants thereby restraining the defendants, their employees, agents and representatives etc. from dispossessing the plaintiff or interfering into the peaceful possession of the suit property comprising of 5 bighas 2 biswas forming part of khasra no.1531 of the revenue estate of village Aliganj, New Delhi, shown in Red Colour in Zonal Plan No.D-19, Annexure A & B. Any other relief which the plaintiff may be found to be entitled be also granted. It is prayed accordingly.” 5. As per the plaint filed by the appellant/plaintiff (and which starts from page 82 of the paper book of this appeal) it is seen that the appellant/plaintiff pleads that he was displaced from West Pakistan and he settled in the year 1954 over the suit land which is adjoining to Lajpat Nagar-II, New Delhi. It is further pleaded in the plaint that the appellant/plaintiff initially did the poultry business in the suit land and thereafter started a full fledged nursery on the suit land in the name of M/s Pal Nursery. In para 4 of the plaint, the appellant/plaintiff pleads to be the owner of the land as well as of the RFA No.661/2017 Page 3 of 23 built up portion, on account of adverse possession. It is further pleaded that built up portion is assessed to house tax since the year 1976. The built up portion is said to be a residential house as also a servant quarter. The plaint further pleads that the subject land has been transferred by the Union of India to the defendant and which is the defendant is though not specified in the plaint, it means DDA. The plaint further pleads that there was an attempt to illegally dispossess the appellant/plaintiff from the suit land by physical force and demolition being carried out of the built up portion and which cannot be done by the respondents/defendants being the Union of India and the DDA. The appellant/plaintiff claimed as per para 10(c) of the plaint that the appellant/plaintiff is in uninterrupted continuous possession for more than 53 years. It has been further pleaded that the room and the servant quarters were illegally demolished by the respondent no.2/DDA on 3.8.2004. The appellant/plaintiff contested the ownership of the suit land of the DDA and originally of the Union of India. As per para 9 of the plaint the appellant/plaintiff seeks declaration of being owner of the suit property although as per the RFA No.661/2017 Page 4 of 23 relief clause reproduced above no relief of declaration has been claimed for the appellant/plaintiff to be the owner of the suit property.
6. The respondent no.2/defendant no.3/DDA contested the suit and it was pleaded that the appellant/plaintiff is a mere trespasser/encroacher on government land and that the appellant/plaintiff is not entitled to any injunction. It was denied by the respondent no.2/defendant no.3 that the appellant/plaintiff has become owner by adverse possession. It was pleaded as per the written statement of the respondent no.2/DDA that the land in question was transferred from the Ministry of Rehabilitation to the respondent no.2/DDA under a package deal vide letter dated 2.9.1982 and formal possession was taken over by the respondent no.2/DDA at site no.19, Lajpat Nagar, New Delhi on 26.12.1983. It was pleaded that any construction made by the appellant/plaintiff on the suit land is unauthorized and illegal as it is without any sanction plan. I may note that respondent no.1/Union of India was proceeded ex-parte in the trial court and the suit was only contested by the respondent no.2 herein i.e DDA. RFA No.661/2017 Page 5 of 23 7. The only issue which was framed in the suit was whether the appellant/plaintiff was entitled to the relief of permanent injunction as prayed for. The documentary evidence which is led by the appellant/plaintiff is referred to in paras 29, 31, 32 and 33 of the impugned judgment and which paras read as under:-
"In order to prove his case plaintiff examined Sh. Rajinder Prashad, “29. Tax Assistant from Income Tax Department as PW-1 who proved the original returns for the assessment year 2005-2006, 2008-2009 and 2004- 2005 and the copies of the same are exhibited as Ex. PW-
to Ex. PW-
( OSR). He further deposed that the previous record of the income tax returns of the plaintiff are not there in their office as all of them have been weeded out. xxxxx xxxxx xxxxx 31. PW-2 Sh. Satya Prakash, AMR, Delhi Jal Board appeared and deposed that he has not brought the record pertaining to connection No.12274 which is installed in the premises of Paul Nursery, Lajpat Nagar II, New Delhi and is commercial one because the record pertaining to this connection and many other connections is missing. The Zonal Revenue Officer ( S2) Delhi Jal Board, Govt. of NCT of Delhi has issued a certificate in this respect and proved the same as Ex. PW-2/1. In the cross-examination he deposed that they had not lodged any FIR with regard to the missing of the record.
