Final Order 3

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF AASHISH GUPTA, DISTRICT JUDGE-01,
NORTH-EAST DISTRICT, KARKARDOOMA COURTS, DELHI
In the matter of
RCA DJ No. 4/26
CNR No. DLNE010000452026
1. IRFAN
S/O SH. JAMEEL AHMED
R/O H.NO. B-4/37, STREET NO.5,
NEAR SURYA MANDIR,
SHAHDARA, KABIR NAGAR,
DELHI-110094
2. MUINUDDIN
S/O SH. ISLAMUDDIN
R/O H.NO. E-268, GALI NO.8
SUBHASH VIHAR,
NORTH GHONDA
DELHI-110053
3. FAZALU RAHMAN
S/O SH. NIZAMUDDIN
Η.ΝΟ. Ε-20/10, GALI NO.7
SUBHASH VIHAR, NORTH GHONDA
DELHI-110053 ........ APPELLANTS
VERSUS
1. MUNICIPAL CORPORATION OF DELHI
SHAHDARA NORTH ZONE
ZONAL OFFICE BUILDING
KESHAV CHOWK SHAHDARA
DELHI-110032
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2. THE EXECUTIVE ENGINEER (BLDG.)
SHAHDARA NORTH ZONE
ZONAL OFFICE BUILDING
KESHAV CHOWK SHAHDARA
DELHI-110032
3. THE ASSISTANT ENGINEER (BLDG.)
SHAHDARA NORTH ZONE
ZONAL OFFICE BUILDING
KESHAV CHOWK SHAHDARA
DELHI-110032
4. THE JUNIOR ENGINEER (BLDG.)
SHAHDARA NORTH ZONE
ZONAL OFFICE BUILDING
KESHAV CHOWK SHAHDARA
DELHI-110032
5. DEPUTY COMMISSIONER OF POLICE
NORTH-EAST DISTRICT
SEELAMPUR, DELHI-110053
6. THE S.H.O.
P.S. BHAJANPURA
NORTH-EAST DISTRICT
BHAJANPURA, DELHI-110053
7. THE BEAT OFFICER
P.S. BHAJANPURA BEAT
NORTH-EAST DISTRICT
BHAJANPURA, DELHI-110053
8.THE BSES YAMUNA POWER LTD.
SHAKTI KIRAN BUILDING
KARKARDOOMA
DELHI-110032 ….. RESPONDENTS
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Date of institution : 06.01.2026
Reserved on : 09.02.2026
Date of Decision : 09.02.2026
JUDGMENT
1. The present first appeal impugns the judgment and decree dated
28.11.2025 passed in Civ Suit No. 528/25 (hereinafter referred as
the ‘impugned judgment/decree’) whereby the Ld. Trial Court has
rejected the plaint U/O VII Rule 11 CPC.
2. I propose to dispose off this appeal
in limine. Parties shall be
referred by their rank before the Trial Court for convenience.
3. Three plaintiffs (who are appellants herein) had sued MCD/D-1,
its officers (D-2 to D-4), police authorities (D-5 to D-7) and
BSES (D-8) for a decree of mandatory and permanent injunction.
4. P-1 claimed that he is the owner of 126 sq yards of land bearing
property No. E-59, Gali No. 8/5, Block-E, Subhash Vihar
(Subhash Mohalla), Ghonda, Yamuna Vihar, Delhi and some
goons have taken possession of his land and with connivance of
the defendants, illegal construction is going on at the said
property (hereinafter referred to as 'suit property').
5. As per plaintiff, the said property was booked by MCD in 2024
and despite this, some goons are carrying out construction at the
property. He wants the said illegal construction to be demolished;
property be sealed and defendants be directed to stop any future
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illegal construction. He wants an injunction against BSES/D-8
restraining them from installing any electricity connection at the
property.
6. P-2 and P-3 are neighbours living in the locality and claimed that
due to the illegal construction, their easementary rights stand
violated. The Ld. Trial Court has rejected the plaint and the
reasons thereof are contained in para 3 to 8 of the impugned order
which reads as under:-
3. The plaintiff failed to show any document in his favour
regarding his ownership of suit property. The plaintiff was
specifically asked to show the document of his ownership, to
which plaintiff stated that the suit property was orally gifted to
him by his owner and there is no record of it.
