M/S TEXMACO INFRASTRUCTURE & HOLDING LTD v. CH RAM SWAROOP WRESTLING CLUB

1 Petitioner is aggrieved by the order dated 15.7.2015 vide which his application filed under Order XII Rule 6 of the Code of Civil Procedure (hereinafter referred to asthe Code)in the pending suit had been dismissed. CM(M)No.771/2015 2016:DHC:8595

2 Petitoner is defendant no.2in the Trial Court.

3 Record shows that the present suit has been filed by Ch.Ramswaroop Wrestling Club (hereafter referred to as the plaintiff) seeking relief of declaration,mandatory injunction and permanent injunctions. The version of the plaintiff was that "TIKONA AKHARA"(situated in F-Block, Kamla Nagar,Delhi measuring 325.82 sq. yards)is a public land. It belongs to the MCD;this is open for use by all citizens. The plaintiff(since deceased)was in possession of this"TIKONA AKHARA" since the year 1945. He has formed the Ch. Ramswaroop Wrestling Club. After hds death his son Raghuwar Singh @ Raghuwar Pehlwan has carried on this legacy. The plaintiff participated in various wrestling competitons and has brought various laurels to the coujftry. Defendant nos.I to 4(M/s Birla Textiles Ltd.) are claiming false ownership over this land. The land belongs to defendant nos.[5] and 6(MCD). It is a public land. The suit was accordingly filed. The prayers made in the plaint are relevant and it read herein as under; "i) to pass a decree of declaration in favour of the plaintiff and against the defendants no.l to 4 thereby declaring that the suitproperty i.e. "Tikona Akhara" situated along side the Wall of Nagar Nigam Kanya Vidyalaya, Block "F",Kamla Nagar,Delhi-110007, more clearlyshown red colour in the annexed site plan is the property ofthe defendant No.5/MCD andis apublicland meantfor use asplaygroundi.e. Wrestlingground; CM(M)No.771/2015 Page2of[9] ii) to pass a decree ofMandatory injunction infavour oftheplaintiffand againstthedefendantNo.5and6herebydirectingthem toallow theplaintiff club to continue to carry on Wrestling activities atsuitproperty i.e. Tikona Akhara. Hi)to pass a decree ofpermanent injunction infavour oftheplaintiffand against the defendants No.l to 4 thereby restraining defendants No.l to 4, their agents, officials, servants, etc., etc. from taking over the physical possession ofthesuitproperty i.e. TikonaAkhara,orconverntingthe useof thesameforcommercialactivities; n ^ iv)toawardcostoft^proceedingsthroughoutInfayotxn^ftheplaintiffand againstthedefendants. f'frt \ v)anyotherorder/swhich thisHan'ble Courtmaydeem0andproper may also bepassedintheinterestofjustice." |

4 Written statementwasfiled bydefendantno.2. Itwas(^niedthatthe defendant is fafsely claiming to be the ownerof the land in question.. Submission was that pursuant to an exchange dee^^ated 13.9.1954(duly registered)thesaid areaof146sq.yards wasgiventoM/sBirlaTextilesLtd. who had become the owner ofthe land in question. Pursuant to an order of amalgamation between defendant nos.l and 2, defendant no.2( M/s Texmaco Ltd.)had acquired all rights and titles ofthe land in question and had become the owner of the land in question. Having acquired the same from M/s Birla Textiles Ltd.,defendant no.2 is now the owner ofthe land in question. In consideration ofthe exchange deed a sum of Rs.8411/- had CM(M)No.771/2015 Page3of[9] 0^ been givenbythedefendantstothe MCD;theMCDhavingtransferredallits rights in this land to defendant no.l and now defendant no.2 has since acquired ownership and title in the suitland. It was denied thatthe land in question belongsto defendantno.5;itwasoffered asaplay ground. Inthis written statement it was further stated that in the year 1984 certain proceedings under Section 145 ofthe Cr.P.C.were gotinitiated inter se the partiesandlateRaghuvarSinghand hisspns^un^cessfullytriedtograbthis land The SDM on-27.12.2001 appointed the SHOjfelice Station Roop Nagar as custodial the land in question. The orderpfithe SDM was challenged before the Court ofSesipns Judge. On 08.9.200^the Sessions Judge had granted possession ofthe land in question tothe defendant no.2. The matter reached ^e High Court;in/Criminal Revision Petition No.4732/2005. The High Court on 04.01,Z0f^ dismissed this petition thus endorsing the order ofthe Sessions Judg^nd holding that possession be retained by defendant no.2. The possession letter indicating that possession ofthe suit land is with defendant no.2 is dated 22.4.2013. The fact that the possession ofthe suitland is with defendantno.2isalso an admittedfact.

5 Seprate written statement was also filed by defendant nos.[5] and 6 i.e. the Municipal Corpopration ofDelhi. Their stand was that in terms ofthe CM(M)No.771/2015 Page4of[9] exchange deed dated 13.9.1954 this suit land measnring 146 sq. yards was exchanged with defendantno.l and the MCD had handed overthe title and possession of the suit land to defendant no.l(now with defendant no.2). Furthersubmissioninthe written statementofthe MCDbeingthatdefendant nos.l to 3 always being in possession ofthe suit land and their possession has been endorsed by thejudgmentofthe High Court m Criminal Revision Petition No.4732/2005 in itsjudgment dated 04.01.^013. In para 10 ofthe written statement,the Department further states that th^laintiffhas filed documents which arenot registered. It is stated that thedocuments relied uponbythe plaintiffdonotrelatetothesuitpropertyandtheerstwhileMCD (now North Delhi Municipal CorporationXon are-examinationofthe matter qua ownership ofthe suit property has found thatthe erstwhile Municipal Committee hadinfact exchangedthe suitland with defendantno.l by virtue ofanexchange deed dated 13.9.1954;plaintiffIsmdtin possessionofthesuit premises; plaintiff is misreading the documents and trying to mislead the Court by relying upon only an extract ofan Immovable Property Register. In paras 11 and 12 of the written statement, on the identity of the suit property it was stated that the plaintiffis taking undue advantage ofthe fact that a portion of the suit land without any proper dimensions or the area CM(M)No.771/2015 Page5of[9] -v -J \\ having been mentioned and only by placing a copy ofthe extract ofthe Immovable Property Register has attempted to show that it is a municipal land.