32. PW-3 Sh. S.K. Gupta, Head Clerk from House Tax Department and proved the letter No.TAX/CNZ/2011/3980 dated 28.11.2011 in respect of Tax deposited on self assessment basis under Unit Area method w.e.f 2004-2005 as Ex. PW-3/1.
33. Plaintiff examined himself as PW-4 and tender his evidence by way of affidavit Ex. PW-4/A and rely upon the documents Ex. PW-
to Ex. PW-1/58.” 8. The appellant/plaintiff examined a total of four witnesses including himself as PW-4. RFA No.661/2017 Page 6 of 23 9. The evidence led by the contesting defendant/DDA is of one witness Sh. D.N. Bhardwaj and who was the Junior Engineer of the Survey and Settlement Department of DDA.
10. The evidence led by the respondent no.2/DDA in the trial court is referred to in para 42 of the impugned judgment and which para 42 reads as under:-
"“42. Defendant No.3/DDA examined Sh. D.N. Bhardwaj, J.E, Survey & Settlement Department II, DDA, Vikas Sadan as D- 3/W1 who tendered his evidence by way of affidavit Ex. D-3W-1/A and proved the copy of page No.2 containing entry No.19 as Ex. DW-
and copy of Site Plan as Ex. DW-1/4, original letter dated 10.01.1984 as Ex. DW-1/2, original Jamabandi with respect ot Khasra No.1531 containing 15 bighas and 17 biswas is Ex. DW- 1/5. The photocopy of document mentioned in affidavit as Ex. DW-
is marked as Mark D-1.” 11. With respect to the depositions of the appellant/plaintiff’s witnesses as also the witnesses of the respondent no.2/DDA and their cross-examinations, trial court has adverted to the same in preliminary discussion as per paras 29 to 46 of the impugned judgment, and it will be seen that the discussion hereinafter, that nothing turns upon such cross-examinations because the issue in the present case is really with respect to the claim of the appellant/plaintiff to ownership of the suit land by adverse possession and which is essentially an aspect to be examined with respect to documentary evidence led in the suit. RFA No.661/2017 Page 7 of 23 12. With respect to issue no.1 of entitlement of the appellant/plaintiff to injunction as prayed, trial court has in the impugned judgment examined the same in terms of findings given in paras 55 to 61 of the impugned judgment and these paras read as under:-
"Finding on issue No.1 “55. In the light of above principles of perpetual injunction let us scrutinize the testimony of plaintiff witnesses because the onus of this issue is on the plaintiff. The testimony of four witnesses examined by the plaintiff discussed hereinabove in detail. The witness examined by the defendant also discussed hereinabove.
56. At the outset it is mentioned that initially plaintiff filed a suit for Declaration and perpetual injunction and withdrawn the relief of declaration of having become owner of the property by adverse possession was deleted from the plaint vide order dated 18th May, 1998 in IA No.60
in S.36
The plaintiff appeared in witness box as PW-4 and a detailed 57. affidavit running into around twenty pages filed mentioning even the orders of the High Court. He relied on the documents primarily House Tax receipts Ex. PW-1/3(Colly), News Paper cutting, Ex. PW-1/4, Receipt No.113353 dated 16.8.1979 of DESU , receipt of Delhi Jal Board as Ex. PW-1/6, Application of defendant No.2 as Ex. PW-1/7, Order dated 18.3.2005, reply to the application, letter dated 7.10.1982, 2.9.1982 as Ex. PW-1/11, Ration Card of plaintiff at suit property as Ex. PW-1/12, BSES electricity Bills of various years as Ex. PW-1/14, Driving License as Ex. PW-1/15, Report of LC dated 7.6.1993 as Ex. PW-1/16 & 17, Photographs taken by the said LC as Ex. PW-1/19, Income Tax return for various years as Ex. PW1/39 to Ex. PW-1/45, MTNL Dolphin phone connection Bills of various years as Ex. PW-1/46 (Colly), Legal Notice dated 22.1.2004 as Ex. PW-1/47, Postal receipts Ex. PW-1/48 & 49, Courier Receipts Ex. PW-1/50 & 51, Legal notice dated 22.1.2004 as Ex. PW-1/52, Postal receipt Ex. PW-1/53, Amended plaint as Ex. PW-1/54, Report of the Notary Public as Ex. PW- 1/55, Photographs as Ex. PW-1/55 TO58 It is admitted by the plaintiff in the chief examination itself that he has no jural relations with the suit land which remained in his possession for seven decades.
