Delhi District Court
Cs No. 34/17/98 (New No.8872/16) R.S. ... vs . Dda & Anr. 1/41 on 1 September, 2017
IN THE COURT OF SH. SANJAY KUMAR, ADDITIONAL
DISTRICT JUDGE-02, WEST, DELHI.
CS No. 34/17/98
New No. Civ. DJ-8872/16
1. Sh. R.S. Gautam
S/o Late Shri C.L. Gautam
R/o 131-B, Yusuf Sarai,
New Delhi.
2. Sh. J.N. Gautam
S/o Late Sh. C.P. Gautam
R/o 131-A, Yusuf Sarai,
New Delhi.
3. Sh. Ved Prakash Varshney
S/o Sh. L.B. Varshney
R/o 136, Yusuf Sarai,
New Delhi
4. Sh. S.C. Jain
S/o Sh. K.M. Jain
R/o 132-A, Yusuf Sarai,
New Delhi
(deleted vide order dated 20.03.2012)
5. Sh. Babu Lal Gupta
S/o Sh. Deen Dayal Gupta
R/o 132-B, Yusuf Sarai,
New Delhi
Through his Transferees
a). Smt. Sarika Satija
W/o Sh. Neeraj Satija
R/o E-60, Saket,
New Delhi-110017.
b). Smt. Krishna Narang
W/o Shri Jagdish Narang
R/o J-110, Saket,
New Delhi-110017.
CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 1/41
c). Smt. Tanu Narang
W/o Sh. Gaurav Narang
R/o J-110, Saket,
New Delhi-110017
(impleaded vide order dated 03.09.2011)
6. Sh. Sheo Raj Singh
S/o Sh. Munshi Ram
R/o 140-A, Yusuf Sarai,
New Delhi.
(deleted vide order dated 20.03.2012)
7. Sh. Shiv Charan
S/o Shri Ram Saroop
R/o 131-A/1, Yusuf Sarai,
New Delhi. .....Plaintiffs
versus
1. Delhi Development Authority
through the Vice Chairman
Vikas Sadan, New Delhi.
2. Municipal Corporation of Delhi
through Commissioner, Town Hall,
Delhi.
3. Indian Oil Corporation
through the Chairman,
Indian Oil Bhawan, Janpath,
New Delhi-110001. .......Defendants
Date of institution of the case : 09.01.1998
Date of reserving of judgment : 17.08.2017
Date of pronouncement of judgment : 01.09.2017
JUDGMENT
1. The plaintiff has filed a suit for declaration and injunction against the defendants. The brief facts necessary for the disposal of the suit are as under:
CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 2/41
2. It is stated that the plaintiffs and several other persons purchased land for the purpose of construction of residential houses from a land owner of the area Pt. Leela Ram in Khasra no. 116/93/1 of Mauza, Yusuf Sarai Jat now known as abadi Yusuf Sarai around the years 1960/1961 vide registered sale deeds. At the time of sale of the plots, the said Pt. Leela Ram represented that the said plots are connected to the main Mehrauli Road, Yusuf Sarai by a Kucha road which was duly existed then by the side of the open land now bounded along with and known as plot no.1, Yusuf Sari. The said Kucha road was subsequently made pucca Kharanja road as described in the site plan attached.
3. It is stated that the plaintiffs constructed their houses sometime in 1960s and are residing there since then. The Municipal Corporation of Delhi, defendant no.2, is levying the house tax and other municipal taxes as per provisions of Municipal Corporation Act. These houses are provided with the electric, water and sewerage connections. On one side of these houses, there is a Nala and there is a pucca road of 20 ft. wide constructed and maintained by defendant no.2 in front of the houses. It is stated that between the houses of the plaintiffs, the said wide road and th main Mehrauli road, there was a wide open space occupied by various unauthorized occupants. The aforesaid road connected these houses with the Mehrauli road.
