Delhi District Court
Khatri Hotels Pvt Ltd vs Union Of India on 28 March, 2009
IN THE COURT OF Dr. KAMINI LAU: ADDL.
DISTRICT JUDGE - 13 (CENTRAL): DELHI
Suit No. 473/2004 (2000)
1. Khatri Hotels Pvt Ltd
Aruna Asaf Ali Road,
80/9, Kishangrah,
Vasant Kunj, New Delhi
2. Shri Lal Chand
S/o Shri Mam Raj
R/o village Kishangrah,
Vasant Kunj, New Delhi
......... Plaintiffs
VERSUS
1. Union of India
through its Secretary
Ministry of Urban Development
Nirman Bhawan,
New Delhi.
2. Delhi Development Authority
through its Vice Chairman
Vikas Sadan, INA, New Delhi
.......Defendants
Date of Institution: 15.2.2000
Arguments heard on: 9.3.2009
Date of Decision: 28.3.2009
: 1 :
: J U D G M E N T :
This is a suit for declaration, mandatory and
permanent injunction filed by the plaintiffs against
Union of India and DDA initially filed before Hon'ble
High Court of Delhi which later on the ground pecuniary
jurisdiction transferred to Learned District Judge: Delhi.
Briefly the facts relevant to the disposal of the said suit
are as under:
BRIEF FACTS:
Plaintiff's Case:
The plaintiff No. 1 is stated to be a company duly incorporated under the provisions of the Companies Act, 1956. Shri Harbir Singh Khatri is the MD of the company and is well conversant with the facts of the case and duly authorised to sign and verify the plaint and institute the suit on behalf of the company. The : 2 : plaintiff no. 1 is a family company of the sons of the plaintiff no. 2. Plaintiff no. 2 alongwith his brothers is the owner / bhumidar of the property forming part of Khasra No. 2728/1674/2 and 2928/1674/3 having purchased the same vide registered sale deed dated 10.10.1963 the property situated in the Revenue Estate of village Kishangrah, Tehsil Mehrauli, New Delhi i.e the suit property. One Shri Ram Jas and others including Shri Rattan Lal and Smt. Kastoori purchased the land bearing Kh. No. 2728/1674 measuring 13 bighas 17 biswas from the recorded owners who were in the possession of the same as per the Revenue Records.
Shri Rattan Lal and Smt. Kastoori sold and transferred all their rights of ownership and possession in favour of Shri Parma Nand, Shri Tej Nath, Shri Tej Parkash, Shri Gokal Chand and Shri Ram Dhan in Kh. No. : 3 : 2728/1674/2 ( 3 bighas 3 biswas ) and Kh. No. 2728/1674/3 ( 1 bigha 1 biswas ) out of Khewat No. 164 Khatoni No. 436 as documents registered on 17.10.1959 with Sub Registrar. Shri Om Parkash and Mahinder Pal sons of Shri Parma Nand, Shri Tej Nath, Shri Tej Parkash, Shri Gokal Chand and Ram Dhan sold and transferred all their rights in respect of above said land in favour of Shri Rattan Singh, Shri Lal Chand and Shri Surat Singh sons of Shri Mam Raj in equal share vide documents registered on 15.10.1963 with Sub Registrar and this property consists of two built up rooms with tin sheds bounded by a boundary wall of stones and possession of same was handed over to purchaser and they become rightful owner and same was used for his residence. According to the plaintiff no. 2 his sons had grown up and suit property being situated at an : 4 : advantage place in the village towards a wide road, they floated a company in the name of plaintiff no. 1 and started the business restaurant in a part of the property after obtaining all necessary sanctions from MCD, Delhi Police, Delhi Tourism under the name and style of "Sahara Restaurant" after the name of their grand mother "Sahara".
It is submitted that in the year 1990, defendant no. 2 tried to dispossesses the plaintiffs and demolish the suit property on the ground that same belonged to it and pursuant to same plaintiff has filed a suit bearing no. 2576 /1990 in which exparte interim injunction was granted on 20.08.1990 and same was confirmed on 14.7.1998 by hon'ble High Court and that suit is stated to be now pending before learned ADJ, Delhi. During the pendency of that suit, plaintiffs applied for a copy of Kh.
: 5 : Girdwaris and were shocked to learn that said suit property vested in Gaon Sabha and plaintiffs were also not recorded in Khasra Girdwaris.
According to the plaintiff no notification under Section 7 of the DLR Act 1954 has been issued in respect of suit property. Since the land of suit property does not vest in the Gaon Sabha under any requisite or valid notification etc. and nor its possession was ever taken by Gaon Sabha and nor any suit for ejectment was filed against the predecessors in interest of the plaintiffs, Gaon Sabha did not acquire any right or interest or any nature, whatsoever in the suit property. It is stated that as the suit property is never in the possession of Gaon Sabha or Central Government and entries in the revenue records are false, wrong and illegal, defendant no. 1 had no power to issue : 6 : notification under Section 507 MCD Act. The plaintiffs requested the halqa patwari and kanoongo to make correct entries in respect of suit property on which they refused and asked the plaintiffs to approach the higher authorities.
The restaurant of plaintiffs has acquired a goodwill and the competitors of the plaintiffs and other neighbours out of jealously had been making false and mischievous complaints to the defendants with an intent to create an impediment in the plaintiffs carrying on their business. The construction of the suit property is stated to be old one and except for making the same habitable and worthy of an eating house, no structural changes have been made therein. Even otherwise the construction the site is well within the building bye laws.
: 7 : It is contended that on 11.2.2000 police officials from local Police Station came to suit property for survey of same and plaintiffs were shocked to learnt that defendants had passed orders for demolition of the suit property on the ground that orders in the pending suit did not cover the restaurant as the name of Sahara Restaurant was not mentioned in the order and the demolition was scheduled for 15.02.2000.
The plaintiffs is now seeking a declaration that the entries made by the defendants in the Revenue Records in respect of land comprised in Kh. No. 2728/1674/2 and 2728/1674/3 situated in the Revenue Estate of Mehrauli, Village Mehrauli Kishangrah, Tehsil Mehrauli, New Delhi are wrong and illegal. The plaintiff is also seeking a decree of mandatory injunction directing the defendants to correctly record the : 8 : ownership and possession of the plaintiffs in the Revenue Records being maintained and in custody of defendant no. 2 and a decree of permanent injunction in favour of the plaintiffs and against the defendants restraining the defendants, their servants, agents and representatives from demolishing the super structure, sealing or interfering in any manner in the possession of the plaintiffs or form running of the Sahara Restaurant from the property bearing Kh. No. 2728/1674/2 and 2728/1674/3 situated in the Revenue Estate of Mehrauli, Village Mehrauli Kishangrah, Tehsil Mehrauli, New Delhi.
Defendant's Case:
It is evident that the right of defendant no. 1 UOI to file written statement was closed vide order dated 1.2.2002.
: 9 : The defendant no. 2 DDA in their written statement have raised a preliminary objection that the plaintiff has not come to the court with clean hands and has concealed material facts and there is also no cause of action against the defendant due to which reason the suit is not maintainable and is liable to be dismissed as this court has no jurisdiction to try the same. It is pleaded that the suit land is a government land as same has been placed at the disposal of DDA vide notification no. SO2190 dated 20.08.1974 to develop the land as 'green land' and there is no challenge to the said notification. It is further pleaded that the suit of the plaintiff is barred by the provisions of the Specific Relief Act and also as per Article 58 of the Limitation Act according to which a declaration can be sought within three years from the date when the cause of action first arose.
: 10 : On merits it is pleaded that the land in question never belonged to the plaintiffs and rather belongs to the Gaon Sabha and on urbanization of village Mehrauli, the same was transferred to the Central Government. It is stated that there was no construction on the land in 1954 or no built up Abadi property nor the suit land fell in built up abadi. The land in question is stated to be vesting with the Central Government for using as Green Area and it is the plaintiffs who are illegally using the same having constructed a Restaurant after trespassing in the same which they are using under the name of Sahara Restaurant.