58. In the detailed cross-examination he deposed that one Sh. Maharaj Kishan , resident of Kilokri was owner of the occupied land which is the suit property. However, no oral or documentary evidence produced by him to RFA No.661/2017 Page 8 of 23 prove. He went to way back to the Emperor Akbar era by which the Gift Deed in favour of fore fathers of Maharaj Kishan was executed. He admitted that one Mehar Chand filed a suit against him seeking possession in Saket Court. However, no documents produced on record about any Gift Deed of Emperor Akbar or ownership document of Mehar Chand or Maharaj Kishan. On the other hand defendant's documents show that the land, including, suit land in dispute was transferred in the year 1984 by the Ministry of Rehabilitation to the DDA. He further admitted that he has occupied the suit property after migration from Pakistan.
59. The testimony of PW-4, plaintiff, established that after partition when he came from Pakistan he occupied this vacant piece of land, continued and thereafter started his business activities of poultry farming and Nursery etc. The authorities such like MTNL, Electricity Department, Delhi Jal Board etc blindly allowed the benefits to the plaintiff although he had never produced any ownership documents to any of the departments and authorities throughout the last seven decades.
60. The defendant DDA examined DW-1 Sh. D.N.Bhardwaj, J.E. The very vital document proved on record is Ex. DW
is the Jamabandi of Khasra No.1531 containing 15 bigha 17 biswas. The original document is also produced. According to this Jamabandi, the suit land in the year 1967- 68 stands in the name of Sarkar Daulat Madar Bhadur Delhi which established that khasra No.1531 belongs to government and it was a government land.
61. In the detailed cross-examination no question or suggestion put on this vital document Ex. DW-
which established on record that the plea of the plaintiff that the land has been occupied by him belonging to one Maharaj Krishan or Mehar Chand, forefather is without any basis or substances. On the other hand it is established on record that the Khasra No.1531 belongs to government as per Jamabandi Ex. DW-1/5. The suit land was transferred to DDA in package deal by the Ministry of Rehabilitation in the year 1984. As per documents proved on record the plaintiff is an unauthorised occupant/encroacher of the suit land for the last seven decades. Now applying the well settled principles laid down by the Apex Court, especially in the case of Ananthula Sudhakar (Supra) the plaintiff has no right, title or interest in the suit land. First he approached with a suit for declaration and when caught on the wrong footing, he had withdrawn the relief of declaration as owner of the suit land and restricted his claim to the perpetual injunction. When main relief has no substance then consequential relief thereof on perpetual injunction cannot be granted. Inherently, the relief of perpetual injunction embodied substantially and directly, relief of possession Therefore, the plaintiff is seeking possession of suit land being unauthorised occupant/encroacher which is not permissible as per law. In the present facts and circumstances of the case, the plaintiff who has no right, title and interest in the suit property being encroacher cannot seek the relief of perpetual injunction and cannot take benefits for his own wrongs. RFA No.661/2017 Page 9 of 23 On the basis of above, issue No.1 is decided in favour of respondents and against the plaintiff.” 13. A reference to the aforesaid paras shows that the trial court by its impugned judgment has referred to various documents proved by the appellant/plaintiff as also the jamabandi (i.e the revenue record) Ex.DW
proved by the DDA/contesting defendant with respect to Khasra no.1531 and which showed that in 1967-68, the suit land was shown to be in the ownership of Sarkar Daulat Madar Bhadur i.e the land was owned by the government.
14. The issue with respect to ownership by adverse possession on government land has to be established by means of adverse possession over a period of 30 years. The suit for injunction was filed by the appellant/plaintiff on 17.12.1992, and therefore, the appellant/plaintiff has to show his adverse possession from at least 17.12.1962.
