1 IN THE HIGH COURT OF DELHI AT NEW DELHI SUBJECT : SUIT FOR PERMANENT INJUNCTION CS(OS) No.774/2001 DATE OF DECISION : 22nd November, 2012 SHRI RAMESH CHAND AGGARWAL & ORS.... Plaintiffs Through: Mr. Sanjay Manchanda, Adv. for plaintiff no.1 Mr. P.S.Bindra with Ms. Shweta Priyadarshini for LRs of plaintiff nos. 2 & 3. versus MCD Through :... Defendant Ms. Mini Pushkarna, Adv. for D-1/MCD. Mr. Rahul Gupta with Mr.Shekhar Gupta, Adv. for D-2. Mr. Ravi Chhabra, Adv. for D-3. CORAM: HON BLE MR. JUSTICE VALMIKI J.MEHTA VALMIKI J. MEHTA, J (ORAL) 1. The subject suit has been filed by three plaintiffs claiming the following reliefs:- (A) Pass a decree for permanent prohibitory injunction restraining the Defendant from in any manner dispossessing the Plaintiffs from their respective plots bearing No.40, 41 and 42 in colony known as Kalindi Colony Village Kilokri, Delhi. (B) Pass a decree for cancellation of Defendant s letter dated 8th July, (C) Pass a decree for cancellation of Building over/taking over Certificate dated
2 (D) Pass a decree for cancellation of Defendant s Resolution dated (E) Pass a decree of declaration that the first two Plaintiffs are joint owners in possession, use and enjoyment of plots bearing Nos. 40 and 41, category III, Group A each admeasuring sq.yds. in Kalindi Colony, Village Kilokri, New Delhi and the third Plaintiff as the rightful owner in possession of plot No.42, in the same category and group admeasuring sq.yds. and are entitled to use, occupy, possess and enjoy the same without any obstruction and interference from the Defendant, and that the Defendant has not right, title or interest in any of the said three plots. (F) Pass such other or further relief(s) as this Hon ble Court deems fit and proper in the facts of the present case. 2. The suit essentially claims ownership rights in three plots bearing nos.40, 41 and 42, each measuring sq.yds. situated in Kalindi Colony, New Delhi. The plaintiffs claim to have purchased these plots from or through the original allottees of the plot and who with respect to the plot nos.40 to 42 were Sh.Suraj Bahadur Gupta, Smt. Raj Kumar and Smt. Mohini Devi respectively. With the original allottees, the defendant no.3/cooperative Society namely M/s. Swatantra Cooperative House Building Society Ltd. had entered into the sale deeds. The sale deeds are dated 7th October, 1965 and 13th October, The plaintiffs in different paragraphs of the plaint essentially set out the following averments for claiming the reliefs: i) Plaintiffs are the owners of the land as they have purchased the same from the original allottees, who were sold the land by the defendant no.3/society or from the successors-in-interest of the original allottees. ii) The plaintiffs are entitled to the ownership rights inasmuch as the defendant no.1/municipal Corporation of Delhi (MCD) merely by sanctioning a lay out plan under Section 313 of the Delhi Municipal Corporation Act, 1957 cannot become an owner of the plots, and the plots thus continued to be owned by defendant no.3/society and hence the plaintiffs/their predecessors to whom they were sold. iii) The open spaces/plots with the plaintiffs are not such which fall within any of the five resolutions of the MCD by which the lay out plan of the Kalindi Colony was originally approved or thereafter amended and therefore, for this additional reason the MCD can have no claim over the plots.
