JUDGMENT

J.D. Kapoor, J.(Oral)--This is a suit for possession and mesne profits filed by the plaintiff mainly on the premise of possessory title as envisaged in Section 6 of the Specific Relief Act. Case of the plaintiff in brief is as follows:

2. That his father Shir Nathu Mal had held, owned and possessed the land comprised in Khasra No. 383 Village Tihar, New Delhi measuring 4 bighas 9 biswas since 1977 and after his demise on 5.2.89, the plaintiff owned and possessed the said land and part of it was taken in the `abadi' and for road widening and thus the open land that remained with him was about 2 bighas. That the land adjacent to the land of the plaintiff comprised in Khasra No. 1573 was in the possession of the defendant Municipal Corporation of Delhi (in short MCD) where MCD had constructed stores there. Shri Chet Ram filed suit for recovery of possession against MCD in regard to his land which had been allegedly encroached upon by the MCD and secured a decree for possession and when the said decree was got executed by Shri Chet Ram the M.C.D. on 4.4.1993 caused encroachment and illegally possessed the land of the plaintiff i.e. the suit land. That in spite of the legal notice dated 28.4.1993, the defendant did not remove itself and instead sought to cause unauthorized construction. The plaintiff was constrained to file the instant suit for possession and mense profits under Section 6 of the Specific Relief Act within six months from the date of dispossession.

3. In the Written Statement, the defendant has taken the plea that the suit is barred under section 477 and 478 of Delhi Municipal Corporation Act as well as under section 10 of the Civil Procedure Code and has further averred that the land in question is under its physical possession without any interruption and as such the plaintiff is not entitled to the relief sought by it. The defendant has also accused the plaintiff for suppressing the factum of having filed the earlier suit before the Senior Sub Judge, Delhi which is pending in the court of Civil Judge and it is further averred that he has no document and title in respect of the land in question nor has he produced or supplied any copy of the document showing his title over the suit land. Ass regard the suit filed by Shri Chet Ram against the MCD, it is averred that the said suit already stands disposed of and the plaintiff has not referred to the proceedings and judgment passed in that suit.

4. In replication, the plaintiff has reiterated his possession over the suit land since 1989 i.e. after the demise of his father. However during the pendency of the suit, the defendant MCD has filed a report to the SDM to the effect that as per revenue record of Village Tihar the land comprising Khasra No. 383 measuring 4 bighas 9 biswas is an evacuee property in the name of Yaseen etc. The SDM inspected the site and found privately built up houses.

5. On the basis of the claims and counter-claims, the following issues were framed on 21.3.96 for determination:

1. Whether the suit of the plaintiff is barred under Sections 477-478B D.M.C. Act? OPD

2. Whether the suit is barred under Section 10 CPC? OPD

3. Whether the defendant has any right to possess the suit land? OPD

4. Whether the plaintiff is entitled to decree of possession as alleged? OPP

5. To what mesne profits is the plaintiff entitled and from what date and at what rate? OPD

6. What directions are necessary in terms of Order 20 Rule 12 CPC?

7. Relief.

6. It may be pertinent to point out here that during the pendency of the suit, plaintiff expired and an application under Order 22 Rule 3 CPC for substitution of L.Rs. was filed was allowed by order dated 9.3.1999. Amended memo of parties was filed which was taken on record.

ISSUE No.1 & 2

7. By way of document Exhibits P 3, P 4 and P 5, the plaintiff has proved the service of notice upon the defendant under Section 477 and 478 of the DMC Act. The acknowledgment Ex. P5 is sufficient proof of service.