R.F.A. No. 522 of 2004
Date of decision : 16th December, 2004

Through : Mr.Anand Yadav, Advocate.
Through: Mr.Rajeev Mehra,Advocate, for UOI
Mr.G.P.Thareja,Advocate, for DDA.
Mr.Ashok Bhasin, Advocate, for MCD.



1.This appeal is directed against the judgment and order passed by the learned Additional District Judge on September 16, 2004 passed in Suit No. 1236/2000 dismissing the suit filed by the appellants as plaintiffs with costs.

2.The suit was instituted by the appellants as plaintiffs seeking for a decree of declaration that the plaintiffs and particularly its members are owners by adverse possession in respect of all the area abutting the Central Park, and also for a decree of permanent injunction and also mandatory injunction restraining the defendants, their agents, servants and employees from in any manner ejecting the plaintiff-association and its members and their families from the suit property as also restraining further demolition and to prove temporary structures at the suit site, and also to pass a decree for damages.

3.The aforesaid suit was instituted in the name of Subhash Market Association. In the cause title of the suit the appellant-plaintiff described itself as follows:-
"Subhash Market Association
Subhash Market JJ Camp,
Nanakpura, Moti Bagh I,
New Delhi-110021."

However, along with the aforesaid plaint a memo of parties was annexed wherein name of Shri Mukesh Kumar Gupta son of Shri D.C. Gupta was shown as plaintiff No.2. It was also shown that Subhash Market Association had filed the said suit through its President Shri Pran Nath Soni. The plaint was signed and verified by Sh.Prem Nath Soni alone. No right of the plaintiff No.2 was disclosed in the plaint.

4.In the plaint it was not stated that the plaintiff is a registered society. It only stated that the suit is filed in a representative capacity and, therefore, a separate application under Order I, Rule 8 of the Code of Civil Procedure was filed and it was stated that the plaint was being instituted, filed, signed and verified by Shri Pran Nath Soni, the Pressident of the plaintiff-association for and on behalf of its members whose number is approximately 75 to 80. The cause of action for filing the suit is stated in paragraph 19 of the plaint.

5.The respondents herein were arrayed as defendants in the plaint. The suit was contested by the respondents who filed their written statement. On the basis of the pleadings of the parties issues were framed on 6.7.2004 and Issues Nos. 1 and 2 were directed to be treated as preliminary issues. Issue Nos. 5 and 6 relating to maintainability of the suit were also treated as preliminary issues and an opportunity was granted to the parties to argue on the same, as noticed in the impugned order. These issues read as under:

1.Whether the plaintiff is an association and legally entitled to file the present suit under Order I Rule 8 CPC? OPP.
2.Whether the suit has been filed by a duly authorised person? OPP.
xx xx xx
5.Whether the suit is not maintainable in view of the preliminary objection taken by the defendant No.1 in its written statement? OPD1.
6.Whether the suit is not maintainable in view of section 14(1)(e) of Specific Relief Fund Act, 1963? OPD1.

6.The learned Additional District Judge took up the aforesaid four issues as preliminary issues and by his judgment and order dated September 16, 2004 dismissed the suit after recording his findings in the aforesaid issues, namely, Issue Nos. 1, 2, 5 and 6.

7.As against issue nos. 1 and 2 it was held that the aforesaid suit which was filed by the appellant as plaintiff cannot be treated as a representative suit as the requirement of issuing a notice as contemplated under Order I Rule 8 of the Code of Civil Procedure for which a direction was given by the High Court vide order dated June 19, 2000 was not complied with. It was also held that the suit was not instituted and the plaint was not filed, signed and verified by a duly authorised person. Accordingly, the aforesaid two issues framed as Issues Nos. 1 and 2 were decided against the appellant-plaintiff and in favour of the defendants-respondents.

8.So far Issue Nos. 5 and 6 are concerned, it was held by the learned trial court that the suit itself was not maintainable even on the basis of the pleadings and documents relied upon by the plaintiff.

9.In the present appeal which is filed as against the aforesaid judgment and order, counsel appearing for the appellants has not only taken us through the contents of the judgment but also has drawn our attention to the various documents on record which we have called for. We have appreciated the said contentions advanced on behalf of the appellants in the light of the records.

