Ishwar Singh v. University of Delhi & Anr

1. By the present petitions filed under Section 115 of the Code of Civil Procedure (CPC), the petitioner seeks to impugn three orders each dated 02.07.2016. By the said orders three applications filed by the petitioner CM[M) 198/2016 Page 1 2016:DHC:8785 under Order 1 Rule 10 CPC, Section 151 CPC and Order 26 Rule 9 CPC respectively were dismissed.

2. The petitioner hasfiled the suitfor permanentinjunction claiming that he is the owner and in exclusive vacant and peaceful possession of the property bearing No. Khasra No. 126 admeasuring 1 Bigha 8 Biswa and Khasra No. 135 admeasuring 1 Bigha 12 Biswa in Village Dhaka,Delhi.It is the claim ofthe petitioner that he is in uninterrupted peaceful cultivatable possession of the suit property since prior to, 1969. The respondent/University ofDelhi has in the written statement stated that they have taken over possession of62.90 Acres ofland from DDA on 25.03.1988 but unauthorised cultivation and encroachment has not been cleared by DDA in spite ofvarious letters/communications. It is further stated that on 02.05.2000 some unauthorised occupants had broken a portion ofSouth End ofthe wall which later reconstructed on 03.05.2000. It is contended that the boundary wall was constructed on the land which indisputably belongs to the respondent.

3. The suit was filed in the year 2000 and appears to have been lingering on for various reasons. Till date even issues are said to have not been framed.

4. Asfar as the application under Order 1 Rule 10 CPC is concerned,by the said application the petitioner sought impleadment of DDA as a respondent. The trial court noted that earlier also the petitioner had moved a similar application for impleadment of DDA which was dismissed on 19.12.2001.Noting thatthe doctrine ofresjudicata would also be applicable to the present application,the application was dismissed.

5. Learned counsel appearing for the petitioner has sought to argue that CMfMl 198/2016 Page[2] DDA is a necessary party as the record oftitle would be available only with DDA.He submits that in the absence ofappropriate record,the petitioner is not ableto move forward in the presentsuit.

6. There is no merit in the contention ofthe petitioners. The trial court has rightly dismissed the application relying upon the judgment of the Supreme Court in the case ofArjun Singh vs. Mahindra Kuma,AIR 1964 SC993and otherjudgments.

7. The petitioner having filed the suit,it is for the petitioner to prove his case. As per Section 101 of the Indian Evidence Act whoever desires the court to give judgment as to any legal right dependent on the existence of facts which he asserts must prove that those facts exist. Henee, merely because the petitioner seeks to obtain evidence from DDA would not be a ground to implead DDA as party to the suit. At best DDA may be considered as an appropriate witness. He said application was rightly dismissed.

8. The second application has been filed by the petitioner under Section 151 CPC.This application is filed on 09.05.2000 and has been pending since then.By this application, it is submitted thatthe petitioner may be permitted to make a passage to the land in question which has been blocked by constructing a boundary wall. In the written statement filed by the respondent, the respondent have pointed out that the petitioner cannot use the passage through the demarcated wall which goes through the girls' hostel.It is further stated that a proposed road has already been constructed giving passage to one side ofthe unauthorised cultivated land.

9. The trial court noted that in the plaint the petitioner has not made any averment that there is any public way. As primarily the claim of the CMfM]198/2016 Page 3 petitioner was based on adverse possession, the real owner as held by the trial court can validly raise wall around such property. Based on this, the application was dismissed.

10. In my opinion, there is no infirmity in the impugned order. The application has been pending since the year 2000 i.e. for 16 years. The petitioner having not been able to access the property for 16 years as claimed cannot now seek interim order in this manner instead of pursuing adjudication ofthe main suit.In any case,the title claimed through adverse possession would have to be proved in trial and cannot be determined in an interim application.

11. The third application filed was under Order 26 Rule 9 CPC. By this application,the petitioner sought a Local Commissioner be appointed to find the currentstatus ofthe property.For the reasons stated above,while dealing with the application under section 151 CPC,this application has also rightly been dismissed by the trial court.

12. There is no merit in the present petitions. The same are dismissed. All pending applications also stand dismissed.

JAYANT NATH,J DECEMBER 15,2016 rb