15. Let us examine as to whether the appellant/plaintiff in terms of his evidence led has proved his ownership of the adverse possession of the suit land of 5100 sq. yds. comprised in Khasra no.1531 of village Aliganj, New Delhi and adjoining to Lajpat Nagar- RFA No.661/2017 Page 10 of 23 II, New Delhi and forming part of Zonal Development Plan no.19, Lajpat Nagar, New Delhi. Adverse possession has to be pleaded and proved by means of showing nec vi, nec clam, nec precario i.e open, hostile and continuous. Courts look at disfavor upon the plea of adverse possession, more so when it is claimed with respect to the government land, inasmuch as adverse possession commences in a wrong i.e wrongful possession and is maintained against a right i.e a correct title of the true owner. Courts therefore have demanded unimpeachable pleadings and evidence before ownership by adverse possession is held to be established by a litigant. 16.(i) I have asked the counsel for the appellant/plaintiff to show me which are the documents which the appellant/plaintiff relies upon to prove the adverse possession from December, 1962 and in response to which counsel for the appellant/plaintiff places reliance upon house tax receipts for the year 1979 at the earliest. There are subsequent years house tax receipts. (ii) Therefore since the only documentary evidence of the possession of the appellant/plaintiff of the suit land by means of reference to house tax receipts is from the year 1979 i.e around 17 RFA No.661/2017 Page 11 of 23 years after 1962, surely the house tax receipts cannot help the appellant/plaintiff to prove ownership by adverse possession of the suit land for a period 30 years before 1992. Also, it is seen that learned counsel for the appellant/plaintiff admits that house tax receipts were only with respect to a built up portion and not the entire land and that the house tax receipts do not even mention what is the area covered under the constructed portion with respect to which house tax receipts are issued. Therefore, the house tax receipts do not at all show that the appellant/plaintiff was in actual physical possession of 5 bighas and 2 biswas of land forming part of Khasra no.1531 of village Aliganj, New Delhi adjoining Lajpat Nagar-II, New Delhi and therefore in my opinion these documents will not help the appellant/plaintiff to prove the open, continuous and hostile possession of the suit land of an area of 5100 sq. yds. for a period of 30 years for the appellant/plaintiff to become owner by adverse possession of the suit land. 17.(i) Two other documents are relied upon by the appellant/plaintiff to argue before this Court the claim of entitlement RFA No.661/2017 Page 12 of 23 of adverse possession of the appellant/plaintiff. This is in terms of documents Ex.PW
and Ex.PW1/8. (ii) The document Ex.PW
is a seven lines letter written by the appellant/plaintiff to the Poultry Department Officer of the Delhi Cantt. and which is dated 27.12.1960. This letter only talks of the appellant/plaintiff writing to the officer of the Delhi Cantt. with respect to his being dislodged from his poultry house. This letter however does not contain that where is this poultry house located and that, whether this poultry house is located in Khasra no.1531 of village Aliganj, as to what is the area in occupation of the appellant/plaintiff i.e whether it is of 5100 sq. yds. etc. Therefore, such flimsy document as Ex.PW1/7, and that too being a letter written by the appellant/plaintiff himself dated 27.12.1960, cannot help the appellant/plaintiff to prove his title by adverse possession of the suit land of 5100 sq. yds. in Khasra No.1531. (iii) The next document which is relied upon being Ex.PW
dated 12.10.1962 is once again a six lines typed letter sent by the office of Poultry Development Officer, Delhi Administration, Delhi Cantt. to the wife of the appellant/plaintiff Smt. Sushil Rani referring to an RFA No.661/2017 Page 13 of 23 application for getting poultry on commercial basis. Once again this document Ex.PW
suffers from the same defects and disadvantages as exists with Ex.PW
and therefore in the opinion of this Court, Ex.PW
also cannot help the appellant/plaintiff to show his adverse possession of the suit land. Also in my opinion the documents Ex.PW
and Ex.PW
are one-off documents of the years 1960 and 1962 and this would not show continuous possession right from the year 1962 till the suit was filed in the year 1992.