3 iv) The possession letter by which the defendant no.3/cooperative Society handed over the possession of the lands which are subject matter of the suit to the MCD is illegal and not binding upon the plaintiffs. 3. Before proceeding further, I must state that in the present case issues were framed on which read as under:- i) Whether the Predecessor in interest to the plaintiff and thereafter the plaintiff acquired absolute interest in the properties in suit? OPP ii) iii) Whether suit is within time? OPP Whether the land in respect of property in suit vested in MCD? OPD iv) Whether suit is barred in view of the provisions of Order 2 Rule 2 CPC? OPD v) Whether the MCD was put in possession of the suit property at any stage of time? If so, to what effect? OPD vi) Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP vii) Whether the plaintiffs are entitled to the declarations as prayed for in the suit? OPP. Relief. 4. The plaintiffs evidence is being recorded and at which stage the defendant no.3 filed IA No.920/2012 for dismissing the suit on the basis of judgment passed by a learned Single Judge of this Court in RSA No.243/2006 titled as D.V.Singh vs. Municipal Corporation of Delhi, and an SLP against which was said to be dismissed by the Supreme Court. It is alleged by the defendant no.3 in IA No.920/2012 that the facts of the present case are fully covered by the said judgment dated in RSA No.243/2006 and therefore the suit was liable to be dismissed. On the basis of the judgment of a learned Single Judge of this Court in D.V.Singh s (supra) case it is essentially canvassed that once the plots of the plaintiffs are not part of the lay out plan and are only vacant spaces, to such plots plaintiffs cannot have ownership rights. This is argued to be more so because Clause 7 of the sale deeds entered into between the defendant no.3/cooperative Society and the predecessors-in-interest of the plaintiffs
4 specifically states and provides that in case the plots of the plaintiffs/their predecessors-in-interest are not approved and hence do not fall within the lay out plan of Kalindi Colony as approved by the MCD, then, the plaintiffs would have no rights to such plots. It is also argued that actually the judgment in the case of D.V.Singh s (supra) case relies upon the judgment of the Hon ble Supreme Court in Civil Appeal No.4246/2000 decided on and which judgment with respect to similarly situated plots as claimed by the plaintiffs, held that with respect to those plots which do not fall within a sanctioned lay out plan under Section 313 of the Delhi Municipal Corporation Act, 1957, no developmental activities or constructions on such plots are permissible inasmuch as such activities would be illegal as the plots cannot be owned by such persons. 5. During the course of hearing, I put it to counsel for the plaintiffs that though the application may not have been properly titled/worded, in essence, the defendant no.3/cooperative Society really claims for dismissal of the suit under Order 12 Rule 6 CPC on the basis of the existing/admitted facts as appearing in the pleadings or otherwise, and which expressions are found under Order 12 Rule 6 CPC. The defendants also relied upon the provision of Section 13 of the Evidence Act as also judgment of the Supreme Court in Civil Appeal No. 4246/2000 to argue that though the judgment may not be between two parties of the suit, however, if any judgment decides on the ownership right for an immovable property such judgment is a relevant fact under Section 13 of the Evidence Act. 6. Counsel for the plaintiff in response argued that in the present case since the evidence is going on, this Court should not consider the application being IA No.920/2012 and also, the suit ought not to be disposed of under Order 12 Rule 6 CPC. Counsel for the plaintiffs has also argued in support of the averments which have been made in the plaint. 7. In my opinion, the provision of Order 12 Rule 6 CPC specifically exists in the statute book to ensure that where admissions appear in pleadings or exist otherwise, and which admissions are sufficient for deciding the suit, then, it is not necessary that a defendant must face the trial and tribulations of a complete trial in the suit and only whereafter it can be urged by the plaintiffs that the suit should be decided. The Supreme Court has repeatedly held that the entire object of Order 12 Rule 6 CPC is to ensure that a litigation should not unnecessarily continue once the admissions exist and the suit should be forthwith decided if it can be on the
