Second appeal against reversal of a permanent injunction decree protecting possession of jhuggi No.D-2. The High Court held the plaint itself admitted part occupation by the defendant and no relief of possession was sought, making an injunction decree legally defective; no substantial question of law arose.
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IN THE HIGH COURT OF DELHI AT NEW DELHI
SHYAMO DEVI .....Appellant
Through: Mr. Rajeev Gupta, Mr. Pijush Kanti Biswan and Mr. Sandeep Yadav, Advs.
versus
ANISA BEGUM & ORS. .....Respondents Through: Mr. Rajat Aneja and Mr. Jatin Tyagi, Advs.
CORAM: HON’BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV O R D E R % 18.12.2024
This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/12/2024 at 12:05:59
statement filed by the respondent-defendant, there is no specific denial of the appellant-plaintiff's possession of jhuggi No.D-2. Counsel emphasizes that the appellant-plaintiff's entire case pertains to jhuggi No.D-2, whereas the respondent-defendant’s written statement refers to jhuggi No.D-20.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/12/2024 at 12:05:59
paragraphs 4 and 5 of the plaint, the appellant-plaintiff has stated that the respondent-defendant has illegally occupied a portion of the appellantplaintiff’s jhuggi. According to the appellant-plaintiff’s own case, the said jhuggi, claimed to be jhuggi No.D-2, was in their possession. The appellantplaintiff further alleged that the respondent-defendant had threatened to forcibly dispossess them if they continued to gather people or create any commotion. In addition to the averments made in paragraphs 4 and 5 of the plaint, it has been further stated that the appellant-plaintiff raised a hue and cry, which resulted in some local residents gathering at the spot. These individuals attempted to reason with the respondent-defendant, pointing out that they had illegally occupied a portion of jhuggi No.D-2 and urging the respondent-defendant to vacate it immediately. However, despite such intervention, the respondent-defendant refused to vacate the premises and allegedly disregarded the authority of the police or any other official intervention, further threatening to sell the occupied portion of jhuggi No.D2. It is evident from the plaint that the appellant-plaintiff asserted that a portion of jhuggi No.D-2 was illegally occupied by the respondentdefendant. However, when the prayer clause in the civil suit is examined, it is clear that the appellant-plaintiff sought only a decree of permanent injunction and did not seek any other relief, including possession of the suit property.
1 (2007) 14 SCC 200
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The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 30/12/2024 at 12:05:59
Consequently, the relief sought by the appellant-plaintiff suffers from a fundamental legal defect.
“17. Learned Trial Court has put its reliance on Ex.PW1/2 i.e. photocopy of electoral card. During cross-examination dated 03.02.2005, the specific objections were raised by ld. counsel for defendant that none of the document mentioned in the affidavit of the plaintiff is lying on record except the site plan and in crossexamination of PW1 on further date, the Court has made clear to the parties that putting exhibit on the document is merely for the purpose of identification, admissibility and proof of document shall be decided at the time of final arguments only. The plaintiff has not brought the original electoral card on record and just brought the photocopy of the same on record as Ex.PW1/2, the affidavit Ex.P-1 and document Ex.PW1/2 do not find mention that original documents have been placed on record or has been seen and returned by the Court at the time of evidence. The Court also mentioned Mark A i.e. photocopy of one ration card purported to be in the name of plaintiff and copy of birth certificate of daughter of plaintiff as Ex.PW1/8 at the time of appreciation of evidence while deciding the issue no.2. It is settled principle of law that the parties have to bring the best available evidence in order to prove its case. The plaintiff has not called any official/record from department of Food and Civil Supplies to prove the Ex.PW1/2 or Mark A which could have been taken into consideration for ascertaining the possession of the plaintiff over suit property as at the time of issuing the documents like electoral card and ration card, the Government officials visit at the spot to ascertain the residence of person so that proper facilities may be provided to the actual residents of locality and also to make the proper future arrangements for conducting elections or to fulfill the need of civil supplies to the citizens. The plaintiff neither produced the original documents of Ex.PW1/2 or Mark A nor called any evidence from any Government office in order to prove both these documents. Hence, learned Trial Court not appreciated the evidence in terms of settled law and accepted the averment of plaintiff, qua possession of suit property, on the basis of the photocopy of documents which has no evidenciary value unless originals are proved on record.
18. At the time of framing of issues vide order dated 23.12.2002, the specific onus was casted upon the plaintiff to prove the issue no.2. The
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plaintiff cannot be allowed to take benefit of any shortcoming on the part of defendant for the purpose of getting the relief whereas it was solemn duty of the plaintiff to discharge her onus to prove the issue no.2 and in failure of discharging the onus, the plaintiff cannot be entitled for getting the relief prayed for. lt is the duty of party to bring the best available evidence to discharge its onus and there was no embargo for the plaintiff to produce the original documents at the time of evidence or to call/summon the relevant record from the Government office. Therefore, the plaintiff has miserably failed to discharge her onus to prove the issue no.2 and the view taken by learned Trial Court is based on the documents which has no evidenciary value.”
PURUSHAINDRA KUMAR KAURAV, J
DECEMBER 18, 2024/DPA
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2 issues framed by the court
Was the suit for permanent injunction maintainable without a prayer for possession when the plaint admitted illegal occupation of a portion by the defendant?
Did the First Appellate Court err in reversing the Trial Court's decree despite alleged absence of specific denial of possession?
Colour shows how this judgement treated each authority
Ramji Rai v. Jagdish MallahRelied on¶8
(2007) 14 SCC 200 · Who else cites this
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As recorded by the court registry
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