4. It is stated that during the emergency period of 1975, there was wide spread demolition of unauthorized constructions throughout Delhi as well as in South Delhi. The demolition squad of defendant no.1 demolished all the CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 3/41 unauthorized constructions/ encroachments on the above mentioned open wide space. Defendant no.1 vide resolution No. 11 regularized the houses of the plaintiffs and others on 13.02.1979 for all purposes. After demolition of the unauthorized construction/encroachments on the said wide open plot of land, the defendant no. 1 leveled the ground and started the development for the purpose of a community centre and fenced it and in 1982 constructed a boundary wall and fixed a main gate on the Mehrauli road on the said open land. The passages remained in existence for the use of the plaintiffs and other residents of the area.
5. It is stated that after fencing and construction of boundary wall of about 3 feet, the plaintiffs and other residents having no other outlet or connecting passage between their residences to the main Mehrauli road except through the open plot of land, now mentioned as Plot no.1, Yusuf Sarai, submitted a representation on 07.08.1984. The said representation was duly acknowledged by the defendant no.1 vide letter dated 03.09.1984. On 29.05.1984, the plaintiffs submitted another representation to the Chief Engineer CPD-VII, DDA for the construction of the passage. The representation and the genuine grievances of the plaintiffs were duly considered. The Chief Engineer made the following recommendations:
"A delegation of residents from Yusuf Sarai had met me on 29.05.84. I told them that provision of gate and posting of Chokidar was in their interest as would prevent unauthorized encroachment. When the complex is developed, we will see that provision is made for proper access to their houses. They were satisfied. Please make CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 4/41 arrangements that Scooters/ 2 wheelers/ Cars of residents are allowed to pass through without harassment to them".
6. It is stated that before finalizing the Master Plan for Delhi, the defendant no.1 invited objections. The plaintiffs vide representations dated 27.06.1985 submitted objections against the proposed Master Plan. The defendant no.1 after considering the representations/objections, call the plaintiffs personally to explain their difficulties. The plaintiff appeared before the Screening Board on 27.09.1985 for their above said problem of passage. The Screening Board assured the right of passage and continuous use of the existing passage ever after the development of Plot No.1, Yusuf Sarai.
7. It is stated that sometime in 1989, the defendant no.1 sold the said plot no. 1 to the Indian Oil Corporation, defendant no.3. After transfer of the plot, the defendant no.3 raised the height of the boundary wall and narrow down the passage to 10 feet and finally sought to close it. It is stated that since the plaintiffs had no other outlet or ingress and egress from their houses to the main Mehrauli road except through the said plot no.1 which they had been using the same peacefully, continuously without any hindrance ever since the purchase of the plots and construction of their houses, the plaintiffs had acquired a legal right, including easementary right to continue to use the same without any obstruction from the defendants.
8. It is stated that the plaintiffs filed a writ petition before the Hon'ble High Court bearing no. CW 2283/89 titled 'Shri H.S. Gautam & Others vs. Lt. Governor & Ors.'. The CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 5/41 Hon'ble High Court vide order dated 09.08.1989 passed the status-quo order in respect of the passage in question. It is stated that during the course of hearing, the Hon'ble Court had been making interim orders for ensuring an unobstructed passage to the plaintiffs from the said plot No.1. Orders dated 05.10.1989, 15.10.1990 and 20.02.1995 were reproduced in this regard by the plaintiffs in the plaint. It is stated that it would be evident from the orders passed by the Hon'ble Court from time to time that the Hon'ble Court was seriously seized with the problem of providing uninterrupted passage to the plaintiffs. On an objection that the case involved question of fact including the plaintiffs' right to use passage from their residential houses through Plot no.1, Yusuf Sarai, New Delhi, it was directed vide order dated 21.11.1997 that the plaintiffs agitate their grievances in a Civil Court.
9. It is stated that in view of the order dated 21.11.1997, the plaintiffs have filed the present suit. The defendant no.2 is a necessary and proper party to the proceedings in as much as the civic amenities have been handed over by the defendant no.1 to the defendant no.2. The plaintiffs have been paying House Tax and other Municipal Taxes since long, therefore, Municipal Corporation of Delhi has also been impleaded as a defendant.
10. It is stated that the plaintiffs have no other passage available to them connecting their houses to the main Mehrauli Road or else where and without the present passage the plaintiffs will remain confined to their houses and would not be able to perform any activity. The plaintiffs seek a decree declaring that the plaintiffs are entitled to the CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 6/41 continuous use of passage in question from their residential house through Plot No.1, Yusuf Sarai, New Delhi connecting the Main Mehrauli Road, Delhi; to restrain the defendants no. 1 to 3 from closing or preventing or in any manner causing obstructions or hindrance to the plaintiffs from the use of the said passage from their residential houses connecting the main Mehrauli Road.