In the replication the plaintiffs have denied all the allegations made against them and have reaffirmed what they have earlier stated in the main plaint.
: 11 : ISSES FRAMED:
The record reveals that the vide order dated 6.4.2005 following issues were framed by the Ld. Predecessor of this court:
1. Whether the plaintiff no. 2 alongwith his brother is the owner and in possession of suit land ?
2. Whether the suit land is a government land as alleged in para no. 1 of the preliminary objections?
If so, whether the suit is liable to be dismissed on this ground?
3. Whether the suit is within limitation ?
4. Whether the suit is barred under Order 2 Rule 2 CPC?
5. Whether the plaintiff has not come to the court with clean hands and is not entitled to the equitable relief of injunction as stated in para VI of the : 12 : preliminary objections?
6. Whether the suit land is a government land was placed at the disposal of the DDA under Section 22 (1) of the DDA vide notification dated 20.08.1974?
7. Relief.
EVIDENCE:
The Patwari, Tehsil Hauz Khas, Sh. Bhanwar Singh has been examined as PW1 and in his examination in chief he has stated that as per record pertaining to Khasra No. 2728/1674/2 measuring 3 bigha and 3 biswas and Khasra No. 2728/1674/3 measuring 1 bigha and 1 biswas situated in the revenue estate of Village Mehrauli, Delhi was owned by Sham Lat Thok Chenna. According to the witness Sham Lat Thok Land belongs to individual persons whereas Sham Lat Deh land is : 13 : common land belonging to the entire village. He has testified that the aforesaid land was not a Sham Lat Deh land. As per the orders of Revenue Assistant, the said land was partitioned on 14.12.1991. After partition, the land in Khasra No. 2728/1674/2 measuring 3 bigha and 3 biswas fell to the share to the of Smt. Kasturi, widow of Sh. Jhuman Singh and land in Khasra No. 2728/1674/3 measuring 1 bigha and 1 biswas fell in the share of Rattan Lal, S/o Tirkha. Certified copy of the mutation is Ex.PW1/A. After the partition, Rattan Lal and Smt. Kasturi became the owner of the aforesaid land. In his crossexamination, he has deposed that he had not brought the revenue records of khasra numbers which he had stated in his examination in chief. He deposed that he can produce record of aforesaid khasra numbers and was directed to produce the said record.
: 14 : But he was unable to bring the record of Khasra No.2728/1674/2 measuring 3 Bighas and 3 Biswas, Khasra No. 2728/1674/3 measuring 1 Bigha and 1 Biswas as stated in his examination in chief. However according to the witness, the certified copy of the revenue record pertaining to these Khasra numbers on record which is Ex.PW1/A which was issued from their office. He has however deposed that he had no personal knowledge of this case as well as the said documents and is also not aware as to whether said khasra was transferred to DDA vide notification.
Patwari, Ram Mahesh, LM South West Zone, New Delhi has deposed that he had seen minutes dated 27.05.2003 signed by the then Vice Chairman, DDA and the then Commissioner, MCD regarding the meeting held in the Chamber of Vice Chairman of DDA in : 15 : reference of CWP titled Partap Singh Vs. DDA and others, the copy of which is Ex.PW2/1. In his cross examination, he has deposed that he was not present in the meeting held on 27.05.2003. He has further deposed that he had no personal knowledge about the said meeting and the document is Ex.PW2/1 which was not signed in his presence.
Sh. Harbir Khatri has been examined as PW3 and in his examination in chief by way of affidavit he has clarified that he had exhibited the documents in his affidavit from Ex.PW1/1 to Ex.PW1/20 which may be read as Ex.PW3/1 to Ex.PW3/20 and therefore the exhibits on the documents have been allowed to be corrected.
In his crossexamination he has denied that the plaintiff has no right, title or interest in respect of suit : 16 : land or that the plaintiffs are the encroachers on the government land. According to him the suit premises fall in Khasra No. 2728/1674/2 measuring 3 Bighas and 3 Biswas and Khasra No. 2728/1674/3 measuring 1 Bigha and 1 Biswas situated in the abadi of village Kishan Garh, Mehrauli. He has further deposed that the said khasra numbers are not the abadi khasra numbers nor they belong to gram sabha. He has further denied that entire land of village Mehrauli Kishan Garh is vested in the Central Government and has stated that their land in the aforesaid khasra number was not a Sham Lat Deh land and it was not vested in the gram sabha and as such it was not transferred to the Central Government. He has further denied that the Central Government placed the sued land at the disposal of DDA Under Section 22 (1) of DDA Act through notification dated 2081974 for the : 17 : purpose of its development. He has further denied that the present suit is barred by law. He has further denied that Rattan Lal and Kasturi Devi could not pass any title to them or their predecessor or that suit land was Nazul land and no one was its recorded owner. According to him when they purchased the suit land, it was built up and had constructed houses. He has further denied that the name of the persons from whom they had purchased the suit property were not recorded in the revenue record or that no construction was existing prior to 1990 or when they purchased it and according to him the construction is mentioned in the sale deed. He has also testified that the name of the person from whom they had purchased the suit land was present in the revenue record. He has further deposed that in the record of revenue, i.e Khasra girdhawri or Jama bandhi their : 18 : names are not there and has denied that plaintiff no. 2 was not the owner of the suit land.
PW3 has denied that suit land was vested in the gram sabha being land of common utility/waste land and has stated that the land of common utility/waste land was Sham Lal Deh land which was vested in the gram sabha but the suit land was not the Sham Lal Deh land and was an individual land, therefore it was never vested in the gram sabha. The witness admits that Notification dated 28.05.1966 under Section 507 of NDMC Act and notification dated 20.08.1974 under Section 22(1) of DDA Act was not challenged and according to him the said notifications have not been challenged as they did not pertain to the suit land. He has further denied that they had not filed the revenue record after 1963 in the name of Lal Chand and his brother in the suit land.
: 19 : According to PW3 the plaintiff came to know about the vesting of suit land in gram sabha in 1998 when they obtained the revenue record. It is admitted that they had filed a suit for injunction against MCD and DDA in the year 1990. He has further denied that the status of plaintiff is unauthorised. He is not aware that in Khatuni paimaish for the year 1980 the suit land was shown in the ownership of DDA. He has further denied that plaintiffs are not the owners of suit property or that plaintiffs are not in lawful possession of the suit property or that the plaintiffs are in unauthorized possession of the suit property or the suit land is not in the old abadi of village Kishan Garh. He has further denied that in his affidavit he had wrongly stated that the suit land was not a Sham Lal Deh land or that vesting of suit land in the gram sabha was legal.
: 20 : Sh. G.S. Meena, record keeper, LAC, South, MB Road, Saket has been examined as PW.4 and has produced the record pertaining to the acquisition award showing that Khasra of Old Abadi of village Mehrauli has not been acquired vide the aforesaid award. In his cross examination he has deposed that he had no personal knowledge regarding Ex.PW4/1. He has admitted that in his presence no proceeding for acquisition of land had been carried out.
He has further admitted that he was not a party nor had dealt with the acquisition of land vide said award and certified copy of award has not been issued or signed by him. He has denied that he has not worked under Sh. J.S. Sharma, SDM but admits that he has no knowledge about Ex. PW4/2.
: 21 : Sh. Ram Mahesh, has been examined as DW2 and in his examination in chief by way of affidavit has exhibited certain documents which are Ex. D2W1/1 to D2W1/4, in his cross examination he has deposed that he was not present in the meeting held on 27.02.2003 and has no personal knowledge about the said meeting and the document Ex. PW2/1 and same was not signed in his presence. He has admitted that he was not aware whether as per the order of Revenue Assistant dated 14.12.1991 (year appears to have been wrongly mentioned/ typed), the suit land was partitioned and land bearing 3 bigha 3 biswa fell to the share of Smt. Kasturi widow of Zuman Singh and land in Khasra no. 2728/1664/3 fell in the share of Sh. Ratan Lal and has no knowledge whether the Smt. Kasturi and Sh. Ratan Lal sold the land to Om Parkash, Mahender Pal s/o Sh.
