Decided on March 01,2007



SWATANTER KUMAR, J. - (1.) Virender Gopal, plaintiff (appellant herein), filed a suit for mandatory injunction against the defendant-Corporation of Delhi to remove the roads, sewage lines, drainage and other things done on the suit property. This suit for injunction was founded on the averments that the plaintiff-appellant was the owner of the suit property to the extent of one-half share in the property bearing khasra numbers 775 to 796, 810, 813, 814, 817, 818, 2047 and 2062 in the revenue estate of Village Tihar, Delhi. It is alleged by the appellant that without giving any notice acquiring land in accordance with law and paying compensation to him, the Corporation took forcible possession of the land and started illegal construction of the above roads, sewage, drainage systems etc. The plaintiff-appellant had earlier filed a suit for injunction bearing no. 200/1976 which was stated to be pending at the time of filing of the subsequent suit bearing no. 103/1979. The plaintiff served a notice upon the Municipal authorities on 16.4.1979 for payment of damages to the extent of Rs.9000/- per month with interest, which request was not acceded to by the authorities. Compelled with these circumstances, the appellant-plaintiff filed the subsequent suit i.e. Suit No. 103/1979 for mandatory injunction against the defendant.
(2.) The suit was contested by the Corporation, who in the written statement, raised preliminary objections stating that the suit was barred under Sections 477 and 478 of the Delhi Municipal Corporation Act, 1957, the plaintiff had no locus standi to file the suit, the suit was not valued properly for the purposes of court fee and jurisdiction and suit for injunction, in any case was not maintainable and was hit by the provisions of Order 2 Rule 2 read with Section 10 of the Code of Civil Procedure. On merits it was stated that an area of 9.56 acres was under the Municipal Corporation of Delhi (for short 'MCD'). The roads, drainage systems and sewage had been in existence for a long period and to maintain them was the responsibility of the Corporation. It was denied that the plaintiff was the owner or had, in any way, a right over the suit land. Upon pleadings of the parties, vide order dated 28.5.1980, the learned trial court framed the following issues:- "1]. Whether the plaintiff is entitled to the injunction as prayed for" 2].Whether the suit is not maintainable as alleged in the written statement" OPD 3].Whether the suit has not been properly valued for the purposes of court fee and jurisdiction"OPD 4].Whether the suit is barred under Order 2 Rule 2 CPC" OPD 5].Relief."
(3.) The trial court formed the opinion that in the event issue no.2 was decided at the first instance and was answered against the plaintiff, no other issue would be required to be dealt with as the suit itself would not be maintainable. After detailed discussions, the Court held that that where the plaintiff is not in possession of suit property and he claims a declaration that he is the owner thereof, it would follow that he must claim further relief of possession, as well and in view of the Proviso to Section 34, a suit for mere declaration or for mere injunction cannot lie and that the suit for mandatory injunction, in any case, would not be tenable. Consequently, the issue was answered against the plaintiff in the suit and the suit was dismissed vide judgment and decree dated 27.2.1982. Aggrieved from this judgment and decree, the plaintiff-appellant filed the present appeal in the year 1982 and since then the appeal is pending before the Court.;

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