JUDGMENT CM No.25502/2017 (for exemption)

1. Allowed, subject to just exceptions.

2. The application is disposed of. CM(M) 743/2017 & CM No.25501/2017 (for stay)

3. This petition under Article 227 of the Constitution of India impugns the order (dated 11th May, 2017 in Case No.95639/2016 of the Court of Civil Judge, Central District, Tis Hazari Courts, Delhi), deciding against the petitioners/defendants a preliminary issue framed in the suit filed by the respondent/plaintiff against the petitioners/defendants.

4. The petition came up before this Court first on 21st July, 2017, when it was enquired from the counsel for the petitioners/defendants as to how a petition under Article 227 of the Constitution of India was maintainable and whether not the impugned order constitutes a decree within the meaning of Section 2(2) of the Code of Civil Procedure, 1908 (CPC) and would be appealable as such.

5. The counsel for the petitioners/defendants sought to withdraw the petition with liberty to take appropriate remedy. However, since the said aspect was being considered by me in another matter pending before this Court, intending the orders to be passed in Chamber, the file was sent to the Chamber.

6. However, the orders in the other matter as well as this matter remained to be passed and the files went on a back burner. The counsel for the petitioners/defendants, on 28th August, 2017 mentioned the matter and handed over copies of judgments in Vidyodaya Trust Vs. Mohan Prasad, (2006) 7 SCC 452 and Murari Lal Vs. Madan Lal Moondra, MANU/DE/2223/2015 in support of maintainability of the petition.

7. I have considered the controversy.

8. The respondent/plaintiff instituted the suit, from which this petition arises, for permanent injunction restraining the petitioners/defendants from trespassing into Khasra No.366 of Village Chaukari Mobarakbad and from demolishing the boundary wall there around as shown in the site plan filed with the plaint.

9. The petitioners/defendants contested the suit inter alia pleading that the respondent/plaintiff have no locus standi to institute the suit and to seek injunction against the petitioners/defendants who were the rightful and lawful owners of the land and it was the respondent/plaintiff who was a trespasser and the respondent/plaintiff had no right to seek equitable and discretionary relief of injunction against the petitioners/defendants who are the lawful owners. It was further pleaded that the respondent/plaintiff was party to the demarcation proceedings conducted by the Revenue Officials in the months of March/April, 1988 and wherein it was found that the respondent/plaintiff had tresspassed over 3 bighas 5 biswas i.e. 3250 sq. yds. of land; the respondent/plaintiff did not file any objections to the said demarcation report and did not dispute the same and instead of surrendering the possession of the land, on which it had been found to have encroached, to the petitioners/defendants, had filed the suit. It was also the plea of the petitioners/defendants that the suit filed by the respondent/plaintiff was a counter-blast to the suit filed by the petitioners/defendants.

10. In the aforesaid state of pleadings, the following preliminary issue was framed in the suit on 19th May, 2016:

"Whether the suit for simplicitor permanent injunction is maintainable or not being barred u/s 41(h) of the Specific Relief Act? OPP"

11. The learned Civil Judge, in the impugned order has recorded (i) that it was the contention of the counsel for the petitioners/defendants that the real dispute between the parties was a boundary dispute which was required to be adjudicated by the Revenue Authorities under Section 28 of the Delhi Land Revenue Act, 1954 and the Competent Authority thereunder had got the land demarcated; (ii) that the remedy available to the respondent/plaintiff to avoid the said demarcation report was to file an appeal before the Appellate Authority in terms of Section 64 of the Delhi