: 22 : Parmanand, Tej Nath, Tej Parkash, Gokal Chand and Ram Dhan and all these thereafter sold the property to the plaintiff. He has denied the suggestion that the plaintiffs are the actual owner and in possession of the suit land since then. He has further denied that the land never belonged to Shyam Lat Deh and it was never vested in the Gram Sabha. The witness has denied that since land was not a Gram Sabha land, it could not have vested in the Central Govt. on its urbanization and the central government could not transfer the same to DDA vide any notification. He has admitted that in notification Ex. D2W1/2, no khasra number of land transferred to DDA has been mentioned. He has further admitted that said notification pertains to Nazul land and not land belonging to individuals. He has further denied that DDA has got no right, title or interest related to suit : 23 : land. He also admitted that under the revenue laws, Khatoni/ Zamabandi are the documents of ownership/title. He has denied that the suit land is a village abadi land and the record of the DDA is wrong and is in contradiction of the revenue record. The witness has admitted that he was not aware whether before including any individual land, for development purposes and showing the same in development plan, Govt. has to acquire the same as per law and suit land was never acquired through any award. According to him it was Gram Sabha land and he does not know that only Shyam Lat Deh land vest in the Gram Sabha, not the individual land. He denied that the plan Ex.D2W1/4 is wrong and he is unable to tell the number of houses situated therein. The witness has also admitted that he had seen the suit land, where a restaurant has been : 24 : constructed but has not given any report regarding construction of the property either in the court or in the department. He admits that at the time the local commissioner had visited the suit property he was present at the spot. He has denied that the suit property had been constructed before 1951 and he was not aware whether the plaintiffs are running the restaurant in the suit property as per law under the licence issued by various authorities. According to him there was no construction on the suit land in the year 1954 and 1957 and states that his affidavit is on the basis of suit filed by the plaintiff in the year 1990. He had admitted that in the said suit, it was mentioned that there was construction in the suit property in the year 1954. The witness has denied the suggestion that his affidavit is false and he was not aware about the facts of the case. He has also : 25 : admitted that the entire construction in Kishan Village is without plan and he was not aware whether the construction in the village were raised even prior to coming to force of MCD Act and there used to be no plan sanctioned in the village. He has also admitted that as per the earlier plaint there was construction in the suit property in the year 1954. He further denied that plaintiffs are the real owners of the suit property and they are not trespassers and the documents Ex. D2W1/1 to 4 was wrong.
This court has while disposing off the application filed on behalf of the defendants for permission to file additional evidence and documents, vide a detailed order dated 26.2.2008 directed the production of the following records:
: 26 :
1. The reply of the Dy. Director LAB, (Resi) dated
15.2.2008.
2. Notification dated 20.8.1974;
3. Notification dated 3.6.1966;
4. Copy of the minutes of meeting held between the ViceChairman DDA and other officials alongwith MCD on 27.5.2003;
5. Attested copy of the policy file of Kishan Garh;
6. List of 148 persons of Kishan Garh;
7. List of 117 eligible persons;
8. List of plots for which lease deed has been executed;
9. List of nontraceable files, reconstructed by DDA.
10. Copy of Award no. 80E/7071.
Pursuant to the said orders the DDA has examined their Assistant Director (LSB) as D2W2. In : 27 : his examination in chief by way of affidavit he has placed on record attested copy of the policy file regarding execution of Lease Deed which is Ex.D2W2/1; List of houses of village Kishangarh, Mehrauli in 148 numbers which is Ex.D2W2/2; List of 117 eligible persons occupying the gram sabha land in village Kishangarh which is Ex.D2W2/3; list of plots in which lease deed has been executed in respect of Kishangarh in 26 members which is Ex.D2W2/4 and the list of 37 persons whose records were not available in DDA which is Ex.D2W2/5.
Further the Patwari Ram Tirath has also been examined as court witness who has placed before this court the Jamabandi for the year 194950 for village Mehrauli attested copy of which is Ex.CW1/1 and the attested copy of the Khatauni for the year 196465 which : 28 : is Ex.CW1/2.
It is further evident that the relevant documentary record of demarcation of boundaries of the village Kishangarh has not been placed on record despite repeated opportunities in this regard. FINDINGS:
I have heard the arguments advanced before me by the counsels for both the parties and have gone through the records of the case. My findings on the various issues are as under:
Issue no. 1 Whether the plaintiff no. 2 alongwith his brother is the owner and in possession of suit land ?
The case of the plaintiff no.2 is that he alongwith his brothers is the owner in possession of the suit land. He is seeking a declaration to the effect that : 29 : the entries made by the defendants in the revenue records in respect of the land comprised in Khasra No. 2728/1674/2 and 2728/1674/3 is situated in the Revenue Estate of Mehrauli, Village Mehrauli Kishangrah, Tehsil Mehrauli, New Delhi are wrong and illegal. The plaintiffs have further sought directions by way of mandatory injunction to the defendants to correct the record of ownership and possession of the plaintiffs in the Revenue Records being maintained and in custody of defendant no. 2 and also seeks to restrain against the defendants, their servants, agents and representatives from demolishing the super structure, sealing or interfering in any manner in the possession of the plaintiffs or from running of the Sahara Restaurant from the property bearing Khasra No. 2728/1674/2 and 2728/1674/3 situated in the Revenue Estate of Mehrauli, : 30 : Village Mehrauli Kishangrah, Tehsil Mehrauli, New Delhi.
I have considered the detail arguments advanced before me, both oral and written and also the documents placed before me including the revenue records. Ld. Counsel appearing on behalf of the plaintiff has vehemently argued that the plaintiff no. 2 alongwith his brothers is the owner and in possession of the land in question which fact has been proved from the various documents of title which are Ex.PW/3/3 to Ex.PW3/4, the mutation in his favour which is Ex.PW2/5 and also the revenue documents which are Ex.PW3/5A and Ex.PW3/7 which shows that the plaintiff is the owner of the land and the plaintiffs are running a Restaurant as evident from the documents Ex.PW3/8 to PW3/12. The case of the defendants on the other hand is that the suit : 31 : land is a government land. In this regard the defendants have placed their reliance on the notification dated 3.6.1966 issued under Section 507 of the DMC Act which is Ex.D2W1/1 giving the list of localities which ceased to be regarded as rural area showing that village Kishangarh Mehrauli in the revenue estate of Mehrauli was urbanized on account of the aforesaid notification.
The defendants have further placed their reliance upon the Central Government notification under Section 22 (1) of the DD Act dated 20.8.1974 which is Ex.D2W1/2 placing the aforesaid land at the disposal of the DDA for maintaining as green. Ld. Counsel appearing on behalf of the defendant DDA has also placed his reliance on the findings of the Ld. Civil Judge in the case of Lal Chand Vs. MCD filed by the plaintiff no. 2 bearing Suit No. 211/02/90 which had been dismissed vide order dated : 32 : 3.3.2003 as admitted by both the parties. However, it is apparent that against the said order an RFA bearing no. 651/03 had been preferred by the plaintiff no. 2 which was disposed off by Delhi High Court on 24.11.2008 with an observation that nothing stated in the impugned judgment and decree dated 3.3.2003 pertaining to the issue of title would be construed as a binding upon the parties, copy of which order dated 24.11.2008 is also present on record.