5 basis of admissions. Three judgments of the Supreme Court in this regard pertaining to Order 12 Rule 6 CPC are relevant, and they are Uttam Singh Duggal Company Ltd. vs. United Bank of India & Ors., 2000 (7) SCC 120, Karam Kapahi & Ors. vs. Lal Chand Public Charitable Trust & Anr., 2010 (4) SCC 753 and Charanjit Lal Mehra & Ors. vs. Kamal Saroj Mahajan (Smt) & Anr., 2005 (11) SCC The relevant observations of the Supreme Court in the case of Uttam Singh Duggal Company Ltd.(supra) are those as contained in paragraphs 12 and 15 of the said judgment and which read as under:- 12. As to the object of the Order XII Rule 6, we need not say anything more than what the Legislature itself has said when the said provision came to be amended. In the objects and reasons set out while amending the said rule, it is stated that "where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled." We should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment. Where other party has made a plain admission entitling the former to succeed, it should apply and also wherever there is a clear admission of facts in the face of which, it is impossible for the party making such admission to succeed. xxxxx xxxxx xxxxx 15. Even without referring to the expression 'otherwise' in Rule 6 of Order XII CPC, we can draw an inference in the present case on the basis of the pleadings raised in the case in the shape of the applications under that Rule and the answering affidavit which clearly reiterates the admission. If that is so, interpretation of the expression 'otherwise" becomes unnecessary. (underlining added) 9. The relevant observations of the Supreme Court in Kamal Kapahi (supra) case are encapsulated in the following paragraphs of the head note of the judgment and which reads as under:- The principles behind Order 12 Rule 6 are to give the plaintiff a right to speedy judgment. Under this Rule either party may get rid of so much of the rival claims about which there is no controversy. In the 54th Law Commission Report, an amendment was suggested to enable the court to give a judgment not only on the application of a party but on its own motion. The amendment was brought about to further the ends of justice and give
6 these provisions a wider sweep by empowering Judges to use it ex debito justitiae. The thrust of the amendment is that in an appropriate case, a party, on the admission of the other party, can press for judgment, as a matter of legal right. However, the court always retains its discretion in the matter of pronouncing judgment. If the provision of Order 12 Rule 1 is compared with Order 12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider inasmuch as the provision of Order 12 Rule 1 is limited to admission by pleading or otherwise in writing but in Order 12 Rule 6 the expression or otherwise is much wider in view of the words used therein, namely: admission of fact either in the pleading or otherwise, whether orally or in writing. In the present case where the controversy is between the parties on an admission of non-payment of rent, judgment can be rendered on admission by the court. The provision under Order 12 rule 6 of the Code is enabling, discretionary and permissive and is neither mandatory nor is it peremptory since the word may has been used. Thus in a given situation, as in the instant case, the said provision can be applied in rendering the judgment. (underlining added). 10. In the case of Charanjit Lal Mehra (supra), the Supreme Court has observed the following in para 8 of the judgment:- Learned counsel made an alternative submission that the revision petition was not maintainable and the lease deed is not registered one and therefore, it is not maintainable. None of these objections were raised by the defendants before the learned Single Judge. Even before the trial court, the non-registration of lease deed ( which did not prescribe any term) was not put in issue, it is only devised now to some how defeat and delay the eviction and possession of the premises to the landlady. In fact, Order XII Rule 6, C.P.C. is enacted for the purpose of and in order to expedite the trials it there is any admission on behalf of the defendants or an admission can be interred from the facts and circumstances of the case without any dispute; then, in such a case in order to expedite and dispose of the matter such admission can be acted upon, in the present case, looking at the terms of lease deed, there can be no two opinions that the tenancy was joint/composite and not individual one. Therefore, on these admitted facts the view taken by learned Single Judge of the High Court appears to be justified. In this connection, a reference may be made to a decision of this Court in the case of Uttam Singh Duggal & Co. Ltd. vs. United Bank of India. Their Lordships have held as follows: " in the Objects and Reasons set out while amending Rule 6 of Order 12 CPC it is stated that "where a claim is admitted, the court has jurisdiction to
