In The Court of Sh.
Sanatan Prasad,
District Judge-02, East District,
Karkardooma Courts, Delhi.
RCA DJ No. 14/2025
CNR No. DLET01-000977-2025
In the matter of :-
1. Sh. Ajab Singh,
S/o Late Sh. Indal,
R/o 55, Kondli Village, Delhi-110096.
2. Smt. Kamlesh,
Widow of late Sh. Gianinder.
3. Sh. Deepak Singh,
S/o Late Sh. Gianinder.
4. Sh. Anuj Singh,
S/o Late Sh. Gianinder,
The Appellants No.2 to 4 are
R/o 55, Kondli Village,
Delhi-110096.
5. Smt. Renu Singh,
W/o Sh. Manish Kasana,
R/o 8/162, Near National Public School,
Rajender Nagar, Ghaziabad.
6. Sh. Dhyan Singh,
S/o Late Sh. Indal,
R/o 185, Kondli Village,
Shiv Mandir, Delhi-110096.
....Appellants.
Versus,
1. Delhi Jal Board,
Through Vice Chairperson,
Varunalya, Phase-II,
Jhandewalan, Karol Bagh,
New Delhi.
2. Senior Engineer,
Sewage Treatment Plant,
Kondli, Delhi-110096.
.....Respondents.
Date of Institution : 14.03.2012
Date of Reserving Order : 30.05.2025
Date of Decision : 26.06.2025
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.1 of 23
DOD : 26.06.2025
Appeal Under Section 96 of CPC Read with Order XLI CPC
against the Impugned Judgment and Decree, dated 29.01.2024,
passed by Sh. Mayank Goel, Ld. JSCC/ASCJ/GJ, East District,
Karkardooma Courts, Delhi in Suit No. 50/2012, 9820/2016 in
the Case titled as “Sh. Ajab Singh & Ors Vs. Delhi Jal Board &
Anr.”.
Present : Sh. Sushant Mukund, Ld. Counsel for the appellants.
Sh. Naresh Sharma, Ld. Counsel for the respondents.
ORDER
1. This is an appeal directed against the impugned Judgment
and Decree, dated 29.01.2024, passed by the court of Sh.
Mayank Goel, the then Ld. ASCJ-cum-JSCC-cum-Guardian
Judge, East, KKD, Delhi, vide which, the Ld. Trial Court had
dismissed the suit of the present appellants/the then plaintiffs,
by holding that the plaintiffs, themselves are the wrong doer
and the defendants were raising the boundary wall on the
acquired land and therefore, the plaintiffs have failed to prove
issue No.1, hence, not entitled for any relief.
2. The appellants have filed the present appeal, feeling
aggrieved by the impugned judgment and decree, dated
29.01.2024, on the grounds that the Ld. Trial Court had failed
to appreciate the entire evidence, led by the present
appellants/the then plaintiffs. However, there is no dispute
regarding the ownership of the suit property by the
appellants/the then plaintiffs and inspite of no dispute in this
regard, the suit was dismissed without any legal justification.
3. Succinctly stated, facts of appeal are that the present
appellants/the then plaintiffs are the owner by way of
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.2 of 23
DOD : 26.06.2025
inheritance and in actual physical possession of ½ share of
land comprising of Khasra Nos. 106/2, (1-19), and 207/2min,
(4-05), situated in Revenue Estate of Village Kondli,
Delhi-110096. The present appellants/the then plaintiffs filed
the suit No. 9820/2016 for decree of permanent injunction
against the respondents/the then defendants for restraining
them for raising the boundary wall on the passage, to which
the present appellants/the then plaintiffs were enjoying
continuously from the time of their ancestors as entrance from
the road side for their aforesaid property. The Government of
India, vide Award No. 2/78-79, dated 08.05.1978, acquired
Khasra No. 106 min (1-19) and Khasra No. 207/1(0-09),
whereas, the rest of the land of fractioned Khasra Nos.
106/1(1-19), 106/2(1-19), 207 min (4-05) are in ownership and
physical possession of the then plaintiffs/the present
appellants, herein. The present appellants raised the iron bar
fencing of Khasra No. 106/2, 207 min and planted large
number of trees on their land and converted the same into
orchard to save their land from encroachment and merger in
Gram Sabha. Adjacent to the land in question, there is a
sewage treatment plant, Kondli, of Delhi Jal Board.