It has been vehemently argued by the Ld. Counsel appearing on behalf of the defendant that the land in question was a Shamlath Deh land till 1954 in the revenue records and after the enforcement of Delhi Land Reforms Act the land was vested in Gaon Sabha and as a consequence the villagers were considered as unauthorized occupants. In so far as the residents of : 33 : Shamlath Deh land prior to 1960 are concerned a lease agreement had been executed in their favour whereas the present plaintiffs are unauthorized occupants who have raised unauthorized constructions without permission of the competent authority and by contravening the building byelaws. The Ld. Counsel has further argued that the village in question had been urbanized in the year 1966 and in the revenue records the plaintiff has not been shown as the owner nor the said land has been shown as a private land and therefore, as per the settled law a person cannot pass a better title than what he himself possesses. It is stated that the persons from whom the plaintiffs have allegedly purchased the property were not having ownership right over the land in question and therefore, the plaintiffs having stepped into their shoes cannot be stated to have any ownership : 34 : rights over the property in question.
I have considered the submissions made before me and the evidence adduced by the parties. The case of the plaintiff is that he is owner in possession of property forming part of Khasra No.2728/1674/2 and Khasra no. 2728/1674/3 having purchased the said land vide registered sale deed which is Ex.PW3/4. It is further his case that there was a construction of a boundary wall, two rooms and tin shed which was an old construction and he had been residing alongwith his family members in the same and also when the defendants had tried to dispossess him he had filed a suit for permanent injunction in the year 1990 and later when he came to know that the entries in the revenue records did not show him as owners in respect of the said khasra no. The case of the plaintiff is that his sons had grown : 35 : up and they had floated the plaintiff no. 1 company and started running a restaurant under the name and style of Sahara Restaurant on the suit land bearing khasra no. 2728/1674/2 and Khasra no. 2728/1674/3.
In order to substantiate his claim, the plaintiff has placed on record the original sale deed which is Ex.PW3/4 and also the previous sale deed which is Ex.PW3/3 which sale deed pertaining to the previous transaction i.e. sale of the land of Khasra no. 2728/1674/2 and Khasra no. 2728/1674/3 by Rattan Lal and Kasturi Devi to Parmanand, Tej Nath, Tej Prakash, Gokal Chand and Ram Dhan who in turn had sold the property to him. He has further placed his reliance on the various revenue entries wherein the land of Khasra no. 2728/1674/2 and Khasra no. 2728/1674/3 has been shown as Sham Lat Thok land. It is also the case of the : 36 : plaintiff that the aforesaid land has been in his possession till date and has never been acquired by the government.
Interestingly the plaintiff no. 2 Lal Chand has not come to depose before this court and it is only his son Harbir Khatri who is one of the Directors of the plaintiff no. 1 company who has examined himself as PW3. I have gone through the documents Ex.PW3/3 & Ex.PW3/4 which are not accompanied by any Aks Sijra/ site plan. The plaintiff has not placed on record any documents nor has examined any witness to prove the location and the boundaries of the said land. It is unbelievable that the sale of an immovable property could have taken place without identification of the property with regard to its location. As per the existing practice all such transactions of immovable property : 37 : either bear the complete details of the boundaries to assist in location of the property sold alongwith site plan or is accompanied by an Aks Sijra. However, in the present case this has not been done and the plaintiff has not adduced any evidence to prove the boundaries of the suit land. Therefore, on the basis of the aforesaid I hold that the plaintiff no. 2 had purchased a land falling in Khasra no. 2728/1674/2 and Khasra No. 2728/1674/3 but he has not been able to prove the location of the said land comprising of Khasra no. 2728/1674/2 and Khasra No. 2728/1674/3. The plaintiff has further not been able to connect the land over which the plaintiff no. 1 is running Sahara Restaurant to the land comprised of Khasra no. 2728/1674/2 and Khasra No. 2728/1674/3 of which the plaintiff no. 2 and his brothers are stated to be the owners.
: 38 : Further, the witness G.S. Meena, Record Keeper from LAC South who has been examined as PW4 has placed on record the award no. 80E/7071/ Supplementary alongwith Annexure A showing that Khasra no. 2728/1674/3 is part of the old abadi of the village. It is also evident from Ex.PW4/1 that Khasra no. 1673.min (012) and Khasra no. 2728/1674/3 min + 2 (1414) with an area of 1512 Sq. yards has been acquired and the rate of claim is Rs.50 per sq. yards and the compensation to be awarded is Rs.1,55,600/ in all which is in respect of acquisition of land of Ran Singh,. Dhan Singh, Lal Chand and Suraj Singh all sons of Mam Raj as shown at serial no. 66. It is evident from the record that the plaintiff has in his entire plaint omitted to make any mention regarding any acquisition or proposed acquisition proceedings. The witness PW4 in his oral : 39 : testimony has stated that the Khasra no. 1674 has not been acquired vide the aforesaid award whereas Ex.PW4/1 shows the aforesaid Khasra no. as a part of the acquisition. There appears to be a suppression of material facts from this court. No explanation is forthcoming for the aforesaid contradiction. It was necessary for the plaintiff to have specifically pleaded that the aforesaid Khasra no. was free from acquisition proceeding and also to have provided an explanation with regard to entry at serial no. 66 of Ex.PW4/1 showing the name of plaintiff no. 2 Lal Chand S/o Mam Raj as one of the claimants in respect of the acquisition of Khasra no. 2728/1674/3 which Khasra is the old abadi of village Kishangarh which has not been done.
The defendant DDA has placed on record the complete area location plan Ex.D2W1/4 to which there : 40 : is no rebuttal. Only a simply suggestion has been made to the witness of the defendant that the aforesaid plan is incorrect but the plaintiff has not placed on record any other alternative plan which according to him is the correct plan. Therefore, under these circumstances, I find no reason to discard the aforesaid document which shows that Sahara Restaurant has been constructed in front of the Community Center no. 1, Nursery School no. 2 and group housing Janta Flats - 952 on the road and is shown to be away from the abadi of village Kishangarh.
Annexure A to the Award Ex.PW4/1 shows that the Khasra no. 2728/1674/3 (1.01) falls in old abadi. It is evident from Annexure A that the entire Khasra no. 2728/1674 falls in the old abadi of village Kishangarh and under these circumstances, it is not possible to : 41 : believe that the aforesaid Khasra i.e. 2728/1674 would be located away from the main village abadi and therefore, it appears that the plaintiff has deliberately tried to create a confusion with regard to Khasra no. 2728/1674 and has attempted to show that the land on which the Sahara Restaurant has been constructed is bearing Khasra no. 2728/1674/2 and Khasra no. 2728/1674/3 which is not the case and apparently it was for this reason that he has deliberately not placed on record any site plan/ Aks Sijra, demarcation report or any other document to prove the exact location of the Khasra no.
In view of the aforesaid I hereby hold that the plaintiff has proved that he had purchased the land falling in Khasra no. 2728/1674/2 and Khasra no. 2728/1674/3 but has not been able to prove that the land : 42 : over which the plaintiff no. 1 is running Sahara Restaurant is comprised of Khasra no. 2728/1674/2 and Khasra no. 2728/1674/3 or that he is in legal possession of the said land over which the Sahara Restaurant is constructed. Issue is disposed off accordingly.
Issue no. 2 Whether the suit land is a government land as alleged in para no. 1 of the preliminary objections? If so, whether the suit is liable to be dismissed on this ground?
Issue no. 6 Whether the suit land is a government land was placed at the disposal of the DDA under Section 22 (1) of the DDA vide notification dated 20.08.1974?
Both the issues are clubbed together for the sake of convenience involving common discussion. The defendants in their written statement has raised a preliminary objection stating that suit land is a : 43 : government land and had been placed at the disposal of the DDA vide notification no. SO 2190 dated 20.8.1974 to develop the land as green and since there is no challenge to the notification the suit is liable to be dismissed. It is further contended that the plaintiff has not approached this court with clean hands and cannot be granted any equitable relief. It is alleged that the plaintiffs are claiming reliefs in respect of illegal and unauthorized construction raised by them by trespassing the government land which they are illegally exploiting for private commercial profits. In support of their case they have examined two witnesses who have duly proved the various notifications and has placed before this court the record pertaining to the land in question.
