CHAND BABU Vs. MUKHTIAR SINGH

JUDGEMENT

(1.) THE petitioner filed a suit for mandatory injunction claiming that his father Kamruddin was owner in possession of a plot comprising Khasra No.12/1/2 measuring 100 sq. yards situated in the area of Village Dundahera, Tehsil and District Gurgaon. He claims that the allotment was made to his father in implementation of a State scheme for allotment of small plots of land to backward classes of persons qualifying as weaker sections of society for their settlement on plots carved out from land owned by the Gram Panchayat of the village earmarked for common purposes of the village community. The petitioner belongs to the weaker sections of society. Kamruddin, the predecessor -in -interest died intestate. The plaintiff and proforma respondent No.2 Jamruddin, who are the brothers, allege they became the absolute owners of the disputed plot on the basis of natural inheritance. It is stated that first the father and then the plaintiff raised constructions over the plot presently consisting of 10 rooms and 5 shops in which they reside and collect rent from the shops. The named brother was impleaded as a proforma defendant for the reason that in the year 2004 he had shifted to village Dhauj in Faridabad District with intention to settle there. The suit was filed in 2009 against the contesting 1st defendant who is alleged to have been forcibly dispossessed the petitioner from the five shops with no right, title or interest in the suit property. He alleged that defendant No.1 is a powerful person belonging to the Ahir community which has a predominant presence in the village and are a big vote bank in the electrol college of the village gram panchayat.

(2.) THE present petition arises out of an order dated April 25, 2014 passed by the Civil Judge (Junior Division), Gurgaon on plaintiff's application under Order 18 Rules 1 and 2 preferred after the issues were framed in the suit on December 21, 2009. The petitioner filed the application on March 13, 2014 for grant of an opportunity to lead evidence by way of production of a neighbour to depose that defendant No.1 does not belong to the economically weaker section of society and, therefore, could not be a beneficiary of allotment of plots under the Haryana Government scheme. The issues were framed on December 21, 2009 and the trial Court found that the application filed after five years of framing of issues was filed highly belatedly. More strikingly, the trial Court records and holds and quite rightly so, that the new pleas taken in the application are totally alien to the pleadings in the suit and are worse still entirely a new story made out in the application which was not pleaded in the suit. A copy of the plaint has been filed as Annexure P -1 in which there is neither mention of any allotment letter in favour of Kamruddin nor is there any mention therein which reveals connection of the defendant No.1 with the entirely new case set up in the application. In fact these facts have been pleaded for the first time in para.4 of the present petition filed under article 227 of the Constitution. The Ahir story is no where mentioned in the application.

(3.) THAT apart, to my mind an application under Order 18 Rules 1 and 2 does not even lie or be maintainable which deserves consideration in this case. Needless to say that the application under Order 18 Rules 1 and 2 could at best be traced to the provisions of Order 18 Rule 17 -A which stands omitted from the CPC w.e.f. July 1, 2002 and if at all an application was made it could have at best been dealt with under Section 151 CPC. Even if the application is treated as one under Section 151 even then no relief is admissible to the petitioner for producing a neighbour to prove that defendant No.1, Mukhtiar Singh does not belong to weaker sections of society. The petitioner's evidence albeit stands closed by court order. It follows that when no relief can be granted to the petitioner on the misconceived application nothing remains to be answered by this court in the present petition. The order of the trial Court pre -eminently is a good one which deserves to be upheld as a reasonable view taken in exercise of jurisdiction.