4. In the first week of March, 2012, the present
respondents/the then defendants started constructing the
boundary wall of sewage plant in the village abadi side and
Kondli-Dallupura Road side on the acquired land. The then
defendants/the present respondents herein, in the garb of
acquisition of some parts of land, raising boundary wall on the
passage, which falls in Khasra No. 106/2(1-19) to which
plaintiffs are enjoying as entrance to their land of Khasra Nos.
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.3 of 23
DOD : 26.06.2025
106/2 and 207/2min, with intention to deprive the then
plaintiffs from entering into the land of the then plaintiffs/the
present appellants, herein and gradually, dispossess the present
appellants from their land of aforesaid Khasra numbers.
Thereafter, the suit of the then plaintiffs/the appellants was
dismissed, vide judgment and decree, dated 29.01.2024,
hence, the present appeal.
5. Notice of the appeal was issued to the present respondents,
who have put their appearance through Counsel and have
opposed the appeal filed by the present appellants.
6. Trial Court record is also requisitioned and perused.
7. I have heard Ld. counsel for the appellants as well as the
Ld. Counsel for the respondents in detail and perused the
record, also the written arguments filed by the present
appellants.
8. It appears that vide order, dated 26.05.2025, delay of one
year in filing the present appeal has been condoned subject to
cost of Rs.50,000/-, which, has, now, been paid.
9. It further appears that the Ld. Court below had framed
following issues for trial, vide its order, dated 22.02.2014,
reading as under:-
1. Whether the plaintiff is entitled for a decree of
permanent injunction as prayed for? OPP.
2. Relief; And in support of their respective claims, both
the sides, led their evidences and opening portion of the
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.4 of 23
DOD : 26.06.2025
paragraph No.6 of the impugned order details about the
documents produced by the then plaintiffs/present appellants,
whereas, paragraph No.7 details about the documents
produced by the then defendant/the present respondents,
similarly.
10. Ld. Counsel for the present appellants has, vehemently,
assailed the impugned order in his multipronged attack and his
submission is that the Ld. Court below, gravely, erred by not
understanding the whole gamut of the case, laid before it, as
the civil disputes are to be decided, on the basis of the
respective pleadings, made by the parties, and also material
evidence/(s), led by them to prove and disprove, the issues
framed in the case, and the Ld. Court below was made to
confuse/prevented to gather even the basic thrust of the
pleadings, made by the then plaintiffs, and for this he draws
my attention to the paragraph No.1, of the amended plaint,
reading as under:-
“1. That the plaintiffs who are the owner by way of
inheritance and in actual physical possession of ½ share of
land comprising of khasra No. 106/2 (1-19) and 207/2min (4-
05), situated in revenue estate of village Kondli,
Delhi-110096, are constrained to file the present suit praying
for decree of permanent injunction against the defendants
restraining them from raising the boundary wall on the
passage to which the plaintiffs are enjoying continuously from
time of their ancestors as entrance from the road side for their
aforesaid property, passage, the subject matter of dispute is
shown in red colour in the site-plan an ( and : sic), marked as
A-B, site plan is annexed herewith this plaint as Annexure-
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.5 of 23
DOD : 26.06.2025
P-1”.
He further draws my attention to the respective reply, on
merits, made by the then defendants, to the above, paragraph
No.1, which reads as under:-
“1. That para No.1 is denied. It is denied that the plaintiffs
are the owner of any part of land comprised in Khasra No. 106
and or Khasra No. 207 of the village Kondli, Delhi. As a
matter of fact there is no Khasra No. 106/2 or 207/2min as
stated by the plaintiffs. The correct Khasra Nos. are 106 and
207/1 and the land in said Khasras stand acquired and given
over to Delhi Jal Board. The defendant is filing herewith the
copy of Award No. 2/78-79 Village Kondli, Delhi. The
plaintiffs are not in possession of any portion of land as
alleged and as such have no right, title or interest in the land of
Khasra Nos. 106 and 207/1……….”.
11. In this series, he again quotes the contents of the affidavit
of the DW1, Sh. Ashish Kumar Gupta, the Executive
Engineer, DJB, Delhi and more specifically, the paragraph
No.3, thereof, reading as under:-
“3. I say that, if Aksh Sajra it ( is : sic), to be perused, it is
abundantly clear that Khasra No. 106/2 and Khasra No.
207/2min is outside the plant, i.e., Sewage treatment Plant of
DJB and not inside in the plant.”; And has, forcibly, submitted
that the very initial heft of the pleadings, made by the parties
was that the then plaintiffs, also claim, themselves, to be the
owners of the respective khasras numbers 106/2 (1-19) and
207/2min, (4-05), which was, falsely, denied by the then
defendants/present respondents in the above reply on merits,
in their ‘Written Statement’, when, they, unfairly say that “as a
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.6 of 23
DOD : 26.06.2025
matter of fact there is no khasra no. 106/2 or khasra no.