I have considered the submissions made by the parties. The Ld. Counsel appearing on behalf of the : 44 : defendant has raised a preliminary objection that the relief sought for by the plaintiff cannot be granted as there is no challenge to the notification. I have gone through the pleadings of the plaintiff and it is evident from paragraph 12 of the plaint that the plaintiff has challenged the notification issued by the defendant no. 1 under Section 507 of the DMC Act claiming that the defendant no. 1 was not competent to issue such notification which paragraph is reproduced as under:
12. That the defendant no. 1 had also no power, competence or authority to issue any notification under Section 507 of the Municipal Corporation Act. The land never remained in the possession of Gaon Sabha or Central Government and the entries to this effect are wholly false, wrong, illegal, fictitious and mere : 45 : paper entries. The plaintiffs have been continuously in settled possession of the suit property.
Despite having pleaded that the notification was bad, the plaintiff has not sought any relief qua the above notification and the declaration sought is only in respect of the entries made in the revenue records which entries were made pursuant to the aforesaid notification.
At the very outset, it is necessary to observe that the entries have been made by the defendants in the revenue records in respect of the land forming part of Khasra no. 2728/1674/2 and 2728/1674/3 situated in the Revenue Estate of Mehrauli, Village Mehrauli Kishangrah, Tehsil Mehrauli, New Delhi, pursuant to the notification issued by the government under Section 507 of the DMC Act on 3.6.1966 which is Ex.D2W1/1 and : 46 : the subsequent notification dated 20.8.1974 placing the entire land so taken over by the government vide the earlier notification at the disposal of the DDA for development and maintaining as green which notification is Ex.D2W1/2. The relief sought for by the plaintiff regarding corrections of entries flows out of the main relief sought for by the plaintiff in the body of the plaint in the pleadings claiming that the notification was wrong and the defendant no. 1 had no competence or authority to issue the said notification. The provisions of Section 150 (3) and 150(4) of the DLR Act specifically provide the consequence of such a notification and as per the provisions of Section 150(3) of the DLR Act if whole of the Gaon Sabha area ceases to be included in the rural area as defined under the DMC Act 1957 by virtue of notification under Section 507 of that Act, the : 47 : Gaon Sabha constituted in that area shall thereupon stands dissolved and upon such dissolution all properties, movable or immovable and all interest whatsoever and kind therein including money held in Gaon Sabha Area Fund vested in Gaon Sabha immediately before such dissolution, shall, with all rights of whatsoever description, used, enjoyed or possessed by Gaon Sabha, vest in the Central Government.
The Hon'ble Supreme Court in the case of Jangbir Vs. Mahavir Prashad Gupta reported in 1974 (4) SCC 682 had observed that the provisions of Section 507 (a) and (b) of the DMC Act refer only to "areas" and not to mere Khasra nos. which are convenient divisions for the purposes of indicating what lay within each area.
: 48 : It was further observed by the court that the term "urban area" or "rural area" is used for much larger units than khasra nos. and it is quite possible to think of one particular number, within an "abadi" area, left out or dropped deliberately.
It is, therefore, it is evident that in view of the notification dated 13.6.1966 which is Ex.D2W1/1 the entire Kishangarh village including all immovable properties belonging to the Gaon Sabha became the property of the Central Government and the land under the occupation of the plaintiff situated in village Kishangarh to which the notification under Section 507 of the DMC Act dated 3.6.1966 applied, thereafter became the property of the Central Government which was later on transferred to the DDA for maintenance as green. Therefore, the notification dated 3.6.1966 having : 49 : been issued by the government under Section 507 of the DMC Act whereby the entire area of Kishangarh was urbanized, consequentially in terms of the provisions of Section 150 (3) of the DLR Act, the land came to vest under the Central Government vide notification under Section 22 (1) of the DD Act dated 20.8.1974 and on urbanization the entire area was placed at the disposal of the DDA for purposes of development and maintenance of the said land as green and for taking such steps as required to serve the said purpose, subject to the condition that the DDA shall not take or cause or permit to be made any construction on the said land.
In case if the plaintiff was aggrieved by the entries made in the revenue records subsequent to the notification dated 3.6.1966 and the subsequent notification dated 20.8.1974 it was necessary for the : 50 : plaintiff at the first instance to have challenged the aforesaid notification since the relief of change in the entries is only a consequential relief which flows out of the main relief of declaration of the said notification as bad as claimed by the plaintiff in the pleadings in para 12 and the plaintiff having failed to claim the said relief would not be entitled to the consequential relief.
Vide my detailed findings with regard to issue no. 1, I have already held that the plaintiff has not been able to prove that the land over which the large scale construction of Sahara Restaurant has been made, falls in Khasra no. 2728/1764/2 and Khasra no. 2728/1674/3 and that in fact Khasra no. 2728/1764/2 and Khasra no. 2728/1674/3 is a part of the old abadi which is situated at a distance and away from the place where the Sahara Restaurant has been constructed. The notification under : 51 : Section 22 (1) of the DD Act dated 20.8.1974 which is Ex.D2W1/2 is not disputed by both the parties. Firstly the plaintiff has not produced any documents in the form of demarcation report or Aks Sizra to show that the land on which Sahara Restaurant is situated falls in Khasra no. 2728/1674/2 and 2728/1674/3 and is the same land which has been purchased by the plaintiff no.2. The sale deed so relied upon by the plaintiff Ex.PW3/4 does not show the boundaries and identification of the land initially sold by Rattan Singh and Kasturi Devi so purchased by the plaintiff no. 2 later vide Ex.PW3/3. Secondly no explanation is forthcoming with regard to the acquisition award/ proceedings placed before this court which are Ex.PW4/1 showing that Khasra no. 1673.min (012) and Khasra no. 2728/1674/3 min + 2 (1414) with an area of 1512 Sq. yards has been acquired : 52 : with the rate of claim as Rs.50 per sq. yards and the compensation to be awarded as Rs.1,55,600/ in all which is in respect of acquisition of land of Ran Singh, Dhan Singh, Lal Chand and Suraj Singh all sons of Mam Raj as shown at serial no. 66. Thirdly Annexure- A to the award Ex.PW4/1 shows Khasra no. 2728/1674 to be falling in Old village Abadi and no explanation is forthcoming as to how the land on which Sahara Restaurant has been constructed is situated away from the abadi which according to Ex.D2W1/4 is constructed on the road in front of Group Housing Janta Flats-952, Nursery School2 and Community Center-1. It is unbelievable that the Khasra no. 2728/1674 which falls in the old village abadi could be situated away from the said abadi. Fourthly in the earlier suit filed by the plaintiff no. 2 in the year 1990 before Ld. Civil Judge : 53 : the plaintiff no. 2 had claimed that he is in possession of two rooms and tin shed which he is using for residential purposes and no explanation is forthcoming as to how and when this huge construction of a big restaurant was made which is being used by the plaintiff no. 1 for commercial purposes. It is evident from the order dated 24.11.2008 in RFA No. 651/03 that the High Court was apprised of the earlier report of the Local Commission in suit no. 211/02/90 and the large scale constructions raised by the plaintiff over the said land despite the status quo order without the sanction of the municipal authorities. Even otherwise no permission can be granted by the DDA for any construction over the land in question which is covered under the notification dated 3.6.1966 and the notification dated 20.8.1974. Lastly the plaintiff has not placed on record the details of the : 54 : existing constructions at the site and the pleadings of the defendants to the extent that the plaintiff has raised large scale construction of the restaurant which he is using for personal commercial gains has gone uncontroverted.