7 enter a judgment for the plaintiff and to pass a decree on Admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the" relief to which according to the admission of the defendant, the plaintiff is entitled." The Supreme Court should not unduly narrow down the meaning of this Rule as the object is to enable a party to obtain speedy judgment" Therefore, in the present case, as appearing to us, there is a clear admission on behalf of the defendants that there existed a relationship of landlord and tenants, the rent is more than Rs. 3500/-and the tenancy is joint and composite one. As such on these admitted facts, there is no two opinion in the matter and the view taken by the learned Single Judge of the High Court appears to be correct and there is no ground to interfere in this Special Leave Petition and the same is dismissed. (underlining added). 11. The emphasized portions of each of the three aforesaid judgments of the Supreme Court clearly show that the object of the legislature in enacting Order 12 Rule 6 CPC as expounded by the Supreme Court is that the Rule is to enable a party to obtain a speedy judgment where there are admissions on record either in the form of pleadings or otherwise. In the case of Charanjeet Lal Mehra (supra), the Supreme Court has gone to the extent of observing that the admission need not be a direct admission, but if an admission which can be inferred from the facts and circumstances of the case without any dispute, then, even such admissions can be looked into for the purpose of Order 12 Rule 6 CPC. 12. A reading of the plaint shows that the plaint is conspicuously silent as to which is that lay out plan which is sanctioned by the defendant no.1/mcd in which the plots of the plaintiffs are alleged to exist. The plaintiffs do make reference to as many as five resolutions of the defendant no.1 in the plaint, however, there is no averment in the plaint as to in which of these 5 resolutions the plot nos. 40 to 42 of Kalindi Colony have been sanctioned by the Municipal Corporation of Delhi. In fact, the plaint is also silent as to how and when the plaintiffs predecessors-in-interest or the plaintiffs were ever given possession of the suit plots by the defendant no.3/cooperative Society. Counsel for the plaintiffs did seek to place reliance upon the following clause 3 of the sale deeds entered into between the predecessors-in-interest of the plaintiffs and the defendant no.3/cooperative Society, however, in my opinion, this clause nowhere states that the possession has been specifically given to the plaintiffs:
8 3. That the vendor society hereby covenants with the vendee that the said plot shall be quietly entered into and upon and held and enjoyed and the rents and profits received therefrom by the vendee without any interruption or disturbance by the vendor society or any person claiming through or under them. 13. Admittedly, there is also no possession letter issued by the Society in favour of the plaintiffs. Also, the plaintiffs have no letter or NOC from the Society, unlike in case of other occupants, for taking the water and electricity connections on the plots in question. Therefore, not only there is no averment in the plaint of the plaintiffs or the predecessors-in-interest of the plaintiffs having been given possession of the plots by the defendant no.3/cooperative Society, there is nothing in the sale deeds entered into between the defendant no.3/cooperative Society and the plaintiffs which state that the physical possession of the suit plots were handed over by the society to the plaintiffs. Therefore merely because the plaintiffs seem to have shown entrepreneurship to get electricity and water connections, however, this entrepreneurship cannot in any manner legitimize the possession of the plaintiffs of the suit plots. 14. Whereas on the one hand plaintiffs do not allege in the plaint as to how they or their predecessors got possession, on the other hand, the plaintiffs in the plaint in so many words make reference to the possession letter dated issued by the defendant no.3/society in favour of the defendant no.1/mcd, and whereby, the possession of the subject plots was handed over to the defendant no.1/mcd. Though the counsel for the plaintiffs had mainly sought to argue that this letter dated did not pertain to the plots, however, if that was so there was no need to make reference to this letter dated and seek quashing of the same. In the prayer clause there is a specific relief sought for cancellation of this certificate/letter dated , and therefore, it is quite clear that the plaintiffs cannot dispute that the certificate/letter dated is pertaining to the plots being handed over to the MCD and which are the plots which is the subject matter of the suit. 15. At this stage, it would be relevant to reproduce certain paragraphs of the judgment of the Supreme Court in the case of Poonam Vs. MCD in Civil Appeal No.4246/2000 dated , and reference of which judgment has also been made in earlier part of this judgment. Before