207/2min, as stated by the plaintiffs” and then, how come the
DW1, to depose, his delineated content/version, enumerated in
the paragraph No.3 of his affidavit and this kind of duplicity
and deception, played upon the Ld. Court below, had led to the
mis-carriage of justice as the then plaintiffs, simply, believed
that the DJB, being a governmental institution would not
propagate lies to usurp and grab the valuable land of the
illiterate villagers. His further submission is that due to this
confusion created by the falsehood of the present
respondents/the then defendants, the Ld. Court below had
dismissed the application under Order XXXIX Rules 1 &2,
CPC, vide its order, dated 12.09.2013, though, it were present
respondents/the then defendants, who had made false/duel
claims and pleadings and not the present appellants/the then
plaintiffs, who have been made to suffer, unnecessarily and
unjustly, as they are villagers and simply illiterate persons.
12. In this context, it would be useful to note that the suit was
filed before the Ld. Court below on 13.03.2012 and on
16.03.2012, the Ld. Court below had granted interim relief to
the then plaintiffs, thereby, directing the then defendants to
continue with the construction of the boundary wall, however,
leaving a passage of 10’ width between point AB, as shown in
the site plan till further orders and the order was passed to
address the urgent and emergent situation on the contention of
the Ld. Counsel for the then plaintiffs that the defendants were
raising a boundary wall on the portion of the aforesaid
property, facing main road, and there was 20’ wide passage,
shown at points AB, as per the site plan, through which the
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.7 of 23
DOD : 26.06.2025
then plaintiffs were having access to their property. Another
basic submission was made on account of the then plaintiffs
suffering irreparable loss and injury also further possibility of
leading to multiplicity of litigation, if relief was not granted.
However, vide order, dated 12.09.2013, passed by the Ld.
Court below, the injunction application was dismissed on
merits, thereby, vacating the interim order and allowing the
construction of wall on the considerations of irreparable loss,
were to be caused to the then defendants and further that no
documents has been filed, which can suggest that the plaintiff
has been using ‘rasta’ from the road side and further the factor
of the balance of convenience also lied in favour of the then
defendants.
13. He also contends that the Ld. Court below further misread
the pleadings, made by the then plaintiffs, in their plaint and
more particularly, in paragraph No.9 & 10, thereof, reading as
under:-
“9. That due to Notification of large tract of land for
acquisition by the Government, Cultivation of land became
impossible and plaintiffs in order to save their land from the
possible encroachment and/or merger in Gram Sabha because
of non-cultation (non-cultivation : sic), raised the Iron Bar
fencing of Khasara Nos. 106/2 and 207/2min and planted large
number of trees on their land and converted the same into
orchard.”
“10. That adjacent to the land in question there is Sewage
Treatment Plant, Kondli of Delhi Jal Board. In the first week
of March, 2012 defendants started constructing the Boundary
wall of Sewage Treatment Plant in the village Abadi, side and
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.8 of 23
DOD : 26.06.2025
Kondli-Dallupura road side on acquired land. Since the
defendant had acquired some small portions of land from
various Khasra numbers and they were constructing the
boundary wall on the acquired land, plaintiffs had no occasion
to interfere, but it appears that in the garb of acquisition of
some parts of lands, Defendants are contemplating to raise
boundary wall on the passage which falls in Khasra No. 106/2
(1-19) to which Plaintiffs are enjoying as entrance to their land
of Khasra No. 106/2 and 207/2min with intention to deprive
the Plaintiffs from entering into the land of plaintiffs and
gradually dispossess the plaintiffs from their land of aforesaid
Khasra Numbers. Photographs of going on construction of
boundary wall are annexed here with as Annexure-P-10”.
