* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on: 27 March 2025 Judgment pronounced on: 30 April 2025 + FAO 97/2015 DESH DEEPAK ..... Appellant Through: Mr. Anurag Ahluwalia, Sr.

Adv. With Mr. Harshit Mahalwal, Adv.

versus MUNICIPAL CORPORATION OF DELHI &

ANR ..... Respondents Through: Mr. Chirag Madan, ASC for MCD with Mr. Rahul Agarwal & Mr. Ronit Bose. Advs.

CORAM:

HON'BLE MR. JUSTICE DHARMESH SHARMA

J U D G M E N T

1. The appellant has filed the present appeal under Section 107 read with Order XLI Rule 1(u) of the Code of Civil Procedure, 1908, [CPC] impugning orders dated 15.01.2015 and 04.02.20215 passed by the learned Additional District Judge-02 (Central), Tis Hazari Courts, Delhi, [Learned ADJ], in Regular Civil Appeal No. 160/2013, whereby the learned ADJ remanded back the Regular Civil Appeal to the learned Trial Court with the direction to give specific finding on the existence or non-existence of Plot No. B-373, Majlis Park, Delhi³ FACTUAL BACKGROUND :

2. Briefly stated, the facts necessary for adjudication of the present controversy are that on 31.10.1984, the premises in question were Signature Not Verified Digitally Signed By:PRAMFOADO 97/2015 Page 1 of 18 transferred by Sh. Gurbux Rai to respondent no. 2, Ms. Sunita Devi, by way of an Agreement to Sell and a Registered Will. Thereafter, the said premises were transferred by Ms. Sunita Devi to the appellant through an Agreement to Sell and General Power of Attorney.

Subsequently, on 21.07.1998.

3. Pursuant thereto, the appellant/plaintiff applied for mutation of the said premises vide letter dated 24.10.2000, which, as averred, was duly received and acknowledged by the office of the respondent No. 1/MCD at Civil Lines, along with the requisite documents under the Delhi Municipal Corporation Act, 1957, [DMC Act]. Despite submission of the mutation application and repeated visits by the appellant, no action was taken by the respondent No. 1/MCD. The appellant was, therefore, constrained to serve a legal notice dated 02.07.2004 upon the respondent No. 1/MCD.

4. On receiving no response from the respondent No. 1/MCD, the appellant instituted a civil suit for declaration and injunction titled Desh Deepak Tyagi v. Sunita Gupta & Anr, [Suit No. 791/2011/2004]. The transfer of the premises in question was reiterated by defendant No. 1/respondent No.

2/Ms. Sunita Devi in favour of the appellant in her written statement.

5. In so far as respondent No. 1/MCD is concerned, in its written statement it contended that the suit was not maintainable in view of Section 478 of the DMC Act, and further alleged that the appellant’s intent was to evade payment of lawful dues towards property tax. It

3 Premises in question Signature Not Verified Digitally Signed By:PRAMFOADO 97/2015 Page 2 of 18 was also asserted that the Civil Court lacked jurisdiction to entertain the matter.

6. Based on the pleadings of the parties, the following issues were framed:

“(i) Whether the plaintiff is the owner of the suit property?

OPP.

(ii) Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD.

(iii) Whether the suit is not maintainable under Sec. 478 of the DMC Act? OPD, (iv) Whether this court has no jurisdiction to entertain and decide the suit? OPD.

(v) Relief.”

7. It is pertinent to mention that respondent No. 1/MCD failed to lead evidence, and its right was closed vide order dated 20.07.2007. it is matter of record that during the proceedings, the respondent No. 1/MCD stated that "in case all dues are cleared, MCD has no difficulty in mutating the property," pursuant to which the appellant submitted the requisite documents and obtained acknowledgment. However, the respondent No. 1/MCD later filed a Status Report claiming the property was a thoroughfare and that, in absence of a registered sale deed, mutation could not be effected.

8. Pursuant to the conclusion of final arguments, the learned Trial Court was pleased to direct that a site plan of the premises i