9 referring to the relevant paragraphs of this judgment, the facts in Poonam s case before the Supreme Court should be briefly stated. The facts were that the plaintiff in the suit, and who was the appellant before the Supreme Court, claimed rights to certain plots in the self-same defendant No.3/society. The plaintiff, however, failed to show that plots were plots which fell in the sanctioned lay out plan of the MCD. The Supreme Court accordingly held that once the plots do not fall within the sanctioned lay out plan of the society, no rights would be claimed on the said plots and no construction can be made on such plots inasmuch as development or construction on the said plots would be illegal as falling foul of the relevant provisions of the Delhi Municipal Corporation Act, Also the Supreme Court has further noted that in the self-same colony i.e Kalindi colony of the defendant No.3/society herein, had at best only a total of 98 sanctioned plots and not 108 plots. The 11 plots which were sought to be brought in so as to make sanctioned plots from 98 plots to 108 plots was held by the Supreme Court to be illegal. Some of the relevant observations in that judgment are: What is also important is that admittedly neither the mother nor the Appellant were owners of old Plot No.E-25. That plot had ceased to exist much prior to the Appellant s mother having allotted Plot No.E-25 (new) The Society, prior to allotting this plot to the Appellant s mother, had by the circular dated 21st July, 1965 made it very clear that after the change of boundaries some more plots may be available and that allotment of these plots would only be conditional. The Appellant s mother had given an undertaking dated 22nd September, 1965 accepting conditional allotment of Plot No.E-25 (new). She then entered into an Agreement which is a conditional agreement as set out hereinabove. The allotment to her was conditional on a revised layout plan containing additional plots being sanctioned. The Municipal Corporation of Delhi refused sanction. This was intimated to Appellants mother in In 1969 the Appellants mother considered the allotment of plot E-25 (new) to be conditional and subject to the revised layout plan being sanctioned by the Municipal Corporation of Delhi. Thus, at all stages the Appellant s mother knew and accepted the fact that her plot was one of the new plots for which sanction would have to be obtained from the Municipal Corporation of Delhi and that if such sanction was not obtained she would have no right except to receive back the moneys paid to the society. When it was pointed to Mr. Shanti Bhushan that the Appellant s mother had entered into a conditional agreement and that the Appellant, who merely steps into the shoes, of her mother, could claim no higher or better rights. He submitted that all Sale Deeds executed by the Society were
10 conditional sale deeds. Mr. Shanti Bhushan showed to Court a number of Sale Deeds and showed that all Sale Deeds executed by the Society were conditional. However, it must be remembered that the Society had carved out 11 new plots and had entered into conditional agreements with all persons who wanted allotment of those new plots. Those were the agreements which Mr. Shanti Bhushan was showing to Court. Mr. Rohtagi pointed out to court that in respect of plots which were not new plots the Society had entered into Agreements which were not conditional agreements. He pointed out that the father and sister of the Appellant (i.e. the husband and daughter of Appellant s mother) had also been allotted plots which were part of the revised layout plan as sanctioned in Mr. Rohtagi pointed out that those agreements were not conditional agreements. Mr. Rohtagi submitted that the statement made by Mr.Shanit Bhushan across the bar, that all agreements were conditional agreements was not a correct statement. Mr. Rohtagi is correct. Court has seen that members of the Appellant s family had themselves entered into agreements which were not conditional agreements. On a query from Court Appellant, who was present in Court, confirmed that her father and sister had entered into agreements which were not conditional. This made it very clear that the Appellant s mother and event he Appellant were well aware that Plot No.D-25 (new) was not in substitution of the old Plot No.E-25 and that Plot No.E-25 (new) was a new plot which could only be allotted provided sanction was accorded by the Municipal Corporation of Delhi. In our view, Mr. Rohtagi was also right when he submitted that the layout plan of the Society could only have 98 plots. He correctly pointed out that in exchange for old plots Nos. E-25 and C-23 (which had gone away to the Central Road Research Institute) the Municipal Corporation of Delhi had by its resolution dated 29th January, 1976 permitted the Society to carve out Plot Nos. C-35 and C-36. He submitted and in our view correctly, that if anybody had any grievance to the effect that Plot No.25 (new) should have been the plot in exchange of the old E-25, then a complaint should have been made at that stage and the request of the Society and the decision of the Municipal Corporation to permit plot Nos. C-35 and C-36 should have been challenged at that stage. He points out that the Resolution dated 29th January, 1976 and the carving out of plots Nos. C-35 and C-36 in placed of Plots Nos. E-25 and C-23 has never been challenged by anybody. He submits that admittedly there can be only 98 and the Appellant cannot ask for building activity to be permitted on an additional plot, which would make it 99 plots. He also points out, and in our view correctly, that the allottees or owners of Plots Nos. C-35 and C-36 have not been made parties