10.We find that the learned trial court has extensively quoted the provisions of Order I Rule 8 of the Code of Civil Procedure. Sub-rule (2) of Rule 8 of Order I of the Code of Civil Procedure mandates that the court in all cases where a permission or direction is given under sub-rule (1) to allow one more such persons to sue or be sued, or may defend such suit, on behalf of or for the benefit of all persons so interested, to give notice of institution of the suit to all persons so interested either by personal service or by public advertisement.

11.While dealing with the present suit, the trial court also passed an order to that effect on June 19, 2000. According to the appellant-plaintiff, a few pamphlets were got issued pursuant to the said order dated June 19, 2000. It is to be seen that not a single copy of the said pamphlet has been placed on records to substantiate the aforesaid fact. There is no material on record to show distribution of the pamphlets. Consequently, there is no evidence on record to prove and establish that the persons who could be said to be interested were served personally or through advertisement. Therefore, there was apparent non-compliance of provisions of sub-rule (2) of Rule 8 of Order I of the Code of Civil Procedure in the aforesaid case. The plaintiff claimed membership of 75-80 persons in the plaint. It was strongly canvassed that in compliance with the orders, the appellant filed process fee in the case for issuance of notices by the court. Perusal of the process fee form shows that the process filed by the appellant would have been sufficient to serve only 3/4 persons. No list of the 75-80 members was filed. It was also an admitted position, as stated in paragraph 11 of the impugned judgment, that the plaintiff did not comply with the requirements of Order I Rule 8 of the Code of Civil Procedure. We find no reason to vary the findings of the learned Trial Judge.

12.The next relevant issue which requires consideration is the issue with regard to mode and manner of the institution of the suit. The suit was instituted by an unregistered association. The said association is not a legal entity in the eye of law. In a memo of parties filed with the plaint one more name has been given. But the same cannot be treated as a part of the plaint. The provisions contained in the Code of Civil Procedure do not mandate filing of a memo of parties as a part of the plaint. The legal requirement in the suit is only filing of an address form under the Code of Civil Procedure. A reading of the entire plaint would prove that the suit was intended to be instituted by a single plaintiff. Reference in the plaint is made to a single entity i.e. plaintiff "in singular" and therefore there could be no doubt that the suit was instituted and the plaint was filed by an unregistered society, which is not a legal entity. Sh.Mukesh Kumar Gupta (shown as plaintiff No.2 on the memo of parties) has not signed or verified the plaint. Therefore, it is also held that the suit was not properly instituted and the plaint was also not signed by duly authorised person.

13.Counsel appearing for the appellants submitted before us that since the suit was instituted by the plaintiffs pleading specific case of adverse possession, therefore, the learned trial court acted illegally and committed manifest error of law and fact in holding that the plaintiffs are licensees. The aforesaid plea which is taken by the appellants appears to be without any merit in view of the statements made in paragraph 19 of the plaint which deals with the cause of action of the suit. A bare perusal of the same would indicate that the appellants-plaintiffs are also claiming rights and interests in the suit property on the basis of licences issued to them by the defendants. According to them, they are in possession of the suit property on the basis of licences granted to them by the defendants-respondents. The said plaintiffs have failed even to state in the plaint any overt or hostile act to prove, establish and justify their stand that they are entitled to a decree of adverse possession. In paragraph 9 of the plaint it was stated thus:-
"9.The act of awarding certificates under the Delhi Shops & Establishment Act, levying Tehbazari/Rehri charges, legally confer a vested right and interest in favour of the plaintiff, which is not subject to rampant annihilation in the abrupt manner as has been done."

14.For claiming ownership by way of adverse possession it has to be necessarily proved and established that the possession was wrongful as against the rightful owner and such possession, which is adverse in nature to the interest of the rightful owner, must be actual, physical, exclusive, open and continuous. Not a single such instance is pleaded in the plaint except by stating as stated in paragraph 9 as quoted above. Therefore, in our considered opinion their possession being claimed to be permissive in nature they were rightly held not to have acquired ownership by adverse possession by the learned trial court.

15.In the light of the aforesaid discussions and conclusions, we are of the considered opinion that there is no error in the judgment and decree passed by the learned trial court and the impugned judgment suffers from no infirmity. We find no merit in this appeal which is dismissed with costs.

(Dr. Mukundakam Sharma)

(Gita Mittal)

Report Disclaimer Applies

कृपया प्रसार करें:

पिछला लेख
अगला लेख