Therefore in view of the aforesaid I hereby hold that the entire area of village Kishangarh Mehrauli stood vested in the Central Government under Section 507 of the DMC Act vide notification dated 3.6.1966 which is Ex.D2W1/1 and by necessary implication the land over which Sahara Restaurant is constructed is also covered by the said notification being situated in village Kishangarh. Thereafter, vide notification dated 20.8.1974 which is Ex.D2W1/2 the entire land of village Kishangarh which was earlier taken over by notification Ex.D2W1/1 stood transferred to DDA for maintenance as green with directions that under no circumstances, the : 55 : DDA can permit or cause to permit any construction over the same. The Delhi High Court in the case of Rajender Kakkar Vs. DDA in Civil Writ petition no. 3355/ 1993 had held that whole of village Kishangarh was urbanized and as per Section 150 of DLR Act the land of whole Gaon Sabha ceases to be rural and the land belonging to the Gaon Sabha in the village Kishangarh vested in the Central Government who vide notification dated 20.8.1974 placed the same at the disposal of the DDA. The plaintiffs have failed to show their right, title or interest over the land on which the plaintiff no. 1 has constructed and is running the Sahara Restaurant and it is evident from the complete area location plan Ex.D2W1/4 which has gone un controverted that the plaintiff has constructed the restaurant by encroaching upon the government land : 56 : meant for a road. Under the garb of the present suit the plaintiffs are indirectly challenging the notification by which village Kishangarh was urbanized and the land was placed at the disposal of the DDA without specifically challenging the same as the entries made in the revenue records are only pursuant to the said notifications. Therefore, in view of the aforesaid I hereby decide the issue no. 2 against the plaintiff and in favour of the defendants.
Issue no. 3 Whether the suit is within
limitation?
The defendant DDA in their written statement have raised a preliminary objection that the suit of the plaintiff is barred by limitation. It is stated that the notifications are 25 years prior to the date of filing of the suit and therefore, the plaintiff is deemed to have been : 57 : aware of the same and the suit having been filed in the year 2000 is barred by limitation. The case of the plaintiff is that the cause of action had firstly accrued in his favour when he learnt about the wrong entries in the revenue records in the month of November/ December 1998 and also when the statutory notice was served upon the defendants. According to the plaintiffs it again arose when the plaintiff learnt that the defendants were intending to demolish the suit property on 11.2.2000 and is stated to be continuing one.
The case of the defendant on the other hand is that the suit of the plaintiff is barred by limitation since the entries of which the plaintiff is seeking corrections are based upon the notification dated 3.6.1966 under Section 507 of the DMC Act and the subsequent notification under Section 22 (1) of the DD Act dated : 58 : 20.8.1974 and the plaintiff now cannot wake up after so many years and challenge the said entries in the revenue records which are based upon the aforesaid notifications. It is also pointed out by the Ld. Counsel appearing on behalf of the defendants that the plaintiffs in their pleadings have not clarified as to how they acquired knowledge in the month of November/ December 1998 and it is not sufficient to state that the knowledge was acquired during trial of the earlier case.
The Ld. Counsel appearing on behalf of the plaintiff has argued that the plaintiff who has been examined as PW3 have very specifically in his examination in chief stated that the plaintiff no. 2 had acquired knowledge in the year 1998 when he applied for the revenue documents and obtained them to which aspect there is no crossexamination and therefore, the : 59 : aforesaid aspect having gone uncontroverted and the suit having been filed within the period of three years from the date of knowledge i.e. w.e.f. November/ December 1998, the present suit is within the period of limitation.
I have duly considered the rival contentions of the parties and also perused the certified copy of the judgment dated 3.3.2003 passed by the court of Ms. Madhu Jain, the then Civil Judge in suit no. 211/02/90 and the order passed by Sh. G.P. Mittal, ADJ in the case of Lal Chand S/o Mam Raj Vs. DDA & MCD in RCA No. 29/04 and also the order of the Hon'ble Delhi High Court dated 13.9.2006 and order dated 24.11.2008 in RFA No. 651/03 wherein the Hon'ble Delhi High Court had observed that in view of the fact that the suit for title had been filed by Lal Chand who is also the coplaintiff : 60 : in the present case, no interference was called for and nothing stated in the impugned judgment and decree dated 3.3.2003 pertaining to the issues of title would be construed as bindings between the parties. The record reveals that the earlier suit had been instituted by the plaintiff no. 2 Lal Chand against DDA and MCD on 18.8.1990 and interestingly the plaintiff no. 2 has not appeared to get himself examined which non appearance appears to have been deliberate to avoid examination on the aspect of date of knowledge since it is the plaintiff no. 2 Lal Chand who had filed the earlier suit in the year 1990 before the Civil Judge where a detailed written statement had been filed by the DDA pleading that the land in question is a government land and is required to be maintained as green. Need less to say the plaintiff no. 2 was the best possible witness who could have proved : 61 : the date of knowledge being the plaintiff in the earlier suit bearing no. 211/02/90 wherein the defendant DDA in their written statement had raised an objection with regard to the legal right and title of the plaintiff and alleging Lal Chand to be an encroacher. Therefore, having failed to appear before this court, an adverse inference is liable to be drawn against him.
It is further evident from para 9 and 10 of the pleadings in the plaint that the plaintiffs claim that they learnt about the wrong entries in the revenue records during the course of preparation of trial in the earlier suit. The said paragraphs are reproduced as under:
Para 9. That in the year 1990 defendant no. 2 tried to dispossesses the plaintiffs and demolish the suit property on the ground that the same belonged to it and the plaintiff no. 2 : 62 : was constrained to file a suit in this hon'ble court being suit no. 2576/1990 in which this Hon'ble Court was pleaded to grant an ex parte ad interim injunction on 20 August 1990 and the injunction was confirmed on 14.7.1998. The said matter is now pending in the court of learned Additional District Judge, Delhi.
Para 10. That during the course of preparation of trial the plaintiffs applied for a copy of khasra girdawris of the above said land and were shocked to learn that the Revenue Records have been incorrectly maintained and the plaintiffs have neither been shown as owner/ bhumidars nor in possession of the above said land. The land has been wrongly and illegally shown to be vested in Gaon Sabha and possession : 63 : of the plaintiffs has also not been shown in the record of khasra girdawris illegally.
Therefore, as per the pleadings that the cause of action occurred when according to the plaintiff he applied for the copies of the Khasra Girdawries which was in November/ December 1998 i.e. during the course of preparation of trial in the earlier suit.
This claim of the plaintiff, however, does not appear to be factually correct. It is evident from the judgment dated 3.3.2003 that a detailed written statement had been filed by the DDA before the Ld. Civil Judge that the suit filed by Lal Chand the plaintiff no. 2 on 18.8.1990 wherein the DDA had specifically pleaded that the land forming a part of Khasra no. 2728/1674/2 and 2728/1674/3 situated in the Revenue : 64 : Estate of Mehrauli, Village Mehrauli Kishangrah, Tehsil Mehrauli, New Delhi and on urbanization of village Mehrauli the entire Gaon Sabha land vested in the Central Government, who later transferred this land at the disposal of the defendant DDA for development and maintenance as green vide notification dated 20.8.1974 and the plaintiff has no right, title or interest over the said land. It was further pleaded that the plaintiff had wrongly and unauthorizedly occupied the land and constructed a boundary wall alongwith three temporary rooms which construction was unauthorized and it was denied that the suit property existed for the last 16 years. It is further evident from the said judgment that after the plaintiff filed a replication denying the aforesaid the issues were framed by the Ld. Civil Judge on 11.3.1997. This being so, it is unbelievable that the date of : 65 : knowledge by the plaintiffs was of November/ December 1998. Rather, the plaintiffs were fully aware of the land being at the disposal of the DDA during the proceedings in suit no. 211/02/90 when the DDA filed its written statement when the limitation started to run more so as the plaintiff no. 2 had also filed replication denying the aforesaid and therefore, as per the provisions of the Limitation Act, Article 58 to the Schedule, the challenge to the same should have been made within the period of limitation which is within three years from the date of knowledge and the limitation which has once started running does not get extended by the plaintiff obtaining certified copies or giving a notice to the defendant. This suit which has been filed only on 11.2.2000 is clearly beyond the period of three years from the date when the DDA filed its : 66 : written statement in Suit No. 211/02/90 and the plaintiff no. 2 is first assumed to have acquired knowledge and in an attempt to cover up this delay the plaintiff has tried to falsely create a cause of action in November/ December 1998 by attributing the date of knowledge as to be during the preparation of trail when he applied for copies of the revenue record despite the fact that the period of limitation started to run when the written statement was filed by the DDA to which the plaintiff no. 2 also filed a replication pursuant to which the issues were framed on 11.3.1997 of which one of the issue framed was "Whether the plaintiff has any legal right to file the present suit". This being the case I hereby hold that the present suit is clearly beyond the period of limitation and I decide the issue no. 3 against the plaintiff.