11 to any appeal or litigation undertaken by the Appellant and that the sanction of those plots by the Municipal Corporation has not been in challenge at any stage. In our view, from the above it is clear that in 1958 a layout containing 98 plots was sanctioned. There is no sanction for more than 98 plots. Including plot C-35 and C-36 there are already existing 98 plots in the Society. The Municipal Corporation of Delhi cannot be directed to create one more plot. What the Appellant, in effect, is claiming is directions to the Municipal Corporation of Delhi to sanction an additional plot as Plot N O.E- 25 (new). The right of the mother of the Appellant and/or the Appellant, if one existed, was to challenge, sanction of plots C-35 and/or C-36. This has never been done. Clarified that this Court is not saying that the Appellant or her mother have a right to challenge sanction of plots C-335 and/or C-36. Under these circumstances, we are of the view that the High Court was absolutely right in coming to the conclusion that Plot no.e-25 (new) is not part of the sanctioned layout plan and that there can be no building activity in the absence of a sanctioned layout plan. To permit such building activity would clearly be in violation of Section 337(1) of the Municipal Corporation Act. Under these circumstances, we see no reason to interfere. The Appeal stands dismissed. There will be no order as to costs. (underlining added) 16. In the present case also the sale deeds which were executed in favour of the predecessors-in-interest of the plaintiffs contained identical clause as was in issue before Supreme Court in Poonam s case. The identical clause is the clause No.7 of the sale deeds which specifically states that in case the lay out plans are not approved by the MCD, then, the plots will automatically revert to the defendant No.3/society. As already stated above, the plaintiffs could not refer to any averment in the plaint as to under which resolution of the MCD the plots of the plaintiffs were made part of the sanctioned lay out plan of Kalindi Colony of the defendant No.3/society. 17. Of course, the judgment which is not inter se the parties, would not operate as res judicata, however, even a judgment which is not interparties but if it deals with the ownership of similar properties then the same would be relevant under Section 13 of the Evidence Act, 1872 which deals with relevancy of certain judgments. The Supreme Court in its judgments of a Bench of four Judges and three Judges in the cases reported as Sital Das vs. Sant Ram, AIR 1954 SC 607 and Shrinivas Krishnarao Kango vs. Narayan Devji Kango and Ors., AIR 1954 SC 379 respectively has held that
12 if it is held in a judgment that a person is an owner, then, even though the judgment may not be a judgment inter se the parties to a suit, yet, the said judgment is very much admissible in evidence to show the assertion of the title with respect to the immovable property in question. The defendant No.3 was a party to the judgment before the Supreme Court in Poonam s case and it was held by the Supreme Court in the said judgment that there are only 98 plots of the defendant No.3/society and no sanction was granted to the additional 11 plots. The plots of the plaintiffs do not fall in 98 plots. I may note that the defendant No.1 has filed its resolution dated which specifically provides that the plots of plaintiffs numbered as 40 to 42 are not part of the sanctioned lay out plan of the defendant No.3/Society. The relevant portion of this resolution reads as under:- 8. Recommendation: In view of the legal opinion, stay granted by Hon ble High Court on operation of the order of A.D.J., filing of revision petition by M.C.D. in High Court and other deficiencies of the application and as required under section 313 of DMC Act (amended to date) the incorporation of plots bearing No.E-40, E-41 and E-42 in the layout plan of Kalindi Colony, New Delhi is placed before the Standing Committee for rejection. Item No. 2 :- Incorporation of plots bearing Nos. E-40, E-41 and E-42 in the lay out plan of Kalindi Colony, New Delhi. Resolution No.80 Resolved that in view of the position as brought out by the Commissioner in his letter No. F-33/TP/117/C & C dated , incorporation of plots bearing Nos. E-40, E-41 and E-42 in the lay out plan of Kalindi Colony, New Delhi, be rejected as proposed. 18. This document is a public document and no proof of the same is required. Being the public document, I am entitled to consider the same under Section 74 of the Evidence Act, In the present case, therefore, the judgment of the Supreme Court in Poonam s case is a clear cut evidence as to lack of ownership in the said plots of the plaintiffs, and the fact that the subject plots would either vest with the defendant No.3 or the possession of the same as per the stand of the defendant No.3 will vest in the Municipal Corporation of Delhi/the defendant No The upshot of the above discussion is:- (i) The subject plots of the plaintiffs are not part of the sanctioned lay out plan of the colony.