11. Defendant no. 1/DDA filed written statement. In the preliminary objections, it is stated that the plaint has been under valued for the purpose of Court Fees. The mandatory notice required under Section 53B of the Delhi Development Act has not been served on the defendant. In the reply on merits, the averments made in the plaint are denied as wrong and incorrect. It is stated that plaintiffs were unauthorized encroachers whose right, title, interest in the land cannot be traced. It is stated that when land is sold, the seller gives the path/ passage for the purpose of ingress or egress, from his own land and not from the Government's land. It is stated that since the land which is adjacent to the house constructed by the plaintiffs belongs to DDA entirely, the seller has no right to give the right of passage from the said piece of land to the purchaser.
12. It is stated that two passages, one about 10 feet wide and the other 12 feet wide were created by the plaintiff by demolishing the boundary wall after the same had been constructed by the defendant no.1 in 1982. The unauthorized demolition was without the consent, knowledge or authority of defendant no.1. The plaintiff further demolished the boundary wallin as many as 17 places and the same was CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 7/41 plugged by the defendant no.1 without the aid of the police. It is further stated that the recommendation of Chief Engineer to make the provision for the passage did not have the effect of creating a right in favour of the plaintiff and since it did not have the effect of creating a right, the same cannot be claimed by the plaintiff and enforced by filing of this suit. It is further stated that there is no kharanja on the said plot and plot is vacant. The plaintiff have been using the said passage by demolishing the boundary wall. It is stated the other passage which was made by the plaintiff by demolishing the wall about 20 ft. wide is still there.
13. It is stated that the land from which the plaintiff wants the path is situated in Khasra No. 116/93/1 Mauza of Yusuf Sarai and this entire land belongs to DDA and has been sold to the respondent no.3 by allotment as Plot No.1 for a sum of Rs.22 Crores. It is stated that the right of defendant no.3 is in serious jeopardy if the plaintiffs are allowed to continue to encroach upon the said plot and use it as a link road connecting their houses to the main Mehrauli Road.
14. It is stated that there was a passage adjacent to the Nallah from where the plaintiffs had access to Gautam Nagar via road 80 ft. wide from where the plaintiff could reach the main Mehrauli Road. However, due to unabated unauthorized occupation of the land, the passage adjacent to the Nallah which was sufficiently wide was reduced to 4 ½ feet wide. However, the passage which is 4 ½ feet wide adjacent to the Nallah is still available to the petitioners for having access to the main Mehrauli Road via Gautam Nagar road.
CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 8/41
15. Plaintiffs filed replication to the written statement of defendant no.1/ DDA, in which they denied the averments made in the written statement and reiterated the averments made in the plaint. It is stated that vide order dated 12.02.1998, Local Commissioner was appointed to visit the site and the Ld. Local Commissioner in her report stated that the passage shown by her in her report and the passage shown by plaintiffs in their site plan is the only available, approachable and accessible passage/access to the plaintiffs for ingress and egress from their houses to road.
16. Defendant no.2/ MCD filed the written statement. The defendant has taken the preliminary objections that the suit of the plaintiff is barred under Section 477/478 of the Delhi Municipal Corporation Act. The suit of the plaintiffs is without cause of action qua answering defendant. There is no proposal with the answering defendant for closing or causing any obstruction to the plaintiffs from the use of passage as disclosed in the plaint. The area of Gautam Nagar has been partly handed over by the DDA to the MCD for maintenance and development works during the year 1985 and the layout plan of the entire Gautam Nagar area has been prepared by the DDA itself. The Plot No.1, Yusuf Sarai, New Delhi as shown red in the sketch plan is being manned and controlled by the DDA itself. It is admitted that on one end of the houses of the plaintiffs, there is a Nalla and the present passage as disclosed in the plaint is the only 'Rasta'. It is stated that the portion shown in 'Black' in the appended sketch plan is the lane made of Kota stone within the jurisidction of the MCD and the sae is beign exclusviely used CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 9/41 by the plaintiffs for ingress and egress to their respective houses which joints to the Plot No.1, Yusuf Sarai, New Delhi vested with the DDA. On closing the Kota stone lane at portion marked green, there will be no 'Rasta' to the plaintiffs house which may cause great hardships to the plaintiffs in general.
