RSA 110-2013

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Judgment Reserved on: 17.12.2021

Judgment Delivered on: 16.03.2022

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RSA 110/2013

SANT KIRPAL SINGH

..... Appellant

Through:

Ms.

Hemlata

Rawat

and

Mr.

Aayushmaan Vatsyayana, Advs.

versus

SOBHA SINGH AND SONS PVT. LTD.

..... Respondent

Through:

Mr. P. S. Bindra, Sr. Adv. with Mr.

Anand Singh, Mr. Bhuvneshwar Tyagi

and Ms. Monica Phartyal, Advs.

CORAM:

HON'BLE MR. JUSTICE NAJMI WAZIRI

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.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001099

RSA 110-2013

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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:-

any part of Sujan Singh Park, New Delhi”.

4.

The plaint had inter alia averred as under:-

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001099

RSA 110-2013

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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:

Record Room.”

6.

Aggrieved by the aforesaid order, the appellant filed an appeal before

the learned Additional District Judge bearing RCA No. 02/2012. The same

was dismissed on 23.02.2013. The respondent filed the present Regular

Second Appeal before this court impugning the said order dated 23.02.2013.

It was disposed-off on 21.02.2014, with the direction that appellant will not

be evicted from the suit premises till 29.02.2019, upon him furnishing an

undertaking. The appellant filed Special Leave Petition (C) No. 8745/2014

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001099

RSA 110-2013

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impugning the said order of this court. The impugned order was set aside on

07.01.2015, and the case was remanded back to this court, to be decided on

merits.

7.

Substantial questions of law, for adjudication in this appeal were

framed as:

i. Whether the suit of the respondent is barred under Order II Rule

2 CPC as the respondent had earlier, through a suit, sought

eviction of the appellant from the suit property.

ii. Whether a decree of eviction could be passed in a suit for

mandatory injunction.

iii. Whether the suit of the respondent is barred by the law of

limitation.

iv. Whether the document, Ex.P1, can at all be treated as a "Will"

and would it be admissible in evidence for the purposes of

claiming possession in the suit