13 (ii) Only 98 plots in the Kalindi Colony fall within the sanctioned lay out plan of the Kalindi Colony. (iii) The plaintiffs plots do not fall in the 98 plots sanctioned by the MCD for the Kalindi Colony. In fact, there is a resolution dated of the defendant No.1 specifically rejecting the bringing in the plots of the plaintiffs in the sanctioned lay out plan of the Kalindi Colony. (iv) Plaintiffs have neither averred nor filed anything on record which can suggest that possession of the plaintiffs is a legal possession and which possession was handed over to the plaintiffs by the defendant No.3/society. The defendant No.3/society in fact has handed over subject plots of the plaintiffs to the defendant No.1/MCD. (v) The plaintiffs are therefore neither title holders nor entitled to claim to be in legal possession of the subject plots. 21. The Supreme Court in the judgment of Pt. Chet Ram Vashist (Dead) by Lrs. vs. Municipal Corporation of Delhi, AIR 1995 SC 430 has held that no doubt Section 313 of the Delhi Municipal Corporation Act, 1957 does not permit the MCD at the time of sanctioning of lay out plan to take ownership of public areas such as parks, open spaces etc, however, the Supreme Court has quite clearly clarified in the said case that the MCD is very much a custodian in public interest for managing the open plots and the parks which form part of the lay out plan of a colony which is sanctioned under Section 313 of the Delhi Municipal Corporation Act, Para 6 of the judgment in Pt. Chet Ram Vashist (supra) is relevant and the same reads as under:- 6. Reserving any site for any street, open space, park, school etc. in a layout plan is normally a public purpose as it is inherent in such reservation that it shall be used by the public in general. The effect of such reservation is that the owner ceases to be a legal owner of the land in dispute and he holds the land for the benefit of the society or the public in general. It may result in creating an obligation in nature of trust and may preclude the owner from transferring or selling his interest in it. It may be true as held by the High Court that the interest which is left in the owner is a residuary interest which may be nothing more than a right to hold this land in trust for the specific purpose specified by the coloniser in the sanctioned lay-out plan. But the question is, does it entitle the Corporation to claim that the land so specified should be transferred to the authority free of cost. That is not made out from any provision in the Act or on any principle of law. The Corporation by virtue of the land specified as open space may get a right as a custodian of public interest to manage it in the interest of the society in general. But the
14 right to manage as a local body is not the same thing as to claim transfer of the property to itself. The effect of transfer of the property is that the transferor ceases to be owner of it and the ownership stands transferred in the person in whose favour it is transferred. The resolution of the Committee to transfer land in the colony for parks and school was an order for transfer without there being any sanction for the same in law. 22. In view of the above discussion, neither the plaintiffs are the owners nor the plaintiffs are in legal settled possession and thus no reliefs be granted to the plaintiffs. It is the defendant No.3 who had granted conditional ownership to the plaintiffs and which by virtue of the very sale deeds which granted ownership reverted back to the defendant No.3 on account of failure to get sanctioned the plots in a lay out plan by the defendant No.1. The defendant No.3 vide the letter/certificate dated handed over the subject plots and the other open areas to the defendant No.1/MCD. The defendant No.1/MCD is custodian in public interest of all open spaces and parks which are meant for common public use and they cannot be unilaterally appropriated by any person including the plaintiffs. The plaintiffs therefore are not entitled to the declaration or the discretionary relief of injunction as has been prayed. 23. In view of the above, suit of the plaintiffs being without any merit is accordingly dismissed, leaving the parties to bear their own costs. Sd/- NOVEMBER 22, 2012 VALMIKI J. MEHTA, J