4. Perusal of the plaint and the memo of parties reveals that
plaintiff is not residing at the instant neighbourhood i.e.
immediately adjacent to any wall of suit property where the suit
property is situated. Plaintiff has no personal interest in the suit
property. Plaintiff has not made any averment in the plaint with
regard to any infringement of his personal right by the
defendants or the infringment of any easementary right of
plaintiff that how his easementary right in form of light, air or
water is getting disturbed. The plaintiff has not mentioned that
his property or any of his legal right is going to be adversely
effected by the alleged illegal construction. Thus, the plaintiff
has no personal interest in the suit property.
5. In view of averments made in the plaint that plaintiff has
claimed himself to be owner of the property, the court is not
inclined to grant any permission/leave to plaintiff u/s 91 of
CPC.
6. Since the plaintiff has no personal interest in the suit
property, the present suit is barred under the provisions of
Section 41 (j) of the Specific Relief Act. More over, the plaintiff
has no cause of action to file the present suit as no right of his
have been infringed. The present suit has been filed without any
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locus. A plaint without a cause of action and without locus is
also liable to be rejected under Order 7 Rule 11 CPC.
7. In the judgment titled as Rajinder Motwani vs. MCD RSA
No.243/17 dated 16.10.2017, the Hon'ble Delhi High Court in
para no. 8 held as under :
“an illegal construction in itself does not give any legal
right to a neighbour. An illegal construction always no
doubt gives locus standi to the local municipal authorities
to seek removal of the illegal construction, but a right of a
neighbor only arises if the legal rights of light and air or
any other legal right is affected by virtue of the illegal
construction of the neighbor. Legal right to light and air is
only in terms of section 15 of the Easement Act, 1882
which requires a cause of action to be laid out and proved
that right to light and air has been enjoyed for 20 years
and only on completion of 20 years there is right to
acquisition by prescription in the easementary rights. It is
relevant to note that even after acquisition of easemenatry
rights of prescription, yet, right to injunction for a
neighbor is not absolute and is covered by Section 33 of
the Easement Act which requires that disturbance to the
easementary rights must actually cause substantial damage
to a neighbor and the infraction materially diminishes the
value of the dominant heritage with the fact that there is
material interference in the physical comfort of the
neighbor of living in his own house or prevents the
neighbor from carrying on his accustomed business in the
dominant heritage/his own house. All these are factual
aspects and admittedly there is no cause of action which is
laid out in the plaint in terms of section 15 and 33 of the
Easement Act that right to easement of the
appellants/plaintiffs has become absolute as it has been
enjoyed for 20 years and that in fact after rights to
easement are acquired by prescription there is also a
substantial damage to the appellants/plaintiffs or there is
material interference in the physical comfort of the
appellants/plaintiffs or the appellants/plaintiffs being
prevented from carrying on his accustomed business in
their own dominant heritage/own property.”
8. Thus, from the above judgment passed by the Hon'ble Delhi
High Court, it is clear that merely by virtue of being neighbour
or resident of locality, a person does not become entitled to file a
suit to restrain other from carrying illegal construction.
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7. I am in complete agreement with the reasoning given by the Ld.
Trial Court and there is no infirmity in the said order.
8. I may add that even though plaintiff claimed ownership of the suit
property on the basis of oral gift, this fact is not pleaded by him in
the plaint. Thus, the Ld. Trial Court has rightly concluded that
based on record, plaintiff does not show any personal interest in
the suit property. In fact, the names of earlier owners of the
property are not disclosed in the plaint by the plaintiff and thus,
the theory of oral gift made by one Muslim to other is only an
argument without any basis laid in the pleadings before the Trial
Court.
9. In fact, as per plaint, plaintiff admittedly is not in possession of
the suit property and surprisingly, he is not seeking possession of
the suit property and is only preferring to sue for injunction.
