K.L.SACHDEVA Vs. M.C.D

JUDGEMENT

(1.) This is a suit for declaration, injunction and damages. It was initially filed against the Municipal Corporation of Delhi (MCD). Subsequently, vide order dated 02.08.2006, the Janak Park Plot Holders Welfare Society (Regd.) was impleaded as "Defendant No. 2" (hereinafter referred to as the "Society"). The plaintiff is stated to be owner in possession of house No. WZ 406/R, Janak Park, Hari Nagar, Clock Tower, situated over plot No. 43 out of Khasra No. 1496, Village Tihar, New Delhi. Land of the said plot is stated to be admeasuring 427.5 square yards. He stated to have purchased this land vide registered conveyance deed dated 28.03.1963 executed by Assistant Settlement Commissioner, Ministry of Rehabilitation, Govt. of India. His case is that he raised pucca construction on 220 square yards and thereafter built two rooms on additional area of 100 square yards and left vacant remaining area of 107.5 square yards. A Civil Suit for permanent injunction being suit No. 278/1995 was filed by him against one Anil Maria in Civil Court in respect of the vacant area of 107.5 square yards. In the said suit, on 21.07.1995, the Civil Judge passed order of status quo in respect of the said portion of 107.5 square yards. It is alleged that the Society, the defendant No. 2, herein, filed a civil suit against him, being Suit No. 430/1998, alleging him to be trying to encroach upon the areas of plot No.44 & 45 earmarked as public parks. The MCD was also one of the defendants in the said suit. In the said suit, the MCD had stated to be having no concern with the suit land as it was the Ministry of Rehabilitation, Govt. of India which was the custodian of the said land. In the said case, an application under Order 39 Rule 1 and 2 CPC was filed by the plaintiff therein (Society), which came to be disposed vide order dated 29.07.2002 restraining the plaintiff herein from raising any illegal construction on the plots bearing No 44 and 45 of Khasra No. 1496. The plaintiff carried the matter in appeal which was dismissed by the learned ADJ vide order dated 23.05.2003. During the pendency of the said suit No. 430/1998, the society (defendant No.2) filed another suit being suit No. 707/2002 against the plaintiff. All the three suits, noted above, are stated to be pending.

(2.) The cause of action for filing of the instant suit, as averred by the plaintiff, is that after the dismissal of his appeal on 23.05.2003 by the learned ADJ, the MCD officials demolished a portion of the suit premises on 16.09.2003 and thereafter the Horticulture Department started digging the trenches therein. The plaintiff has sought declaration that he is the owner in possession of the suit premises i.e. House No. WZ-406/R, situated in plot No. 43 admeasuring 427.5 square yards out of khasra No. 1496, Village Tihar and has also sought injunction against the defendants from dispossessing him from the suit premises or any part thereof. He has also claimed damages of Rs.2.00 lakh on account of demolition carried by defendant No. 1 MCD.

(3.) The common case as set up by both the defendants in their written statements is that plaintiff is, in fact, owner of plot No. 43, admeasuring 220 square yards in Khasra No. 1496, village Tihar and has encroached upon the adjacent plots No. 44 and 45 which are earmarked as public park as per the plan regularized by the MCD in 1962 and as also shown in modified regularized plans of Janak Park dated 16.01.1982. The background facts of the colony of Janak Park are stated that it came into existence in 1958 and the plaintiff had purchased the plot No.43 measuring 220 square yards in 1958. Each plot in the colony was of the area of 200 square yards excepting the corner plots which were of 220 square yards. It is stated by defendant MCD that earmarking of the lands for roads and parks was mandatory for regularization of plans and that the plots No. 44 and 45 were earmarked for public park, but, the plaintiff taking advantage of his plot being adjacent, encroached upon these plots. The MCD also stated that it was not a party in the civil suit No. 278/1995, filed by the plaintiff against Anil Maria and that with regard to the stand taken by the MCD in the suit No. 430/1998 that it had no concern with the suit lands, an inquiry was ordered by the Commissioner. The MCD also submitted that the demolition was carried on the plots No. 44 and 45 of Khasra No. 1496 which were earmarked as park and no demolition was carried on any portion of the building on plot No. 43 of the plaintiff and thus there is no question of any damages suffered by the plaintiff.