14. Based on the above, his emphasis is that the Ld. Court,
below, truely fell into error, when it chose to read the plaint as
per the averments made by the then plaintiffs and according to
the Ld. Court below, those paragraphs meant that ‘the
passage/wall/the Grill’, being the subject matter of the dispute,
were being constructed on the acquired land, whereas, the true
and correct pleadings, were to the effects that the then
defendants started constructing boundary wall of the STP in
the first week of March, 2012, in the village Abadi, Kondli,
Dallupura, Delhi, abadi side, on the acquired land and since
the defendants had acquired some small portion of land from
various khasras numbers, and they were constructing the
boundary wall on the acquired land, the then plaintiffs had no
occasion to interfere with it, yet, further, the true pleadings
were, that, as, “it appears that in the garb of acquisition of
some part of the lands, Defendants are contemplating to raise
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.9 of 23
DOD : 26.06.2025
boundary wall on the passage, which falls in Khasra No. 106/2
(1-19), to which the then plaintiffs are enjoying as entrance to
their land of Khasra No. 106/2 and 207/2min, with intention to
deprive the then plaintiffs from entering into the land of the
then plaintiffs and gradually, dispossess the then plaintiffs
from their land of aforesaid khasra numbers and for that
photographs of then going construction on the boundary wall
were also annexed.
15. Now, the Ld. Counsel contends that it is clear that the Ld.
Court below had misunderstood these pleadings, which is
primarily, one of the major basis for passing the impugned
order, which cannot sustain in law.
16. He further contends that civil suits are to be decided on the
basis of the status, as on the date of the suit, alone and more
particularly, in a case, where relief of injunction has been
prayed for and initially, the Ld. Court below, as an interim
measure had restrained the then defendants from constructing
the boundary wall, however, leaving the passage of 10’ width
between points A & B, as shown in the site plan, i.e.,
Ex.PW1/10, till further orders, though there was 60’ wide
passage, shown on the points A & B as per site plan, through
which the then plaintiffs/present appellants were having access
to their property, however, at this juncture, Sh. Mukund
concedes that the site plan, i.e., Ex.PW1/10 does not mention
any measurement of the passage, as shown between the points
A & B, more so, however 20’ or 10’ or 60’, but continues that
it is the falsehood and confusion, created by the then
defendants that the interim order was vacated by the Ld. Court
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.10 of 23
DOD : 26.06.2025
below, as the then defendants/present respondents, were
successful in misleading the Ld. Trial Court, thoroughly, and
he further draws my attention to Ex.PW4/A, filed in the Court
below, on 15.01.2013 and proved in evidence, on 25.04.2022,
showing, in its serial No.2, Khasra No. 106/2, (1-19), held in
the names of Liley, Indal, Sons of Atraj, equal share, cast Jujar
and in column No. 18 of the ‘Khasra Girdwari’ (which is
considered to be complete record of the land) for the year,
1975-76, shows the type of land as ‘Sadak Jadeed No.1’ and
rakba, shown is (1-19), he, thus, vehemently, contends that
despite there being ample documentary evidence, the Ld.
Court below did not take any cognizance thereof, which has,
prejudicially, affected the case of the present appellants/the
then plaintiffs.
17. He also contends that the Ld. Court below was not
justified in culling out one suggestion from here and another
from there and to juxtapose them without any meaningful
context and now, he says that the suggestion made to the
DW1, as mentioned in the paragraph No.2, of the page 12 of
the impugned order, to the effect, i.e., “It is correct that the
Department/Delhi Jal Board had not created any boundary
wall at Khasra No. 106/2 and Khasra No. 207/2min” and
further noting that during his cross-examination, even the
PW1, had admitted that it is correct that Khasra No. 106/2 and
Khasra No. 207/2min, is outside the plant and not inside the
plant, and based on this, his contention is that the Ld. Court
below should have appreciated the evidence, led by the
parties, in right earnest and proper perspectives, also
meaningfully and not haphazardly to extrapolate the
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.11 of 23
DOD : 26.06.2025
conclusions, arrived by it arbitrarily, more so, when the
Ex.PW4/A shows the existence of ‘Sadak Jadeed No.1’, as
above, lastly, he submits that though, the application, seeking
amendment stood rejected, yet, the Court can grant appropriate
relief as it is a case of total miscarriage of justice and he also
draws my attention to the provisions of Order XLIII-1A.(1),
CPC, and his further contention is that the order, dated
28.08.2023 also suffers on account of malaises of the
falsehood, created by the then defendants and made believed
to and by the Ld. Court below, which had misdirected, itself,
even at the initial stage of the suit, while dismissing the
interim application, vide order, dated 12.09.2013, putting the
then plaintiffs, totally disarrayed. He also submits that the
acceptance of by the DW1, or the PW1 that the STP Plaint, is
outside the Khasra Nos.106/2 & 207/2min, is never material,
inasmuch as, the case of the then plaintiffs/present appellants
is exactly to this effect, but the construction of the boundary
wall, at the passage, is, in fact, the bone of contention and
instead of constructing the boundary wall, on their own land,
the then defendants/present respondents have constructed the
boundary wall to block the passage of the then the plaintiffs,
through which, they were having access to their land of
Khasra Nos.106/2 & 207/2min to stop the entrance of the then
plaintiffs to their land and even if the Khasra Nos. 106/2 &
207/2min is accepted to be outside the Plaint and not inside
the Plaint, yet, the entrance of the then plaintiffs/present
appellants to their own land cannot be prevented/obstructed
through the Sadak, which were shown in the Khasra
Girdawari, for the year 1975-76, in Column No.18, against
Khasra Nos. 106/2, (1-19), as “Sadak Naya”.