17. It is further stated that in CWP 2283 of 1989 titled 'Shri H.S. Gautam vs. Lt. Governor & Ors.' the Hon'ble Court vide orders dated 10.05.1995 directed the Municipal Corporation of Delhi to consider the proposal of covering of the NALLA within its area of activity without prejudice to the rights and contentions of the parties. After constituting a Task Force for covering the Nallas in Delhi and several meetings it was decided in the meeting held on 24.05.1996 in the Chamber of the Principal Secretary, Urban Development Department, Delhi Administration, that the 'Coverage of AIIMS Nalla was not found feasible as there were pucca structures on both sides of the Nalla and Deep sewer is running on the bed of Nalla. It is stated that the matter was further considered afresh by the General Wing of the MCD in consultationw itht he technical staff of the Delhi Water Supply Seweage Disposal Undertaking during the month of August, 1997 and it was again decided that the Gautam Nagar Nalla cannot be covered due to the reasons that it becomes very difficult to desilt, clean and maintain the cunnette and the the nalla; as sewage/sullage flowing through the nallas is highly inflammable gases and which will accumulate after covering of the Nallas; there is also some advantage in allowing expose of such sewage/sullage to the sunlight; it also recharge the water table during the rains.
CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 10/41
18. It is stated that no order/directions are liable to be passed by this Court qua answering defendant and the suit of the plaintiff in so far as it pertains to th answering defendant is liable to be dismissed.
19. On reply on merits, the averments made in the plaint are denied as wrong and incorrect. It is stated that the plaintiffs are not entitled for any relief whatsoever as prayed for against the MCD and suit is liable to be dismissed.
20. Plaintiffs filed replication to the written statement of defendant no.2/ MCD, in which they denied the averments made in the written statement and reiterated the averments made in the plaint. It is stated that the passage in question is the only Rasta for ingress and egress to the plaintiff's house which if closed/blocked would cause great hardship to the plaintiffs as they would became totally land locked. Right from the beginning till some time in 1989, the plaintiffs have been enjoying uninterrupted use of the passage in question for ingress and egress to their houses from the outside world, which was and is the only passage available to them from their houses.
21. The defendant no. 3/ Indian Oil Corporation filed written statement. In the preliminary objections, it is stated that the alleged plaintiffs are not the owners of 'Dominant heritage' and no ownership of the same vets with them. The suit neither pleads nor demonstrates any cause of action that has arisen in favour of the plaintiffs and against the defendants or against the answering defendant. The plaintiffs have no legal or vested right of use of the land in question CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 11/41 nor have the plaintiffs been able to demonstrate the same either on the basis of pleadings or documents. The alleged plaintiffs have no easementary right that can be said to have been acquired by them either by prescription or grant or otherwise.
22. It is stated that the suit is also miserably barred by limitation. The suit is otherwise is not maintainable. The plaintiffs themselves in the para 16 of the plaint pleaded that cause of action arose qua the answering defendant in 1989 when "apprehension arose that defendant no.3 sought to close the passage". The suit has been filed in 1998 after almost 9 years of the said alleged arising of the cause of action. The plaintiff cannot rely upon the order of Hon'ble Division Bench dated 21.11.1997 directing the plaintiff to approach 'the Civil Court' as it is well settled principle of law that civil actions are governed by the law of limitation and cannot by judicial orders or pronouncements. The suit has also been undervalued and proper Court Fee has not been paid by the plaintiffs.
