Shankar Lal v. Jai Pal & Anr

V.K. SHALI, J AUGUST 29, 2013/dm

* IN THE HIGH COURT OF DELHI AT NEW DELHI + RSA 119/2013 Decided on : 29th August, 2013 SHANKAR LAL ..... Appellant Through: Mr.P.Chakraborty, Advocate. versus JAI PAL & ANR. ..... Respondents Through: Mr.Jagat Rana, Advocate for R-2/Delhi Urban Shelter Improvement Board. CORAM: HON'BLE MR. JUSTICE V.K. SHALI V.K. SHALI(ORAL) % 1. This is a regular second appeal filed by the appellant against the judgment dated 09.05.2013 passed by the learned ADJ dismissing the appeal and upholding the judgment and the decree dated 13.07.2005 passed by the trial court in a suit filed by one Sh. Jai Pal. 2. The learned counsel for the appellant has stated that he has raised substantial questions of law in the appeal, which need consideration by this court. 3. I have heard the learned counsel for the parties. 4. Before dealing with the submissions made by the learned counsel for the appellant, it will be worthwhile to give a brief background of the case. R-1/Jai Pal originally filed a Suit No.429/2008 (renumbered later on and given the new no.1036/1991) against Mr.Shankar Lal and Mr.Abdul Razaq. The case which was set up by him was that he had been allotted a parcel of land measuring 25 square yards bearing No.J-III/387, J.J.Colony, Wazirpur, Delhi by DDA vide allotment letter dated 08.03.1978. He took possession and raised a temporary construction. On 19.11.1978 when he came to the suit premises, he was sought to be forcibly dis-possessed. This forcible dispossession was resisted by Mr.Jai Pal and he lodged a report with the police. He also tried to protect his possession by filing the suit for permanent injunction against the present appellant Mr.Shankar Lal and one Mr.Abdul Razaq. 5. The present appellant/ Mr.Shankar Lal and Mr.Abdul Razaq (defendants in the suit) were served. Both the defendants filed their common written statement. After filing of the common written statement, Mr.Abdul Razaq absented himself and he was proceeded ex parte. However, so far as the present appellant, defendant No.1 in the suit was concerned, he continued to appear. The defence taken by the appellant and Mr.Abdul Razaq in the written statement was that Mr.Jai Pal's allotment had, in fact, been cancelled and he was not in possession. It was also pointed out that the said parcel of land was initially allotted to one Sh.Puran, who happened to be the brother in law of the present appellant. On the basis of these facts, it was contended that Mr.Jai Pal was not in possession and consequently he was not entitled to a decree of permanent injunction. On the pleadings of the parties, the following issues were framed and evidence adduced. "1. Whether the suit is maintainable as the plaintiff has no locus standi to file the suit? OPD 2. Whether the plaintiff is entitled to the relief claimed? 3. Relief." 6. The learned trial court returned a finding to the effect that no doubt the said parcel of land was originally allotted to one Mr.Puran, however, it was cancelled and thereafter it was allotted to Mr.Jai Pal. It was also observed by the trial court that Mr.Jai Pal's allotment was admittedly cancelled by the DDA, but as the possession was not taken, it continued with him and accordingly he was entitled to protect his possession qua the defendants namely the present appellant/ Mr.Shankar Lal and Mr.Abdul Razaq. This suit was decreed on 13.07.2005. 7. The present appellant, feeling aggrieved by the said judgment and decree, preferred the first appeal bearing No. RCA 37/2005 titled Shankar Lal Versus Jai Pal and Anr. 8. It may also be pertinent to mention here that Mr.Jai Pal had filed an independent suit seeking declaration to the effect that the cancellation letter dated 03.02.1997, which was purportedly issued by the allotting authority of the parcel of land in question namely DDA, (presently stands replaced by the Delhi Urban Improvement Development Board being the successor body) be declared null and void. 9. It may also be worthwhile to mention here that originally the