KISHAN CHAND WADHWA Vs. DURGA

JUDGEMENT

(1.) THE subject suit for possession and mesne profits has been filed by the plaintiff who is the owner of Industrial Plot No. E-6 in Block B-1 Extension situated in Mohan Cooperative Industrial Estate, Mathura Road, New Delhi. The plaintiff became owner of this plot by means of a perpetual sub-lease dated 27.10.1988 executed by the Delhi Administration. The present perpetual lessor is the Delhi Development Authority (DDA). After getting the lease rights in the plot when the plaintiff went to the spot it transpired that various unauthorized occupants were in possession of different portions of the plot. The plaintiff thereafter entered into correspondence with Mohan Cooperative Industrial Estate, the DDA, as also the police authorities, for removal of the encroachers, however, since no steps were taken by the requisite authorities, plaintiff filed the subject suit for possession and mesne profits.

(2.) IN this suit, the written statement was filed only by defendant nos. 10 and 17. Originally, in this suit there were 29 defendants and which list was subsequently expanded by allowing an application under Order 1 Rule 8 of Code of Civil Procedure, 1908 (CPC). An amended memo of parties was then filed expanding the array to 97 defendants. The difficulty of the plaintiff is that there are jhuggis at the spot, and which keep on changing hands, and therefore it is not known as to which different portions of the property are being transferred and when and to whom, hence the Order 1 Rule 8 CPC application. In my opinion, however it will not make any difference because under Order 22 Rule 10 CPC, read with Section 52 of the Transfer of Property Act, 1882, the decree passed in the suit will be binding against the original defendants as also all persons who claim under the original defendants once the rights arise subsequent to the filing of the suit. The Supreme Court in the case of Dhurandhar Prasad Singh Vs. Jai Prakash University & ors. 2001 (6) SCC 534 has held that it is not mandatory for the persons to whom title has devolved during the pendency of the suit to be substituted in place of original parties and the suit can be continued by or against the original parties to the suit.

(3.) IN view of the fact that the onus to prove adverse possession was on the defendants and no evidence is led on behalf of the defendants, and thus issue no.4 is decided against the defendants.