23. It is stated that the answering defendant was allotted a building site measuring 2,438.10 square meters bearing Plot No.1 in the Commercial Complex, Yusuf Sarai, New Delhi by DDA. The land in question had been earmarked for a Community Centre Complex and as part of the same IOC was to construct a multi storeyed complex with provisions for shops/shopping complex on the ground floor. Subsequently, the DDA permitted IOC to build and house its Marketing Division in the said area without making provisions for shops/shopping complex. The IOC paid an additional sum of CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 12/41 Rs.5,11,19,989/- to DDA as additional premium for this purpose. The allotment was made by DDA on behalf of the President of India for the purposes of construction of a Commercial Building comprising of Ground Floor and 11 floors above it with 2 basements so as to have a total exploitable area of 12,227.85. The allotment after due negotiations resulted in the giving of the possession of the plot to the answering defendant on 24.10.1989. A perpetual lease was executed in favour of the answering defendant on 07.06.1991 so as to take effect from 23.02.1989. The answering paid a sum of Rs.22 Crores by way of purchase consideration to DDA. The defendant constructed a multi storeyed commercial building ton the said plot which construction commenced from June, 1991 and was completed in 1997. The safety and security of the building is of utmost National importance.
24. It is stated that there are approximately 700 employees working in the building situate at Plot No.1, Yusuf Sarai, New Delhi and more than 300 visitors on a daily basis visit the building for official work. The capacity of basement parking is only 70 cars whereas the visitors's cars alone on a daily basis averages to about 100-250. For this reason also the area adjoining the building of IOC on plot no.1, Yusuf Sarai is required on an exclusive basis by IOC. The answering defendant has spent more than Rs.35 lakhs on the roads, parking and land scaping all around the building and an additional amount of Rs.10 lakhs for making and maintaining lawns around the building. For the car parking in front of the building alone the answering defendant has spent approximately Rs.15 lakhs.
CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 13/41
25. It is stated that the facts mentioned above demonstrate that the answering defendant ought to have uninterrupted and unhindered user of the area surrounding the building situate at Plot No.1, Yusuf Sari, New Delhi, both on account of National safety and security issue and also on account of equity in law as the answering defendant has developed the area surrounding the building by investing good money in it. The plaintiffs have no legal or vested right of user of any of the land adjoining/adjacent to the area on which the building of IOC stands.
26. It is stated that the plaintiffs had filed a Writ Petition bearing No. 2283/1989 before the Hon'ble High Court with respect to non-closing/preventing passage of 20 ft. wide and 10 ft. wide respectively. The answering defendant filed objection to the alleged easementary rights of the plaintiffs and had also give the details of the land purchased by the answering defendant for valuable consideration and the usage of the said land. During the pendency of the said Writ Petition, the answering defendant had submitted three options to solve the problem of the ingress and egress of the plaintiffs. A fourth option was also submitted later on during the pendency of the hearing. The Hon'ble DB vide its order dated 10.05.1995 noted that three out of the four options had been ruled out by DDA. Fourth option was also not found practicable by the MCD and was so stated by the MCD in its affidavit dated 22.08.1997.
27. It is stated that the present plaintiffs have chosen to challenge the decision of the MCD rejecting all the four CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 14/41 options of ingress and egress proposed before the Division Bench and considered by the appropriate authority. Plaintiffs have neither challenged the procedure adopted for arriving at the said decision rejecting the said four options nor have they challenged the decision itself on merits. Therefore, matter stands addressed and decided against the plaintiffs. However, the answering defendant stated that the four options submitted before the Hon'ble Division Bench by it can be considered.
28. On merits, the averments made in the plaint are denied as wrong and incorrect. It is stated that the suit ought to be dismissed summarily.
29. Plaintiffs filed replication to the written statement of defendant no.2/ MCD, in which they denied the averments made in the written statement and reiterated the averments made in the plaint. It is stated that the written statement of the defendant no.3 is misconceived. In fact in one of the applications, the defendant no.3 has stated that "4. The defendant no.3 submits that it has always been willing to settle the dispute. However, it is pointed out that the lease deed between the defendants herein and the D.D.A., is with respect to the built up area and not the surrounding area....". It is stated that merely because defendant no.3 has encroached upon and developed a plot surrounding plot No.1, that would not vest in it any better right over the surrounding area than those of the plaintiffs as they do not have any passage or access to their residential houses except the passage in question.
CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 15/41
30. On the pleadings of the parties, the following issues were framed on 28.01.2005 by my Ld. Predecessor:
1. Whether "RASTA' claimed by the plaintiff is on the land belonging to the D.D.A.?
2. Whether the plaintiff is entitled to the passage as claimed in the suit?
3. Whether the notice under Section 53 B of the D.D. Act has not been served upon the defendant no.1 (D.D.A.)?
4. Relief.
31. In support of their case, plaintiffs have got examined PW1 Ms. Sangeeta Jain, Advocate (Local Commissioner) and PW1 (wrongly mentioned which should be PW2) Sh. R.S. Gautam - plaintiff no.1. Thereafter, P/E was closed on 18.04.2013.
32. The defendant no.1 got examined DW1 Sh. Jai Parkash, Patwari and thereafter, as per statement of Sh.Sanjay Sharma, Counsel for the defendant no.1/ DDA, the evidence of DDA was closed on 28.02.2017.
33. The defendant no.3/ IOC got examined D3W1 Sh.Ashok Kumar Bhatia thereafter, D/E was closed vide order dated 03.06.2017.
CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 16/41
34. PW1 Ms. Sangeeta Jain, Local Commissioner deposed that she had visited the spot on 18.02.1998. He had prepared the rough notes/proceedings at the spot, which is in her hand and is Ex. PW1/1. She had also taken the photographs numbering 64 at the site which are Ex. PW1/2 (collectively). She had submitted her report dated 23.02.1998 to the court on the basis of inspection conducted by her as Ex. PW1/3.
35. PW1 in her cross-examination by Ld. Counsel for the defendant no.1, deposed that at the time of inspection one Dy. Manager of defendant no.3 and Advocate of defendant no.3 were present. He has mentioned the names of the person who were present at the spot at the time of inspect in her rough notes Ex. PW1/1. She did not think any officer of the DDA was present at the time of inspection. The photographs were taken by her as per the orders passed by the Court with the help of a photographer. The payment of the photographer must have been made by the plaintiff.
36. PW1 in her cross-examination on behalf of defendant no.3, in reply to a question that whether Hon'ble High Court had authorized to form an opinion or to give opinion, she replied he has not given any opinion and she submitted her report as per order passed by the Court. She further deposed that she had not measured the roads. She volunteered that there was no direction to take road measurement. Further, to a specific question that there is already passage available from the road towards the houses of the plaintiff from the side of Sharma Property as shown in photographs serial no. 57 to 59, the PW1 replied that as per CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 17/41 her report this could not be said to be a passage from the plaintiff's house to the road. She further deposed that Gate reflected in photograph no.1 in her report belongs to Indian Oil Corporation Building. She did not know that roads reflected in photographs no. 5 to 12 was built by IOC. As per report this could not be said to be passage in the Man Mohan Building and para 11 of her report will be read. She was not aware which passage was available to the plaintiff for egress or ingress before the construction of the Indian Oil Corporation building and road. She denied the suggestion that she has expressed her opinion in her report.
37. PW1 (wrongly mentioned as PW1, which should be PW2 ) Sh. R.S. Gautam - plaintiff no.1 tendered his affidavit in evidence as Ex. PW1/A, in which he reiterated the averments made in the plaint. He got exhibited site plan as Ex. PW1/1; letter dated 03.09.1984 as Ex. PW1/2; recommendations made by Chief Engineer CPD-VII, DDA as Ex. PW1/3; copies of letters dated 18.10.1985, 18.09.1985 and 03.09.1984 as Ex. PW1/4 to PW1/6 respectively and copy of letter dated 21.11.1997 as Ex. PW1/7.
38. PW1 Sh. R.S. Gautam in his cross-examination by Ld. Counsel for the defendant no.1 to a specific question that since when he has been residing in Kaushambi, he replied that since the suit property is in a dilapidated condition his family has shifted to Kaushambi on a temporary basis about 2-3 years ago but their goods are still lying in the suit property. His nephew Dr. Rishi Kumar Gautam has been residing in the suit property. He volunteered that he himself also residing in the suit property. He has not filed the copy of CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 18/41 the sale deed executed in respect of the suit property in his father's favour. There was no mention of any Rasta in the said sale deed. He volunteered that only Khasra number of the property has been mentioned therein. He admitted that in para III (d) of his affidavit Ex. PW1/A, he has inter alia mentioned that there is a pucca road of 20 ft. wide constructed and maintained by defendant no.2/ MCD. He further admitted that he still use the same road for going to Mehrauli Road. To a specific question that there aa jhuggi jhopdi cluster on a chunk of land in Yusuf Sarai which had been acquired by the DDA and the DDA demolished the said jhuggi jhopdi cluster and developed a plot meant for Community Centre there, he replied that there was infact kuchha pucca houses on this chunk of land and the same were removed by the DDA in 1975 and the DDA developed a plot meant for Community Centre there. He did not have the copy of the resolution no.11 vide which their colony/locality had been regularized by defendant no.1 DDA for all purposes on 13.02.1979. He admitted that they have still a pucca road in order to go to Mehrauli Road from th suit property.