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.12 of 23
DOD : 26.06.2025
18. On the other hand, Sh. Naresh Sharma, Ld. Counsel for the
respondents has, vociferously, contended that the wall in
question was, already, in existence and had been built as early
as, in the year, 1982. He also submits that no documents of
recent origin either of Khasra Khatoni or Zamabandi has,
been, placed on record and the then plaintiffs/present
appellants have relied on the obsolete documents, though, the
land stood acquired vide Award No.2/1978-79, dated
08.05.1978. The then plaintiffs/present appellants, who
themselves, had admitted that wall in question was being
constructed on the acquired land only and in fact, the wall was
in existence even at the time of filing of the suit, but the STP
plant, being a very large facility, was being encroached upon
by the unscrupulous persons and therefore, to safeguard its
large facilities, the DJB, took steps for constructing the wall
for safety of its STP plant/ public at large and further from
land encroachment. Since the public used to demolish the wall
for their access, therefore, the DJB has also deemed it
appropriate to place iron grills to stop unwanted
encroachment. However, the then plaintiffs/present appellants,
admittedly, have their rightful passage from other side and as
such they cannot claim any right on the land of the STP, which
is admittedly, outside the land of Khasra No.106/2 (1-19) and
also 207/2min. He also contends that in any case, the suit of
the plaintiff has become, already, infructuous and no relief can
be granted under the facts and circumstances of the case, more
so, at this appellate stage. He also draws my attention to the
order, dated 28.08.2023, passed by the Ld. Court below,
thereby dismissing the application under Order VI, Rule 17,
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.13 of 23
DOD : 26.06.2025
CPC, moved by the then plaintiffs, which according to him,
has attained finality as the application of the then plaintiffs for
grant of interim relief was dismissed, in the year, 2013 and
particularly, on 12.09.2013 and by that amendment, as sought
before the Ld. Trial Court, the then plaintiffs wanted to
incorporate prayer of removing boundary wall constructed by
the then defendants, through points A & B. It is, further,
contended that the Ld. Court below had decided the
application on the basis, that the then plaintiffs could have had
moved that application for amendment, even before the trial
had commenced and as such they had failed to show due
diligence in filing the application, though, the suit was filed in
the year, 2012, and the interim application was decided in the
year, 2013, but the amendment application was moved, as late
as on 12.07.2023 only.
19. I have, carefully, considered the respective submissions,
made by the Ld. Counsels for the parties, as above and it is, by
now, more than crystal clear and established on record that the
Khasra No.106/2, (1-19), & 207/2min, (4-05), are not acquired
by the Union of India and land comprising, therein, has, not
been, transferred to DJB, so far, further, there is no dispute
about their ownership between the parties. Ex.PW4/A, is a
document, produced by Sh. [Link], who is the translator,
having had translated the copy of the certified copy of the
Khasra Girdawari for the year 1975-76 of Village Kondli,
Delhi and the earlier record of above Khasra Girdawari for the
year 1974-75, Village Kondli, Delhi, also records the name of
the ancestors of the then plaintiffs/present appellants, but the
document is in Urdu and the English translation has been filed
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.14 of 23
DOD : 26.06.2025
by the then plaintiffs on the directions of the Court, given on
26.08.2016. There is not much cross-examination with regard
to this document nor the credentials of the PW-4, as Translator
has been demolished in any ways, and as such, the document
appears to have sufficiently been proved to conclude the
existence of “Sadak Jadeed No.1”, at one side / adjacent to the
Khasra No.106/2, (1-19).
