MANGE RAM GUPTA Vs. NEW DELHI MUNICIPAL COMMITTEE

JUDGEMENT

(1.) . A triangular piece of land measuring about 45 square yards exists in front of Premises No.78, Tolstoy Lane, New Delhi is the subject matter of this second appeal which has been directed against the judgment of the learned Additional District Judge, Delhi dated 16-9-1980 whereby the appeals filed by the respondent NDMC have been allowed and cross-objections filed by the appellant herein have been .acordingly disposed of.

(2.) . The appellant herein had fled a suit for perpetual injunction against the respondent MDMC for restraining them from interfering with the possession and enjoyment of a piece of land rneasuring 45 square yards approximately, allegedly forming part of 78 Tolstoy Lane, New Delhi. The suit was filed with the averments that the appellant was a lessee f premises No.78, Tolstoy Lane, New Delhi and the aforesaid piece of land is a part of the leased premises and the appellant had been carrying on the business of repairing motor vehicles at the said premises for the last 35 years. In the year 1961-62 he was prosecuted under the provisions of Motor Vehicles Act for parking motor vehicles in a no parking zone but was acquitted on his plea that the disputed piece of land formed part of his workshop. It was further alleged that on 22-9-1972 some employees of the respondent NDMC came to the workshop of the appellant and forcibly removed rear seat of a car parked on the triangular plot holding out that it was Municipal land and the appellant had no right or authority to park vehicles there. The said act of the NDMC was stated to be illegal and mala-fide an interference in the rightful continuous use and enjoyment of the piece of land by the appellant in his own right by way of adverse possession. The suit was contested by the respondent NDMC challenging the very maintainability of the suit in view of the provision of Section 41 of the specific relief Act and Section 173 of the Punjab Municipal Act, 1911 for the purpose of seeking equitable relief f injunction and alleging that the appellant is an encroacher on the public passage or the open piece of land which is part of road berm vesting in the respondent NDMC. It was denied that the appellant had any right or title to use the said piece of land or he had been in exclusive possession thereof. It was aditionally pleaded that it was the statutory duty of the NDMC to remove the encroachers and take action under Section 173 of the Punjab Municipal Act, 1911 and, therefore, no restriction or injunction as sought For by the plaintiff-appellant could be granted.

(3.) . On the pleadings f the parties the following issues were framed:-