18. Therefore in my opinion evidence being the house tax receipts, earliest of which is of the year 1979, and the documents Ex.PW
and Ex.PW1/8, cannot be held by this Court to be such evidence to show open, hostile and continuous possession for 30 years of the suit land, and especially because these documents do not mention either the area of the land to be 5100 sq. yds. with the appellant/plaintiff or where exactly the land is which is the subject matter of these documents as neither the house tax receipts nor the documents Ex.PW
and Ex.PW
referred to any occupation of the appellant/plaintiff of any part of Khasra no.1531 of village Aliganj. Further, mere self-serving oral evidence being the deposition of the RFA No.661/2017 Page 14 of 23 appellant/plaintiff cannot help the appellant/plaintiff to prove his claim of adverse possession inasmuch as adverse possession has to be proved essentially through documentary evidence and courts cannot divest ownership of a true owner, that too being the public land, on the basis of oral evidence by which the appellant/plaintiff claims to be the owner by means of adverse possession for a period not less than 30 years. In my opinion, therefore, the court below has rightly held that the appellant/plaintiff is not entitled to the relief of injunction on account of being owner of the suit land by means of adverse possession.
19. Learned counsel for the appellant/plaintiff argued that appellant/plaintiff is entitled to the relief of not being dispossessed without due process of law, however, I have asked the counsel for the appellant/plaintiff to show to this Court any cause of action pleaded in the plaint of appellant/plaintiff being in settled possession of the suit land for not being dispossessed without due process of law and it is seen that there is no averment in the plaint of the appellant/plaintiff being in settled possession for not being dispossessed without due process of law. In any case, in my opinion, court below has rightly RFA No.661/2017 Page 15 of 23 relied upon the judgments of the Supreme Court in four cases to hold that injunction could not be granted in favour of a trespasser and against the true owner and which four judgments of the Supreme Court are Premji Ratansey Shah and Others Vs. Union of India and Others (1994) 5 SCC547 Mahadeo Savlaram Shelke and Others Vs. Pune Municipal Corporation and Another (1995) 3 SCC33 Tamil Nadu Housing Board Vs. A Viswam (Dead) by Lrs (1996) 8 SCC259and Ramniklal N. Bhutta and Another Vs. State of Maharashtra and Others (1997) 1 SCC134 The relevant paras of the trial court reproducing the relevant paras of the Supreme Court judgments in the aforesaid cases are contained in paras 48 to 51 of the judgment of the trial court, and these paras read as under:-
"“48. Before appreciating the respective contention of both the parties, examination and scrutiny of evidence of parties. Let us peruse the law laid down by the Apex Court. I would like to refer to certain judgments of Hon'ble Supreme Court with regard to the fact that where a person come within the category of encroacher. The Hon'ble Apex Court in the matter of Premji Ratansey Shah vs. Union of India, 1994 SCC (5) 547 held as under:
"4. It is seen that in a suit as originally framed, they sought for a declaration that the award made in respect of the land was void, inoperative and does not bind the petitioners. But that relief had been given up. Thereby, the title of the land of the railways have not been questioned. With award made under Section 30, the vendors of the petitioners got themselves bound by the above award under Section 12 of the Act. It is also seen that the two awards had become final and possession was delivered to the railways by the Land Acquisition Officer on 24.2.1960. Thus defendants 3 and 4 had no ghost of right, title or interest in the lands acquired from the original owner Maibal. The said RFA No.661/2017 Page 16 of 23 sale is a void sale and the petitioners, therefore, cannot derive any interest under the agreement of sale to resist the possession of the lawful owner nor could the declaration sought for be given. The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under section 41 (j) of the Specific Relief Act, 1963, the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.
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 favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession as against the owner. Pretest of dispute of identity of the land should not be an excuse to claim injunction against true owner".