20. Sh. Naresh Sharma, Ld. Counsel has drawn my attention to
the Ex.PW3/E, which is the copy of the ‘Aks Sijra’ with seal
of the Land Acquisition Collector and he tries to point out that
the Khasra No.207/2min and 106/2 are adjacent to each other
and they are outside the STP Plant, of DJB, however, there is
no quarrel about this proposition. He also relies on Ex.DW1/6,
which is a Satellite Image, but that by itself, does not throw
any light on the matter. The Ld. Counsel for the then
plaintiffs/present appellants, earnestly pleads that Section 107,
sub-Section (2), CPC, empowers this Court with the same
powers for performing as nearly as may be, the same duties as
are conferred and imposed by this Code on Courts of original
jurisdiction in respect of suits instituted therein. He already
has, drawn my attention to the provisions of Order 43, Rule
1A, CPC. On the other hand, Sh. Sharma submits that the suit
of the then plaintiffs, has, already, become infructuous and no
relief can be granted to them. On a careful consideration of
above submissions, it, appears, that the suit of the then
plaintiffs, in-deed, has, become infructuous, however, not the
present appeal. It, further, clearly, appears, to me that even the
Order, dated 28.08.2023, thereby, declining the amendment
application, seeking the relief of mandatory injunction, by the
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.15 of 23
DOD : 26.06.2025
then plaintiffs, was rightly, decided and dismissed on account
of lack of diligence on the part of the then plaintiffs and
further, inordinate delay in moving the application, more so,
the Order, has, not been, challenged and has, attained, finality,
however, the Order, dated 12.09.2013, was passed on a prima
facie view of the matter, having had no effects on the merit of
the case and as such, the Order is of no consequences, except
for denying the interim relief, as declined by the Order and in
this view of the matter, there is no occasion to seek resort or
press into service the provisions of Order 43, Rules 1-A, CPC
in the matter and now, only the impugned Order is under
challenge in the present appeal.
21. Sh. Sharma, also draws my attention to the various
photographs, placed on record and some of them show
existence of some ‘Nallah’, passing through and adjacent to
the land in question and for this, both sides have filed
photographs and they are Ex.DW1/8 to Ex.DW1/22, on behalf
of the then defendants and Ex.PW1/9 to Ex.PW1/11, on behalf
of the then plaintiffs, however, the Nallah, which is said to
have obstructed, as falling in between the road and the
adjacent land, making use of the road impossible, prima facie
appears to be of not more than 3-4 feets. However, Sh.
Sharma, concedes that the same may not be called a Nallah,
but definitely a ‘Nallhi’ and he, then, challenges the
Ex.PW1/10, which is the rough site-plan and his submission is
that even the site-plan is a bogus document, as though, it
mentions about points A, B, but, it nowhere shows anything
encircled in green, though, prayer made in the plaint states that
land of Khasra No.106/2, (1-19) & 207/2min, (4-05), have
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.16 of 23
DOD : 26.06.2025
been shown in the green, however, the Ex.PW1/10, does not
show anything in green, further, no measurement of the
‘Raasta’, has, been, mentioned in the Ex.PW1/10 and that
itself shows the malafide on the part of the then plaintiffs, as
under the garb of having their access from roadside, they want
to encroach the land of STP, though, they never have used this
‘Raasta’ and has, been, using the access to their land from
Village side only, on the other hand, Sh. Mukund contends
that the then defendants never disputed the Ex.PW1/10
seriously, else, they could have had proved their own site plan
to discredit Ex.PW1/10, which they failed to do, showing that
there was no serious dispute about the correctness of the site
plan, i.e., Ex.PW1/10.
22. It, appears, that the document Ex.PW1/10 was tendered in
evidence by the PW1, Sh. Dhyan Singh, on 26.03.2015 and
the relevant cross-examination of PW1, done on 02.09.2015,
runs as following :-
“Q. I am putting it to you that in a private plan you did not
show the khasra No. but only the property No. and the Khasra
Nos. were shown in aks-sazra only ?
Ans. I have shown the Khasra no. in the said site plan
Ex.PW1/10 after taking information from halka patwari and the
said patwari hails from SDM Office. I got the said site plan
prepared from architect/engineer at Tis Hazari. The said halka
patwari did not accompany me at the time of preparing of the
said site plan.
It is wrong to suggest that I had prepared the said site plan
after consultation with halka patwari.
I have prepared my site plan [Link]-1/10 after seeing the
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.17 of 23
DOD : 26.06.2025
aks-sazra of the government plan. It is wrong to suggest that the
aks-sazra plan of the government is not matching with my site
plan.