: 67 : Issue no.4 Whether the suit is barred under Order II R 2 CPC?
The defendants have further raised a preliminary objection regarding the bar to the present suit in view of the provisions of Order 2 Rule 2 CPC. The provisions of Order 2 Rule 2 CPC provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. A person entitled to more than one relief in respect of the same cause of action he can after its sue for the relief so omitted after obtaining the leave of the court to sue as such but in a case where the plaintiff has omitted to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
: 68 : Admittedly the earlier suit had been filed by Lal Chand the plaintiff no. 2 against MCD and DDA which suit was for permanent injunction by way of which the plaintiff had sought to restrain the defendants from dispossessing, interfering in his possession and from demolishing or sealing of the existing structure of house no. 80, Kishangarh, Vasant Kunj, New Delhi which property according to the plaintiff Lal Chand was a part of Khasra no. 2728/1674 having purchased vide registered sale deed dated 10.10.1963 consisting of two rooms and tin sheds over the land constructed in the year 195960. In the pleadings before this court the plaintiff no. 2 who was the plaintiff in the earlier suit has pleaded that his sons having grown up had floated a company in the name of plaintiff no. 1 and started the business of restaurant in the name of 'Sahara Restaurant' after : 69 : obtaining all necessary sanctions from the MCD. According to him, officers from the local police came to the property to survey the same and the plaintiff had learnt that the demolition orders had been passed for demolition of the suit property on the ground that the orders passed in the suit did not cover the restaurant since the name 'Sahara Restaurant' is not mentioned in the order. It is evident from the judgment dated 3.3.2003 that the plaintiff no. 2 had taken a stand in the pleadings that he was residing in the suit property and had been paying the property tax which land in dispute was free from acquisition proceedings whereas now before this court he has taken a stand that his sons had started running a restaurant in a part of the property and because the earlier order did not cover the name of the restaurant he was compelled to file the present suit.
: 70 : The provisions of order 2 Rule 2 CPC would be applicable in a case firstly where the previous and the present suit both arises out of the same cause of action; secondly where the cause of action on which a subsequent suit is founded has arisen to the plaintiff when he sought enforcement of the first claim before the previous court; thirdly when the suits are between the same parties and lastly when the earlier suit had been decided on merits. In the present case admittedly the suit is between the same parties though in the earlier suit the plaintiff had also impleaded MCD as defendants whereas in the present case he has only impleaded the Union of India and DDA. The main relief sought for is against the DDA who is the defendants in both the suits. The earlier suit which had been filed in the year 1990 and the present suit are in respect of the same property : 71 : i.e. house no. 80 Village Kishan Garh, Distt. Mehrauli which according to the plaintiff falls in Khasra no. 2728/1674. In the earlier suit the plaintiff had pleaded that the officers of the defendant had come to demolish his property whereas now in the subsequent suit he has again pleaded that there has been a demolition order in respect of the property in question and the name of Sahara Restaurant has not been added in the interim order on account of which he has now filed the present suit.
The term 'cause of action' would mean every fact which may be necessary for the plaintiff to prove if traversed in order to support his right to the judgment. The cause of action in two suits may be considered to be same if in substance they are identical. An action which gives an occasion for and forms foundation of a suit has : 72 : to be sought in totality and if that cause of action enables a person to ask for a larger and wider relief than that to which he limits his claim, he cannot afterward seek to recover the balance by independent proceedings. The correct test in cases falling under Order 2 Rule 2 CPC is whether the claim in the new suit is founded upon the cause of action distinct from that which was the foundation for the former suit. In considering where the two cause of actions are identical one available test is whether the evidence in both the suits for obtaining decree is the same. It is settled law that omission to sue for some of the reliefs would not bar the second suit unless the plaintiff was aware of his claim or the fact which constitute the cause of action of the former suit.
The relief of permanent injunction as claimed in both the suits is virtually similar but in the present suit : 73 : in order to prove his legal right the plaintiff has sought an additional relief of declaration and mandatory injunction regarding the entries made in the revenue records. In my findings with regard to issue no. 3 it has been observed that the date of knowledge of the entries made in the revenue record was during the trial of the earlier case when the DDA had file its written statement before the Ld. Civil Judge in suit no. 211/02/90 pursuant to which the plaintiff no. 2 had even filed his replication, I hereby hold that the relief so claimed in the present suit could not have been sought by the plaintiff in the earlier suit, the plaintiff having came to know of it later during trial of the said suit and therefore, provisions of Order 2 Rule 2 CPC would not be applicable to the present suit. The issue no. 4 is hereby decided in favour of the plaintiff and against the defendants.
: 74 : Issue no. 5 Whether the plaintiff has not come to the court with clean hands and is not entitled to the equitable relief of injunction as stated in para VI of the preliminary objections?
The case of the defendant is that the plaintiff is not entitled to any equitable relief as he has not approached this court with clean hands and has no subsisting right over the suit land. It is alleged that the plaintiffs are claiming relief in respect of illegal and unauthorized construction raised by trespassing upon the government land which is illegally being exploited for private commercial profits. The defendants have also claimed that the plaintiff has not come to the court with clean hands and has abused to the process of law having raised large scale construction on government land by encroaching upon the same and using it for their : 75 : personal commercial gain.
The defendants have placed their reliance on notification dated 20.8.1974 which is Ex.D2W1/2 duly admitted by both the parties and has proved that the entire area of village Kishangarh Mehrauli has been placed at the disposal of the DDA for development and maintenance as green and for taking steps as may be required for the said purpose subject to the condition that the DDA shall not make or cause or permit to be made any constructions on the said lands.
The ld. Counsel for the plaintiff has placed his reliance on the crossexamination of PW4 who is unable to tell whether Khasra no. 1674 was a subject matter of notification dated 20.8.1974. This I am afraid will not help the plaintiff in any manner and merely because PW4 the Record Keeper LAC South has stated that he : 76 : has not aware if Khasra no. 1674 is the subject matter of the notification issued under Section 22 (1) of the DD Act will not make any difference since the notification dated 20.8.1974 itself is very clear and clearly shows that the entire village Kishangarh (Mehrauli) which had earlier been acquired by the Central Government vide notification dated 3.6.1966 Ex.D2W1/1 had been placed at the disposal of the DDA for development and maintenance as green and for taking such steps as required to serve the said purpose, subject to the conditions that the DDA shall not make or cause, or permit to be made any constructions on the said land. Therefore, under these circumstances, as per the settled law as laid down by the Hon'ble Apex Court in the case of Jangbir Vs. Mahavir Prashad Gupta (Supra) and also followed by the Delhi High Court in the case of : 77 : Rajender Kakkar Vs. DDA (Supra) as discussed herein above, I hold that since no specific Khasra no. having been mentioned, the entire village Kishangarh was placed at the disposal of the DDA for development and maintenance as green and no construction on the land could have been made or permitted to have been made over the said land.