49. Corporation, (1995) 3 SCC33it is held as under: In the mater of Mahadeo Savlaram Shelke v. The Puna Municipal
"9. It is settled law that no injunction should be granted against the true owner at the instance of persons in unlawful possession. It is true that the appellants placed reliance in their plaint on the resolutions passed by the Municipality on 11.11.72 and 29.11.72. A reading of those resolutions would prima facie show that possession would be taken where the acquisition proceedings have become final and land acquisition proceedings would not be pursued where award has not been made is on the date of the resolutions. In this case, since the acquisition proceedings have become final then necessarily possession has to be taken by the Corporation for the public purpose for which the acquisition arises whether the appellants can seek reliance on two resolutions. They furnish no prima facie right or title to the appellants to have perpetual injunction restraining the Corporation from taking possession of the building. The orders of eviction were passed by due process of law and had become final. Thereafter no right was created in favour of the appellants to remain in possession. Their possession is unlawful and that therefore, they cannot seek any injunction against the rightful owner for evicting them. There is, thus neither balance of convenience nor irreparable injury would be cause to the appellants."
50. Lrs, 1996 (8) SCC259 it is held as under: In the mater of Tamil Nadu Housing Board vs. A. Viswam(dead) by
"11. From the facts in this case, it would be clear that possession must have been taken of the land consisting of 339 acres including 1.33 acres in Survey No.140/4. It is seen that when the land was acquired for planned development of the city and a large chunk of building has RFA No.661/2017 Page 17 of 23 already been built up and the land admeasuring about 1 acre 52 cents has been set apart for park purpose, obviously along with other lands, the disputed land was taken possession of and construction was made as per plans. Would it be possible for the appellants, without delivery of possession to the Housing Board, to construct such massive constructions and leave out only this part of the land bearing Survey No.14
which was set apart for public purpose, namely, public amenity of park?. The marking of the plan would emerge only after the land is taken possession of and demarcation thereof is made and constructions are carried out. It is erroneous to believe that possession still remained with the respondents and the LAO had not taken possession only of this piece of land. It is not the case of the respondent that he resisted taking possession of the land by LAO and thereafter the LAO took no action to have him dispossessed. The Single Judge has not adverted to these material facts and the circumstantial evidence available from the established facts. He proceeded to consider on the premise that since the acquired land was not used for building purpose and possession was not taken, acquisition stood lapsed. Equally erroneous is the reasoning given by the District Judge. The High Court is wholly illegal in its conclusion. The District Judge proceeded on the premise that the revenue records do not show the name of the appellant mutated and the land was not registered in the name of the and unjustified. Section 11 (4) read with Section 51 of the Act itself exempts registration of the, land acquired under the Act. The District Judge had obviously ignored the statutory provisions. It was unnecessary for the Housing Board to have the lands mutated in the revenue records and have its name entered therein. It was not for its purpose. It was for public purpose i.e. for construction of the houses and allotment there of to the needy persons. After the construction of the houses, the public park stood vested in the acquisition. Obviously, at this stage the Municipality would have come to take possession exercising its jurisdiction when illegal encroachment was found on the land. At this stage, notice was given to the respondents and the respondents filed the suit for perpetual injunction.
12. Thus considered, the title of the land in Survey No.14
having been vested in the appellant, to whomsoever it belonged earlier, it stood divested from him/them and no one can lay any claim to the said acquired land once over and claim injunction on that basis. The injunction, therefore, cannot be issued against the true owner, namely, the Housing Board in whom the land ultimately stood vested and then stood transferred to the Municipal Corporation. A trespasser cannot claim injunction against the owner nor can the Court issue the same."
appellant. These circumstances are wholly illegal 51. (1) SCC134it is held as under: In the mater of Ramniklal Bhutta vs. State of Maharashtra, 1997 RFA No.661/2017 Page 18 of 23
"10. Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all round economic advancement to make our economy competitive in the world marked. We are anxious to attract foreign direct investment to the maximum extent. We propose to compete with China economically. We wish to attain the pace of progress achieved by some of the Asian countries referred to as "Asian Tigers" i.e. South Korea, Taiwan and Singapore. It is however, recognized on all hands that the infrastructure necessary for the sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernization. These things very often call for acquisition of land and that too without any delay. It is however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in Courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisitions is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the Courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 in discretionary. It will be exercised only in furtherance of interests of justice and not merely on making out of legal point. And in the matter of land acquisition for public purposes, the interests of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit granting of injunction or other similar orders, more particularly on an interlocutory nature, is equally discretionary. The Courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 - indeed any of their discretionary powers. It may even by open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceeding is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisitions proceedings."
