Narender Kumar and Another vs Municipal Corporation of Delhi

K.S. GUPTA, J.—This order will govern the disposal of is 6857/95 filed under order XXXIX Rules 1 & 2 read with Section 151 CPC by the plaintiff.

Suit was filed, inter-alia alleging that the plaintiffs are the recorded owners in possession of 3000 square yards of land comprised in Khasra No. 489/55/2 admeasuring 5 bighas and 18 bids was situated within the revenue estate of village Sheikh Sarai and bearing of Municipal No. 45, Malviya Nagar Corner, New Delhi. Part of the built up portion is being used for running business while the remaining for residence. Measurement of the plot is 180ft. x 102 ft. Suit property is situated on the road which leads from Panchsheel Park to Malviya Nagar, Sheikh Sarai and Saket and the total width of the road is 80 ft. It is alleged that opposite to the suit property Archaeological Survey of India has encroached upon a portion of the road thereby reducing the width of the road by about 15 ft. Defendant is trying to make up for 15 ft. road illegally encroached upon by Archaeological Survey of India by claiming that the plaintiffs are occupying a part of the road. It was prayed that by passing a decree of permanent injunction the defendant and its employees be restrained from digging up any part of the suit property.

In the said is 6857/95 by the order dated 4th July, 1995 parties were directed to maintain status-quo as of date till the disposal thereof.

Defendant contested the suit and also the application by filing written statement and reply wherein identical pleas have been raised. It is alleged that the plaintiffs have stated that the area of the suit land in 3000 sq. yds. and the dimension of the plot is 180 ft. x 102 ft. which comes to 2040 sq yds. Moreover, are occupied by plaintiffs at the site as given by the Local Commissioner in his report is neither 3000 sq. yds. nor 2040 sq. yds. It is stated that according to the layout plan approval by DDA in the year 1980, the width of the road in front the suit property is 80 ft as has been shown to the Local Commissioner during inspection, 80 ft. road is in existence in all parts adjoining the suit property. Wall of the Archaeological Department is very old and is in line with the other properties of Panchsheel which is an approved colony. plaintiffs have encroached upon the municipal land by about 15 to 20 ft. and the status-quo order is liable to be vacated.

I have heard the learned counsel for both the parties.

Admittedly, on the joint request made by the parties'' counsel, by the order dated 4th July, 1995, Sh. Deepak Khadaria, Advocate, was appointed as Local Commissioner to visit the disputed site, take measurements of the property in possession of the plaintiffs, and report as to whether there was any encroachment by the occupant of the property located opposite to the suit property. Report of the Local Commissioner dated 6th July, 1995 Along with the site plan are placed on the file against which no objections have been filed by the plaintiff. In para No. 7 of the report it is stated that the area of the plaintiffs'' property is in uneven rectangular shape measuring 100 ft. on one side and 118 ft. on the otherside in width. In para 10 it is further stated that opposite to the plaintiffs'' property and across the road boundary wall of the mourning. of the Archaeological Survey of India exists. Boundary wall seems to be very old construction and is about 4 ft. high. The total width of the road from the boundary wall facing the road, to the plaintiffs'' property is 68 ft. It will not be out of place to state that by another order dated 24th January, 1996 an Engineer of the defendant was permitted to visit the suit property and take measurements and prepare a map after giving notice to the plaintiffs. Pursuant to that order the defendant has filed the affidavit of Suraj Bhan, AE(Project), South Zone Along with the drawing annexure R-2. In para No. 5 of the affidavit, it is averred that on 7th February, 1996 survey was conducted and the total area in possession of the plaintiffs including the encroachment area was found to be 1915.93 sq. yds., which does not tally with the area stated in the plaint. Area encroached upon is 200.15 sq. yds. In para No.8. It is further stated that at the behest of Panchsheela Co-operative House Building Society, layout plan was sanctioned by the defendant in the year 1967 and as per the layout plan width of the road in front of the plaintiff property is 80 ft. and 80 ft. road is in existence in all the parts adjoining the plaintiffs'' property.

It was not disputed before me that as per the sanctioned layout plan width of the road is 80 ft. and at the disputed site it stands reduced to 68 ft. Case taken up by the plaintiff is that Archaeological Survey of India has encroached upon a portion of the road opposite to the plaintiffs'' property thereby reducing the width of the road by about 15 ft. which assertion has been emphatically denied by the defendant. As stated earlier boundary wall of the monument of the Archaeological Survey of India has been found to be very old by the Local Commissioner. From the site plan filed Along with Local Commissioner''s report and the drawing annexure R-2 filed Along with the affidavit of said Suraj Bhan, AE (Project) it is manifest that the boundary wall of the monument facing the road is in line with the other properties on that side and further that 80 ft. road is in existence in all the parts adjoining the plaintiffs'' property. Therefore, the contention of the plaintiffs that the wall of the monument of the Archaeological Department opposite the suit property extends inside the road prima facie seems to be untrue. Aforesaid site plan and the drawing further indicate that it is the suit property, a portion whereof extends inside the road. Extent of that encroachment as per the aforementioned affidavit of Suraj Bhan, AE (Project) is around 200.15 sq. yds. During the course of arguments much emphasis was placed on behalf of the plaintiffs on the extracts of khasra girdawaries filed by the plaintiffs but hose are of little assistant as they relate to land of khasra No. 489/55 instead of 489/55/2 as noted in the plaint. Dimension thereto also does not tally with the land occupied by the plaintiffs. From the aforesaid discussion, it must follow that the plaintiffs have miserably failed to prima facie make out a case for grant of the ad interim injunction sought for. Instead of the plaintiffs it is the defendant who is suffering irreparable injury because of stoppage of work of laying water drain in front of the suit property due to the status-quo order. Obviously, balance of convenience took does not lie in plaintiffs favour. Status-quo order made on 4th July, 1995 thus deserves to be vacated.

For the foregoing discussion, is is dismissed and status-quo dated 4th July, 1995 is vacated.