It is wrong to suggest that I am deposing falsely. ”;
Evidently, the above cross-examination does not shatter the
deposition of the witness in any manner and the PW1, has,
clearly, stood to his grounds, as far as, this aspect of the matter is
concerned and it can, safely, be taken, that the site-plan, i.e.,
[Link]-1/10 stood sufficiently, proved to have reflect of the site,
if not the actual site, itself.
23. The effect of the taking a different stand, by the DW1, in his
evidentiary affidavit, proved as Ex.DW1/A on 22.09.2023, is,
clearly, appears, it to be beyond pleadings, on one hand and
simultaneously, demolishes the stand of the then defendants,
that there is no land available, comprised in Khasra No.106/2,
(1-19), as well as, 207min, (4-05), Village Kondli, from their
initial stand, taken in the paragraph No.1 of their written
statement, in reply, on merits, to the effects, that the then
plaintiffs were not owner of any part of the land, comprised in
Khasra No. 106 and are Khasra No.207 of the Village Kondli,
Delhi. As a matter of fact, there is no Khasra No.106/2 or
207/2, as stated by the then plaintiffs. The correct Khasra Nos.
are 106 & 207/1 and the land in said Khasras stood acquired
and given over to Delhi Jal Board. Obviously, this initial stand
was taken by the then defendants on the assumption that the
Khasras No. 106 & 207/1, completely, stood acquired under
the Award No.2/78-79, dated 08.05.1978, of Village Kondli,
Delhi. Now, it becomes clear that these all had the effects of
obfuscating the entire scenario at the stage of initial pleadings,
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.18 of 23
DOD : 26.06.2025
as well as, during the trial before the Ld. Trial Court. Sh.
Mukund’s contention is that a smoke screen was created to
mislead the Ld. Court, below, successfully, and in my view
this is, sufficiently, clear from the trial court records. The Ld.
Trial Court, in its wisdom, granted an interim measure on
16.03.2012, thereby, directing the then defendants to leave a
passage of 10’ width between points A, B, as shown in the site
plan, till further orders and ultimately, dismissed the interim
application, on merits, on 12.09.2013. However, the document
Ex.PW4/A was filed by the then plaintiffs in the case, as early
as on 15.01.2013, itself, along with Ex.PW3/A etc. should
have been brought to the notice of the Ld. Court, below, at the
time of disposal of the interim application and in any case, at
the time of final disposal, but the same could not attract the
attention of the Ld. Court, below, somehow, be that as it may,
but, it, clearly, points out the gross injustice done to the then
plaintiffs with the ensuing scenario that their suit had already
become infructuous and in this view of things, the then
plaintiffs/present appellants appears to have had shown a
prima facie case of having a right to access to the ‘Raasta’,
shown at points A, B, in the site-plan, which was blocked
during the pendency of the suit, albeit, leaving only a 10’ wide
passage and thereafter, the dismissal of the interim application,
on merits, the passage, has, been, completely blocked and iron
grills, have, been, erected there, to safeguard STP, though, on
the land of the passage, assuming it to be a part of the acquired
land, which cannot be blocked by the DJB, as the same,
admittedly, opens into a main thoroughfare / Road, for which,
general public, has, a right to access, unless barred by law,
even though, there might be some other points of
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.19 of 23
DOD : 26.06.2025
access/Raasta to reach a particular point or to someone’s land
and in this scenario, the basic principle of trial of civil suit, as
described, as “alegeta at probata” becomes applicable that is to
say that the parties either the plaintiff or the defendant has to
allege all the material facts in their pleadings and during the
trial those facts need be proved. If there is absence of material
facts in the pleading and if any amount of evidence is led on
those facts, the Court would not consider such evidence (Ref.
Anatula Sudhakar v. [Link] Reddy, AIR 2008 SC 2033).
Thus, the entire testimony of the DW-1 has to be discarded for
the reasons, it going beyond pleadings, on the one hand and
not being of any use on the other, inasmuch, as no other point
remains in dispute, now.
24. Sh. Naresh Sharma, has, forcefully, argued that the
demolition of the iron grill / Wall shall unnecessarily give
leeway to the unscrupulous persons and would further result in
encroachment of public land, besides, involving the
unnecessary expenses and further loss of the amount already
invested in fixing of the iron grill and as such, the factor of
irreparable loss being caused to the present respondents, on the
other hand, the present appellants would not suffer in any
manner, as they already have a right of way from the Gali
passing through beside Khasra No.207/2. On a comparison,
the then plaintiffs/present appellants appear to have had
suffered more loss, as their right to access to the main road has
completely been taken away on the wrong assumption, on the
one hand, and further, they have been made to litigate
unnecessarily, for a considerable period of time, as the suit
was filed, as early as, in the year 2012, itself, and as such, I am
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.20 of 23
DOD : 26.06.2025
of the view that the factors of irreparable loss is also in favour
of the then plaintiffs/present appellants, as they have
successfully, succeeded the existence of a right in their favour.