20. I may also note that the trial court has rightly relied upon the case of Ananthula Sudhakar Vs. P. Buchi Reddy (2008) 4 SCC RFA No.661/2017 Page 19 of 23 594 that the subject suit was only a suit for injunction and in such suits when there is a claim for title made, then, the appellant/plaintiff had to seek the relief of declaration of ownership by title of adverse possession and which admittedly the appellant/plaintiff has not sought as per the plaint. In any case, in my opinion, the observations by the trial court with reference to the case of Ananthula Sudhakar (supra) are really as a matter of abundant caution and essentially the suit for injunction of the appellant/plaintiff has to be dismissed because the appellant/plaintiff has failed to prove his case of adverse possession with the fact that no injunction can be granted in favour of a trespasser and against the true owner more so with respect to the public land in view of the ratio of the aforesaid four judgments of the Supreme Court. 21.(i) Learned counsel for the appellant/plaintiff places reliance upon two judgments of the Supreme Court in the cases of Subramanya Swamy Temple, Ratnagiri Vs. V. Kanna Gounder (Dead) by LRs. (2009) 3 SCC306and Rame Gowda (Dead) By LRS. Vs. M. Varadappa Naidu (Dead) By LRs. and Another (2004) 1 SCC769 I fail to understand as to how these judgments at all can help the RFA No.661/2017 Page 20 of 23 appellant/plaintiff inasmuch as the trial court has rightly relied upon the four judgments of the Supreme Court that injunction cannot be granted to a trespasser as against the true owner more so with respect to public land. Also, I would like to observe that injunction is a discretionary relief and therefore cannot be granted against equity and against the true owner. In the two judgments relied upon by the appellant/plaintiff there is no issue of encroachment of public land and in any case benefit of the judgments relied upon by the appellant/plaintiff could have been given to the appellant/plaintiff if there was evidence with respect to the appellant/plaintiff being in possession of the 5100 sq. yds. of the khasra number in question , but, and as already discussed above, there is absolutely no worthwhile evidence at all with respect to the claim of the appellant/plaintiff on being in possession of an area of 5100 sq. yds. of land forming part of khasra no.1513, Village Aliganj, New Delhi and to be taken with the fact that even as per the plaint whatever construction was made by the appellant/plaintiff has been already demolished by the DDA. (ii) In the recent judgment in the case of Behram Tejani and Others Vs. Azeem Jagani (2017) 2 SCC759it has been held by the RFA No.661/2017 Page 21 of 23 Supreme Court that long possession of a gratuitous licensee does not create any right or interest in the property, and therefore, long possession of a gratuitous licensee will not entitle such a person to grant of injunction against dispossession. In the present case, it is seen that the appellant/plaintiff has failed to prove his right/title in the suit land as the case of adverse possession pleaded has failed. Therefore mere long possession without any right/title of the appellant/plaintiff will not entitle the appellant/plaintiff to the discretionary relief of injunction.
22. In view of the above discussion, it is held that the suit of the appellant/plaintiff so far as the relief claimed of injunction, has been rightly dismissed by the trial court, and this Court upholds the judgment of the trial court dismissing the suit of the appellant/plaintiff for injunction. Appeal to this extent against the judgment of the trial court is dismissed.
23. Learned counsel for the appellant/plaintiff however has argued that trial court has committed a manifest error in imposing costs of Rs.7crores upon the appellant/plaintiff inasmuch as it is argued that under Section 35 CPC such high costs of Rs.7crores could RFA No.661/2017 Page 22 of 23 not have been awarded against the appellant/plaintiff. Accordingly, limited to the issue of imposition of costs of Rs.7crores on the appellant/plaintiff, let notice be issued to the respondents/defendants, on filing of process fee, both in the ordinary method as well as by registered post AD, returnable on 30th November, 2017.
24. Next date of 21.8.2017 is cancelled. AUGUST08 2017 Ne VALMIKI J.
MEHTA, J RFA No.661/2017 Page 23 of 23