When this query was put to Counsel for plaintiffs, Counsel
claimed that P-1 is not aware about the fact that who has
trespassed/illegally occupied his property. In my humble opinion,
once plaintiff himself claims to be out of possession of the
property, U/S 41(h) of Specific Relief Act, 1963, the more
efficacious remedy would be for the plaintiff to sue for the relief
of possession with consequential injunctions. I cannot agree with
the Counsel for plaintiffs that P-1 can sustain a suit for injunction
simplicitor without praying for possession of the property in the
facts of this case. Once, plaintiff is out of possession of the
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property and has no document to support his ownership; and some
construction is being done on the suit property by a third party, it
is sufficient notice to P-1 that some other person is claiming title
over the property and thus, it is incumbent upon him to sue the
said person by way of a consolidated suit of declaration of title,
possession and injunction. In this regard, I may fruitfully rely
upon the judgment of Anathula Sudhakar vs P. Buchi Reddy
(Dead) by LRs & Others AIR 2008 SC 2033 which reads
as under:
“11.1) Where a plaintiff is in lawful or peaceful possession of a property and
such possession is interfered or threatened by the defendant, a suit for
an injunction simpliciter will lie. A person has a right to protect his
possession against any person who does not prove a better title by
seeking a prohibitory injunction. But a person in wrongful possession
is not entitled to an injunction against the rightful owner.
11.2)Where the title of the plaintiff is not disputed, but he is not in possession,
his remedy is to file a suit for possession and seek in addition, if
necessary, an injunction. A person out of possession, cannot seek the
relief of injunction simpliciter, without claiming the relief of possession.
11.3) Where the plaintiff is in possession, but his title to the property is in
dispute, or under a cloud, or where the defendant asserts title thereto and
there is also a threat of dispossession from defendant, the plaintiff will
have to sue for declaration of title and the consequential relief of
injunction. Where the title of plaintiff is under a cloud or in dispute and
he is not in possession or not able to establish possession, necessarily the
plaintiff will have to file a suit for declaration, possession and injunction.
12. We may however clarify that a prayer for declaration will be necessary
only if the denial of title by the defendant or challenge to plaintiff's title
raises a cloud on the title of plaintiff to the property. A cloud is said to
raise over a person's title, when some apparent defect in his title to a
property, or when some prima facie right of a third party over it, is made
out or shown. An action for declaration, is the remedy to remove the
cloud on the title to the property. On the other hand, where the plaintiff
has clear title supported by documents, if a trespasser without any claim
to title or an interloper without any apparent title, merely denies the
plaintiff's title, it does not amount to raising a cloud over the title of the
plaintiff and it will not be necessary for the plaintiff to sue for declaration
and a suit for injunction may be sufficient. Where the plaintiff, believing
that defendant is only a trespasser or a wrongful claimant without title,
files a mere suit for injunction, and in such a suit, the defendant discloses
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in his defence the details of the right or title claimed by him, which raises
a serious dispute or cloud over plaintiff's title, then there is a need for the
plaintiff, to amend the plaint and convert the suit into one for declaration.
Alternatively, he may withdraw the suit for bare injunction, with
permission of the court to file a comprehensive suit for declaration and
injunction. He may file the suit for declaration with consequential relief,
even after the suit for injunction is dismissed, where the suit raised only
the issue of possession and not any issue of title.
13. In a suit for permanent injunction to restrain the defendant from
interfering with plaintiff's possession, the plaintiff will have to establish
that as on the date of the suit he was in lawful possession of the suit
property and defendant tried to interfere or disturb such lawful
possession. Where the property is a building or building with appurtenant
land, there may not be much difficulty in establishing possession. The
plaintiff may prove physical or lawful possession, either of himself or by
him through his family members or agents or lessees/licensees. Even in
respect of a land without structures, as for example an agricultural land,
possession may be established with reference to the actual use and
cultivation. The question of title is not in issue in such a suit, though it
may arise incidentally or collaterally.