25. Lastly, the Ld. Counsel for the present respondents, have,
argued that there is no balance of convenience, lying in favour
of the then plaintiffs/present appellants, especially, now, in the
particular situation of the passage, being already blocked, and
as such, no relief can be granted to the present appellants. I
have, carefully, considered the question of balance of
convenience and the true test, in this regard, is that which of
the side would suffer more loss, in case, the relief is not
granted, or least loss, if the relief is granted, under the facts
and circumstances of a particular case and in order to do
justice with the respective claims of the parties, The concept
of the balance of convenience is rooted in the principles of
equity and fairness, aiming to ensure that the courts decision
does not cause disproportionate harm to either party and, the
question of relief has to be seen in the rightful perspectives
and can, also suitably, be moulded, if required, under the facts
and circumstances of a case within the permissible legal limits
and more so, where the relief of injunction is prayed for, the
Court can always mould a relief to suit a particular right or to
remedy a particular situation, on such terms, as deemed fit and
my this view finds favour from the decision of Hon’ble High
Court of Rajasthan, in the case of Rajender Bahadur Singh
Chouhan (Died) through LRs v. Prakashwati & Anr.,
2023, (4), Civil Court Cases, 620, (Rajasthan), holding
therein that the Court is empower to mould the relief in the
facts and circumstances of the case and further there are
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.21 of 23
DOD : 26.06.2025
umpteen decisions of the Superior Courts, empowering so the
Courts for meeting the ends of justice, in accordance with law.
Thus, the appeal has to be allowed essentially on merits and
the impugned order is to be reversed and set-aside as not
sustainable in law, while issuing the following directions and
granting the relief to the present appellants/the then plaintiffs,
inasmuch as, now the cobwebs are removed and things have
become clear and it is evident that in a surprising manner the
then defendants, being a Govt entity, initially, claimed in their
written statement that the entire Khasra No. 106 and Khasra
No. 207 were acquired and put in their possession as the same
was being handed over to them. However, after the
evidence/(s), were led by the parties, before the ld. Court
below, the existence of Khasra No. 106/2 and Khasra No.
207/2 is proven. In the evidentiary affidavit of the DW1, the
then defendants changed their stand that Khasra No. 106/2 and
Khasra No. 207/2 is outside the purview of the plant and they
have no concern with that, therefore, it is evident that the
“Wall/Iron Grill” was erected on the “Rasta/Road” by the then
defendants, assuming that entire land, consisting of Khasra
Nos. 106 and 207, of Village Kondli, Delhi, was acquired,
therefore, the “Wall/Iron Grill”, which is the subject matter of
the dispute, between the parties was wrongly, carved out by
the then defendants. The “Wall” was got erected with
absolutely wrong assumption and representation to the ld.
Court below. It is, therefore, directed that the then
defendants/present respondents shall restore the position
‘status quo ante’, as on the date of the filing of the suit, i.e., the
then defendants/present respondents shall remove the
“Wall/Iron Grill”, erected during the pendency of the suit
before the Ld. Court below and remove the wall/iron grill, at
& shown between points A & B, of the site plan, i.e.,
Ex.PW1/10 and ensure the access, therefrom to the then
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.22 of 23
DOD : 26.06.2025
plaintiffs/present appellants to their land in khasra No. 106/2,
village Kondli, Delhi, at their own expenses, within a month
from the date of this order.
26. The appeal is, therefore, accordingly, allowed with the
direction and the relief, granted, as above, while reversing and
setting-aside, the impugned judgment and decree, dated
29.01.2024, with costs of the appeal, allowed to the present
appellants. Decree-Sheet be prepared, accordingly. A copy of
this order be sent to the Ld. Trial Court, concerned, along with
TCR. Appeal file be consigned to Record Room.
Announced in the open
Court on 26.06.2025 (Sanatan Prasad)
District Judge-02, East District,
Digitally signed
by SANATAN Karkardooma Courts, Delhi.
SANATAN PRASAD
PRASAD Date: 2025.06.26
11:06:37 +0530
RCA DJ No. 14/2025
Ajab Singh & Ors. Vs. Delhi Jal Board & Anr. Page No.23 of 23
DOD : 26.06.2025