RSA 39/2022

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$~75

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IN THE HIGH COURT OF DELHI AT NEW DELHI

+

RSA 39/2022 & CM APPL. 17444/2022, CM APPL.

17445/2022

JANG BAHADUR & ANR.

..... Appellants

Through:

Mr. M Qayam-Ud-Din, Adv.

versus

YASH PAL & ANR.

..... Respondents

Through:

Mr. Mukesh Gupta, Standing

Counsel for North MCD with Mr. Raghav

Gupta, Adv. for R-2

CORAM:

HON'BLE MR. JUSTICE C. HARI SHANKAR

J U D G M E N T (ORAL)

%

07.04.2022

1.

This appeal under Section 100 of the Code of Civil Procedure,

1908 (CPC), assails the order dated 22^nd November, 2021, passed by

the learned Additional District Judge-03 (West) (“the learned ADJ”),

Tis Hazari, in an appeal against judgment and decree dated 11^th April,

2018 passed by the learned Senior Civil Judge (“the learned SCJ”) in

Suit 12450/2016.

2.

A brief conspectus of the facts may be noted.

3.

The appellants Jang Bahadur and Jitender were the appellants

before the learned ADJ. For the sake of convenience, the parties

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001463

RSA 39/2022

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would be collectively referred to by name.

4.

Yash Pal, the plaintiff before the learned SCJ in CS

12450/2016, and the Respondent 1 before this Court, claimed to have

succeeded to ownership of a property situated at A-3/35, Moti Nagar,

New Delhi, under a registered Conveyance Deed dated 28^th January,

1967, from the Ministry of Rehabilitation. According to the assertions

in the plaint in CS 12450/2016, vide the said Conveyance Deed, the

aforesaid property was conveyed by the Ministry of Rehabilitation to

Moti Ram, the father of Yash Pal. Moti Ram having expired on 3^rd

September, 1990, Yash Pal, as one of the legal heirs of Moti Ram,

claimed to be a co-owner in the aforesaid property (hereinafter “the

suit property”).

5.

According to the assertions in the plaint, Jang Bahadur and

Mukund Lal, the father of Jitender, were illegally vending fruits and

vegetables on the pavement near the suit property of Yash Pal.

6.

Treating these activities as encroachments, the MCD

(Respondent 3) removed Mukund Lal and Jang Bahadur from the

pavement and discontinued their activities. Thereupon, it is alleged in

the plaint, Mukund Lal relocated his activities to an open area near the

suit property of Yash Pal.

7.

Mukund Lal, thereafter, filed a suit against Yash Pal, claiming

to be a tenant of Yash Pal and seeking to restrain Yash Pal from

dispossessing him from the pavement from which he was vending.

This is a digitally signed Judgement.

NEUTRAL CITATION NO: 2022/DHC/001463

RSA 39/2022

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Yash Pal, in his written statement in response to the suit, clearly stated

that the pavement over which Mukund Lal was seeking relief was not

his property, but Municipal land and that, by way of the suit, Mukund

Lal was using Yash Pal as a stooge to carry out unauthorised activities

on land belonging to the MCD.

8.

The application for stay under Order XXXIX Rules 1 and 2

CPC, filed by Mukund Lal with his suit, was rejected by the learned

Civil Judge by order dated 13^th September, 2004, observing that the

land on which Mukund Lal was carrying out his activities was, in fact,

Municipal land. Mukund Lal appealed but, during the pendency of the

appeal, Mukund Lal expired and no efforts were made to implead his

legal heirs. The appeal, thus, abated.

9.

The plaint in CS12450/2016 further averred that, consequent on

the demise of Mukund Lal, Jang Bahadur started selling fruits and

vegetables, on the land earlier being encroached by Mukund Lal,

which was adjoining the wall of the plaintiff’s property, thereby

perpetrating the encroachment.

10.

Yash Pal alleged that the activities of Jang Bahadur were illegal

and unauthorised as the land on which he was vending belonged to the

North DMC. Besides, Yash Pal alleged that Jang Bahadur’s action

were resulting in nuisance, disturbing the peaceful enjoyment, by

Yash Pal, of th