It is further evident from the Delhi High Court order dated 13.9.2006 that large scale construction was alleged to have been raised by the plaintiff during the pendency of the appeal i.e. RFA No. 651/03.
Here is a plaintiff who has approached this court seeking correction of the entries in the revenue record and a consequential relief of injunction i.e. restraining the defendant DDA from demolishing the property he has constructed where he is running a : 78 : restaurant under the name and style of 'Sahara Restaurant' over the land which according to the plaintiff belongs to him having purchased the same vide a valid consideration in the year 1963. The plaintiff has based his claim on the fact that the land falls in Khasra no. 2728/1674/2 and Khasra no. 2728/1674/3 and has lead evidence to the effect that Khasra no. 2728/1674 is a Sham Lat Thok land and he is in possession of the same wherein he was having two two rooms and tin shed alongwith boundary wall and was using the same for residential purposes. Nowhere in the entire evidence he has proved that the land on which Sahara Restaurant has been constructed fall in Khasra no.2728/1674/2 and Khasra no.2728/1674/3 which he had purchased vide valid consideration. It is one thing to say that the land pertaining to Khasra no. 2728/1674/2 and Khasra no.
: 79 : 2728/1674/3 belongs to him whereas it is another thing to prove that the land on which he had raised the construction of the restaurant in respect of which he is seeking relief actually falls in Khasra no. 2728/1674/2 and Khasra no. 2728/1674/3. The title documents so relied upon by the plaintiff do not prove the location of the said land. Aks Sijra has not been placed on record and as per the Award Ex.PW4/1 part of the land bearing Khasra no. 2728/1674/3 stood acquired and the present plaintiff no. 2 alongwith his brothers are held entitled to compensation to the tune of Rs.1,55,600/. Further according to Annexure-A of the Award Khasra no. 2728/1674 falls in old abadi of the village whereas the case of the plaintiff is that his land does not fall in abadi. Therefore, in this regard the testimony of PW3 wherein he had stated that the land does not fall in abadi is : 80 : required to be excluded.
An attempt has been made by the plaintiffs to hoodwink the court and legitimize their claims over the construction made by them from which they are deriving huge commercial benefits. The conclusions drawn from the testimonies of the various witnesses and the documentary evidence on record and in view of my detailed findings with regard to the earlier issues are as under:
1. The plaintiff no. 2 had purchased land falling in Khasra no. 2728/1674/2 and Khasra no. 2728/1674/3.
2. The Aks Sijra, site plan and the demarcation report have been suppressed from the court and the plaintiff have not been able to prove the location of the land falling in Khasra no. 2728/1674/2 and Khasra no. 2728/1674/3.
3. The land of Khasra no. 2728/1674 (1.01) has been acquired vide award Ex.PW4/1 where the plaintiff no.
: 81 : 2 and his brothers have been shown at serial no. 66 being entitled to the compensation for a sum of Rs.1,55,600/.
4. As per the Annexure A of the Award Ex.PW4/1 entire Khasra no. 2728/1674 village Kishangarh Mehrauli falls in old village abadi.
5. As per the complete area location plan of the DDA Ex.D2W1/4 village Kishangarh is situated at a distance from the land over which Sahara Restaurant has been constructed which construction is in front of community center - 1, Nursery School - 2 and Group Housing Janta flats-952 to which there is no specific rebuttal.
6. As per the notification dated 3.6.1966 the entire area of village Kishangarh has been taken over by the Central Government under Section 507 of the DMC Act and by : 82 : necessary implication the land over which Sahara Restaurant is constructed which is situated in village Kishangarh has also been placed at the disposal of the government.
7. Vide notification dated 20.8.1974 the entire land of village Kishangarh so urbanized vide notification dated 3.6.1966 stood transferred to the DDA for development purposes and maintenance as green where further directions have been given that the DDA under no circumstances can permit or cause to permit any construction over the same.
8. The plaintiff has failed to connect the land over which the plaintiff no. 1 is running Sahara Restaurant with land bearing Khasra no. 2728/1674/2 and Khasra no. 2728/1674/3.
9. That the large scale constructions have been made at : 83 : the site where a huge restaurant had come up, despite the pendency of the earlier suit of the year 1990 which was disposed off in the year 2003 and during the pendency of its appeal was pending before the Delhi High Court which aspect is evident from the Delhi High Court order dated 16.9.2006 in RFA No.651/03.
10. That under the garb of the present suit for declaration and injunction the plaintiffs wants to regularize illegal constructions made by him by encroaching the land belonging to the government and merely because the MCD and other authorities have granted a license to the plaintiff to run a restaurant will not create any right in favour of the plaintiff qua the restaurant.
11. That there has been a suppression of material facts and documents from this court as under:
a) Suppression of the AksSijra in respect of Khasra : 84 : no. 2728/1674/2 and Khasra no. 2728/1674/3 showing the details and the complete documents of sale and title which would have proved the location of the property so purchased by the plaintiff no. 2.
b) Suppression of complete details of the acquisition proceedings in respect of Khasra no. 2728/1674/3 min + 2 (1414) where an area of 1512 Sq. yards has been acquired and the rate of claim is Rs.50 per sq. yards and the compensation to be awarded is Rs.1,55,600/ in all which is in respect of acquisition of land of Ran Singh, Dhan Singh, Lal Chand and Suraj Singh all sons of Mam Raj as shown at serial no. 66.
c) Suppression of the pleadings and the proceedings of the earlier suit filed by the plaintiff no. 2 Lal : 85 : Chand bearing suit no. 211/02/90 and incorrect information to the court about the date of knowledge.
d) Suppression about the extent of existing construction at the site.
11. That the plaintiff under the garb of the present suit is attempting to challenge the notification Ex.D2W1/1 dated 3.6.1966 and Ex.D2W1/2 dated 20.8.1974 pursuant to which the entries were made in the revenue record which is impermissible.
12. That the suit of the plaintiff is beyond the period of limitation as provided under Article 58 of the Schedule of the Limitation Act.
Needless to say that the land is situated in a prime location. The implication of any findings by this court on the aspects so raised by the plaintiff would be wide. The case of : 86 : the defendant DDA is that the plaintiff is an encroacher on the government land rather the complete area location plan placed on record by the defendant DDA shows that the construction of the Restaurant has been made by the plaintiff by encroaching upon the land which was meant for a road. The close nexus operating between the land mafia and the government officials is not unknown. The courts are obviously expected to exercise extreme caution while deciding such issues least it may fall prey to the unholy nexus existing between the land sharks and the government officials and get entangled in the same.
It is necessary to add that the state of affairs of the government department is most appalling and having failed to ensure the production of the entire revenue records of the area despite specific directions, a needle of suspicion is pointed towards the concerned officials of : 87 : the department and consequently the matter certainly requires a probe.
Issue is accordingly disposed off against the plaintiff.
Relief:
In view of my findings with regard to the various issues, I hereby hold that the plaintiffs are not entitled to any relief of declaration, mandatory and permanent injunction as asked for in the plaint.
Suit of the plaintiffs is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. Copy of this order is directed to be placed before the Vice Chairman DDA and Chief Secretary NCT of Delhi for appropriate action. File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 28.3.2009 Addl. District Judge: Delhi : 88 : : 89 : Khatri Hotels Vs. Union of India 28.3.2009 Present: Sh. Ravinder Singh advocate for the plaintiff alongwith the plaintiff.
Sh. K.D. Sharma, advocate for the defendant no. 2.
Vide my separate detailed order dictated and announced in the open court but not yet typed, I hereby hold that the plaintiffs are not entitled to any relief of declaration, mandatory and permanent injunction as asked for in the plaint.
Suit of the plaintiffs is hereby dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly. Copy of this order is directed to be placed before the Vice Chairman DDA and Chief Secretary NCT of Delhi for appropriate action. File be consigned o Record Room.
ADJ13 (Central): DELHI 28.3.2009 : 90 :