14. But what if the property is a vacant site, which is not physically
possessed, used or enjoyed? In such cases the principle is that possession
follows title. If two persons claim to be in possession of a vacant site, one
who is able to establish title thereto will be considered to be in
possession, as against the person who is not able to establish title. This
means that even though a suit relating to a vacant site is for a mere
injunction and the issue is one of possession, it will be necessary to
examine and determine the title as a prelude for deciding the de jure
possession. In such a situation, where the title is clear and simple, the
court may venture a decision on the issue of title, so as to decide the
question of de jure possession even though the suit is for a mere
injunction. But where the issue of title involves complicated or complex
questions of fact and law, or where court feels that parties had not
proceeded on the basis that title was at issue, the court should not decide
the issue of title in a suit for injunction. The proper course is to relegate
the plaintiff to the remedy of a full-fledged suit for declaration and
consequential reliefs.
17. To summarize, the position in regard to suits for prohibitory injunction
relating to immovable property, is as under :
(a) Where a cloud is raised over plaintiff's title and he does not have
possession, a suit for declaration and possession, with or without a
consequential injunction, is the remedy. Where the plaintiff's title is not in
dispute or under a cloud, but he is out of possession, he has to sue for
possession with a consequential injunction. Where there is merely an
interference with plaintiff's lawful possession or threat of dispossession,
it is sufficient to sue for an injunction simpliciter.
(b) As a suit for injunction simpliciter is concerned only with possession,
normally the issue of title will not be directly and substantially in issue.
The prayer for injunction will be decided with reference to the finding on
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possession. But in cases where de jure possession has to be established
on the basis of title to the property, as in the case of vacant sites, the issue
of title may directly and substantially arise for consideration, as without a
finding thereon, it will not be possible to decide the issue of possession.
(c) But a finding on title cannot be recorded in a suit for injunction, unless
there are necessary pleadings and appropriate issue regarding title [either
specific, or implied as noticed in Annaimuthu Thevar (supra)]. Where the
averments regarding title are absent in a plaint and where there is no
issue relating to title, the court will not investigate or examine or render a
finding on a question of title, in a suit for injunction. Even where there
are necessary pleadings and issue, if the matter involves complicated
questions of fact and law relating to title, the court will relegate the
parties to the remedy by way of comprehensive suit for declaration of
title, instead of deciding the issue in a suit for mere injunction.
(d) Where there are necessary pleadings regarding title, and appropriate issue
relating to title on which parties lead evidence, if the matter involved is
simple and straight-forward, the court may decide upon the issue
regarding title, even in a suit for injunction. But such cases, are the
exception to the normal rule that question of title will not be decided in
suits for injunction.
But persons having clear title and possession suing for injunction, should
not be driven to the costlier and more cumbersome remedy of a suit for
declaration, merely because some meddler vexatiously or wrongfully
makes a claim or tries to encroach upon his property. The court should
use its discretion carefully to identify cases where it will enquire into title
and cases where it will refer to plaintiff to a more comprehensive
declaratory suit, depending upon the facts of the case.”
(emphasis supplied)
10.With respect to other reasons given by the Ld. Trial Court, I am in
complete agreement with the same. P-2 and P-3 are not instant
neighbours of the suit property and thus, the Ld. Trial Court has
rightly relied upon the ratio of 'Rajinder Motwani' case in para 7
of the judgment.
11.Since I am in agreement with the said reasons, I need not burden
this judgment by reiterating the same reason.
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12.Thus, in my humble opinion, as far as P-1 is concerned, the plaint
is barred by law and was liable to be rejected U/O VII Rule 11 (d)
CPC. Again, as far as P-2 and P-3 are concerned, there is non-
disclosure of cause of action by the said plaintiffs in their favour
and thus, the plaint was liable to be rejected U/O VII Rule 11(c)
CPC.
13.In view of the above, in my humble opinion, there is no infirmity
in the judgment passed by the Ld. Trial court which calls for any
interference by this court. Accordingly, the judgment dated
28.11.2025 is upheld.
14.Let a decree sheet be prepared.
15.Let copy of the judgment passed in appeal along with decree-
sheet be sent to Ld. Trial Court.
Announced in the Aashish Gupta
open Court on 09.02.2026 District Judge-01, North-East District,
Karkardooma Courts, Delhi
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