ASHOK KUMAR Vs. MCD

JUDGEMENT

(1.) THIS appeal has been filed against the impugned judgment and decree dated 03.11.2010 which had endorsed the findings of the trial Judge dated 03.11.2009 wbereby the suit of the plaintiff Ashok Kumar seeking permanent injunction against the Municipal Corporation of Delhi (defendant No. 1) and MCD Slum & JJ Colony Department (defendant No. 2) was dismissed. THIS finding of the trial Judge was affirmed in the appeal Court.

(2.) THE plaintiff is stated to be the proprietor of Ashoka General Store, Khokha No. 4, near Municipal Corporation Primary School, new Seelampur, Delhi. In 1962, the father of the plaintiff namely Daulat Ram had been allotted this khokha in terms of an allotment order dated 22.09.1976 (Ex. PW-1/4); in lieu of a benefit of a sterilization scheme. THE contention of the plaintiff was that his father Daulat Ram had participated in the sterilization scheme; he had voluntary tendered himself for sterilization; in view thereof he had been allotted this khokha. After the death of his father in 1986, the plaintiff Ashok Kumar was legally entitled to retain possession of this khokha. Reliance has been placed on Ex. PW-1/4 to substantiate his submission that the act of the defendant in threatening to demolish this khokha is unwarranted; a decree of permanent injunction had been sought.

(3.) ORAL and documentary evidence was led by the respective parties. The allotment letter dated 22.09.1976 had been proved as Ex. PW-1/4. Death certificate of the father of the plaintiff had been proved as Ex. PW-1/5. PW-2 had been summoned from the Slum & JJ Department, MCD. PW-2 had deposed that these colonies were developed by the DDA and the plots were allotted by them; Slum & JJ Department did not have any such policy as it is only managing these colonies; the allotment as summoned is not available in their office. Even in the subsequent statement of PW-2 recorded pursuant to an application filed by the plaintiff seeking his resummoning, he had deposed on oath that the copy of allotment letters issued to Faqir Mohammad, Prabhati Lal, Radheshyam and Hazmat Ali allotted under the sterilization scheme was available; he had produced the record pertaining to shops No.2, 3, 6, 9, 10, 11, 12, 13, 17, 18, 19 & 20; copy of the allotment letters had been exhibited as Ex. PW-2/3 to Ex. PW-2/7. The case of the plaintiff is that he had been allotted Khokha No. 4 at New Seelampur. The record produced by PW-2 was of Nehru Market; he had categorically stated that this is only known as Nehru Market; he had denied the suggestion that Nehru Market also known as Nasbandi Market.