6 In view ofthe aforenoted pleadings, an application under Order XII Rule 6 of the Code came to be filed by defendant nos.l and 2. Their contention was that there were clearcut admissions made in the pleadings which entitles the suit to be disposed of straightway; the exchange deed dated 13.9.1954 beipg a registered documentclearly^^show thatthe suitland had beenexchangedbetweendefendantno.l andtheMCDj.thepossessionof the suit land has been endorsed by the orders passed by th|SDM under I' Section 145 of|he Cr.P.C. which has been affirmed by the High Court on 04.01.2013. The prayer made in the petition no. longer^fsurvives. The judgment/decreeontheadmissionsofthepartiesshouldstraightwayfollow.

7 Learned counsel for the petitioner>has placed reliance upon 2015 II AD(Delhi)1S9/?^z/^ Be^um(Smt) Vs. DelhiDevelopmentAuthority& Ors.,211(2014)DLT 149(Division Bench)Keshav Chander ThakurandAnr. Vs. Krishan Chandedr & Ors..2011(3)RCR(Civil)932 RamrameshwariDevi and Ors. Vs. Nirmala Deviand Ors. and 223(2015)DLT 132Seema Thakur Vs. Union ofIndia & Ors. CM(M)No.771/2015 ^

8 Needlesstostatethatthese argumentshavebeenrefuted.

9 AnapplicationunderOrderXIIRule6oftheCode whichisashortcut in the trial entitles either the plaintifforthe defendantto obtain a decree on admissions provided that the admissions are clearcut, unambiguous and transparent. IfthereisacloudoveranyissueadecreeunderOrderXIIRule 6ofthe Code cannotbe granted. Thisisthe thumb rule foran application underOrderXIIRule6oftheCodetobedeci4ed.x^^^^^

10 Notingthe pleadingsofthe parties,thisCoi0^?>^the viewthatthe impugnedorderdoesnotsufferfromanyinfirmity. Tl^&#aintdisclosesthat r»' ' the exchange deed dated 13.9.1954 purported to have enteredinto between the defendant no.l and defendant no.5 does not identify the correctly. The site plan annexed with the plaint has been perused,^dmittedly no counterplanhasbeenfiledbythedefendants. Thissite planofthe plaintiff reflects the wrestling ground in the triangular portion.The southern,eastern and western sides are bounded by roads. On the northern side there is an MC Girls School. The total area has been depicted as 2932.[4] sq.feet. The submission ofthe learned counsel for plaintiffis thatthat identity ofthe suit land as given in the site plan does not conform with the land mentioned in the exchange deed dated 13.9.1954. A perusal ofthe exchange deed shows CM(M)No.771/2015 Page7of[9] ^3 thatthis is att exchange made between the Municipal Committee ofDelhi and M/s Birla Cotton Spinning and Weaving Mills Ltd. Municipal CommitteeofDelhihasbeen described asthe firstpart.Hisownership has beendepictedinthefirstschedule. Aperusalofthefirstscheduleshowsthat the land which belongs to the Municipal Committee ofDelhi at point"K" (subject matter ofexchange)Is 146sq.yards which on the northen side is bounded by M/s Birla Mills Ltd. and on...,the'8outhem side there is a municipal road;on the eastern side alsothere is a municipal road;on the western side there is,a land of M/s Birls Mills LtdA^Contention ofthe plaintiffbeingthattheidentity ofthesuitproperty isnotclearandtheland whichisthesubjectmatterofexchangedeed(dated 13.9.1954)isinfactnot the land for which the present suit has been filed is noted. Further submission that the proceedings under Section 145 ofthe Cr.P.C.are also indicative onlyofapossession and notoftitlei.e.the settled position atlaw; the possessionquathe proceedingsunderSection 145oftheCr.P.C.arealso on a limited aspect and for a temporary purpose. This stand is also noted. The additional submission of the learned counsel for the plaintiff that the inter se admissions made by defendant nos.l and 2 and defendant nos.[5] and 6are collusive and require trial is additinally noted. CM(M)No.771/2015 Page8of[9]

11 ThisCourtisthusoftheviewthatfirstandforemosttheidentifyofthe suitpropertyhastobedecidedandthiscanonlybedone afterthepartiesare relegated to a trial and after giving them opportunity to lead evidence to establish whetherthe suitlandfor whichthe presentsuithasbeenfiledis m factthesameland whichformsapartoftheexchangedeed dated 13,9.1954,

12 Thejudgmentsrelied upon by learned counselforthe petitionerhave no bearingto the factul matrix ofthe instantcase. Their ratios are wholly J inapplicable. Thefirstthreejudgments(supra)relatetothelawoflimitation which isnotanobjectiontakeninpresentcase. Thelastjudgmentisalsoon thegroundofdelayininitiatingproceedings. Noneofthemareapplicableto the presentscenario. ^

13 The impugned order in this background dismissing the application under Order XIIRule6ofthe Code suffers,fr$n n^iftfirtnity.There are no ^ clearcutadmissions,Petitoniswithoutany merit,ntfisdismissed withcosts quantified atRs.10,000/-. MARCH 17,2016 ndn A- INDERMEET KAUR,J