A decree for mandatory injunction can entail removal of encroachments and like possession claims, even when not explicitly stated, emphasizing the Court's authority to protect property rights.

JUDGMENT

Najmi Waziri, J.

1. The present proceedings arise out of a decree passed in a suit preferred by the respondents seeking mandatory and perpetual injunction against the defendants i.e. the present appellant, directing the defendant, his servants, relatives, employees and agents to remove sign boards, A/C sheets, fencing and other temporary unauthorized structures put up by him in Sujan Singh Park, New Delhi, as well as restraining them from entering and/or stepping into any part of Sujan Singh Park, New Delhi.

2. The first appeal against the said order was dismissed. Hence this second appeal.

Facts

3. The appellant claims to be the mahant/owner and beneficiary of land admeasuring 165 ft. x 111 ft. in Sujan Singh Park, New Delhi, on the basis of a Daan Patra dated 20.11.1974 executed by Sir Sobha Singh in his favour. He also claims to be in possession of the said land. It is respondent's (plaintiff) case that they are the owner of the Dera Gurudwara, which is a part of the Sujan Singh Park; that the appellant (defendant) was illegally occupying one room (Kothri) measuring 10 ft. x 10 ft., at the back of Gurudwara as per the Plan (annexed at volume 1, pdf pg. 205, volume 2, pdf pg. 157). The appellant/defendant has contested the suit contending that he was in the lawful possession for the past 14 years. Another suit was filed by the respondent, which too was decreed and the kacha room constructed by the defendant was directed to be demolished. Thereafter, a third suit was filed by the respondent (suit no. 112/2003) seeking permanent and mandatory injunction, as under:-

"I) a decree for mandatory injunction ordering the defendant, his relatives, servants, employees and agents to withdraw completely from Sujan Singh Park, New Delhi;

(II) a decree for mandatory injunction directing the defendant, his servants, relatives, employees and agents to remove sign boards, A/C sheets, fencing and other temporary unauthorised structures put up by him in Sujan Singh Park, New Delhi,

III) a decree for perpetual injunction restraining the defendant, his servants, employees and agents from entering and /or stepping into any part of Sujan Singh Park, New Delhi".

4. The plaint had inter alia averred as under:-

"12. That as a result of dismissal of Suit No.1415/2000-93 (Old number 374 of 95, 434/94 and 694/93) bottom has been completely knocked out of the false claim of the plaintiff on the basis of the alleged Deed of Daan and a judicial finding has been given by Shri Narinder Kumar, Civil Judge, Delhi that the defendant is an encroacher. After 15.7.2002,the defendant has not even the slightest right, title or interest in the said piece of land measuring 165' x 111' or any other part of Sujan Singh Park. As a result the defendant is bound and liable to withdraw completely from the said Sujan Singh Park, along with his wife and children. He is also bound to remove the sign boards, A/C sheets, fencing, and other temporary unauthorised structures put up by him".

5. On 23.04.2011, the learned Trial Court decreed the suit in favour of the respondent and held as under:

"... 16. RELIEF:

In view of my findings given on issues No. l, 2 and 3, plaintiff is entitled to partial relief and the suit is decreed and a decree for mandatory injunction is passed in favour of the plaintiff and against the defendant and defendant, his agents, employees are directed to withdraw from portion measuring 165 x111 feet in Sujan Singh Park which the defendant has claimed to be the owner on the basis of daan deed in his suit No.649/93. Defendant is further directed to remove his signboard, fencing, any other temporary structure put on the piece of land measuring 165 x 111 feet in Sujan Singh Park. Defendant is also perpetually restrained from entering and stepping into this area of 165 x 111 feet in Sujan Singh Park. No order as to costs. Decree sheet be prepared accordingly. File be consigned to Record Room."

6. Aggrieved by the aforesaid order, the appell