39. PW1 Sh. R.S. Gautam in his cross-examination conducted by Ld. Counsel for the defendant no.2/ MCD admitted that before filing the present suit, the plaintiffs did not serve the MCD with any notice. It is a matter of record that documents Ex. PW1/1 to Ex. PW1/7 did not bear his signatures. He cannot comment whether only the maintenance and development work of Gautam Nagar locality has been handed over to the MCD in the year 1985 and the MCD does not enjoy any other power in respect of the said locality. To a specific question that in the year 1985 the McD CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 19/41 had made efforts to cover the nala of Gautam Nagar and Yusuf Sarai localities but could not succeed, he replied that the it is DDA who had covered half of the said Nala in or about the year 1985. He did not know whether the layout plan in respect of Gautam Nagar and Yusuf Sarai has been prepared by the DDA. He denied the suggestion that the MCD is not a necessary party in the present suit. He admitted that he has not filed any receipt issued by the house department of MCD in respect of the suit property.
40. PW1 Sh. R.S. Gautam in his cross-examination conducted by Ld. Counsel for the defendant no.3 deposed that he did not know whether the plot in question is situated in a private colony. He volunteered that same had been purchased by his father. He deposed that it may be correct that initially the colony was an unauthorized colony. He had been residing in the suit property from beginning. He has not brought the Voter I Card issued at the address of the suit property. He had been residing in Pushp Vihar, Kaushambhi for the last 3-4 years. His father left behind two sons and four daughters. Now it has come to his notice that his father had executed a Will in respect of his properties including the suit property during his life time. He came to know about this fact after the death of his elder brother in 2005. Without seeing the Will, he cannot tell as to what provision his father had made in respect of the suit property. Hie father died sometimes in 1966. Sh.J.N. Gautam is his cousin. He did not have any title deed in respect of the suit property. He volunteered that it is a joint family property and in the house tax record his later brother Sh. H.S. Gautam is the recorded assessee in respect of the suit property but the electrictiy and CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 20/41 water connections installed in the suit property are in his name.
41. PW1 Sh. R.S. Gautam in his cross-examination conducted by Ld. Counsel for the defendant no.3 further deposed that he has not filed any record/document with regard to the regularization of their colony. He volunteered that Secretary, DDA has already filed an affidavit to this effect in this court. He has never paid any development charges in the DDA. He volunteered that the same have never been demanded. To a specific question that did your brother or you ever apply to DDA for regularizing your house, he replied that his brother had received a letter from the Screening Board of DDA and my brother had been informed that the DDA had accorded its sanction to the passage/ rasta in dispute. He never applied for regularization of their house. He cannot rad any site plan. He has seen the photographs Ex. PW1/D-1 to Ex. PW1/D-2 and the same are correct according to the site. The rasta/passage shown in these photographs is coming from Manmohan Building, Yusuf Sarai and going towards Mehrauli, Badarpur Road. He never use this passage/rasta for going to his house. He volunteered that this is a private passage/rasta meant for the residents of Manmohan building. He denied the suggestion that it is a common rasta/passage for use by all and sundry. Photographs Ex. PW1/D-3 to Ex. PW1/D-5 are correct. He deposed that at the time of purchase of the plot underneath the suit property by his father, the road in front of it was about 20 ft. wide. He denied the suggestion that the said road belongs to DDA or MCD. He volunteered that a pucca road has been constructed by the MCD.
CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 21/41
42. PW1 Sh. R.S. Gautam in his cross-examination conducted by Ld. Counsel for the defendant no.3 further denied the suggestion that jhuggi jhopdis had been removed by the DDA and the land was developed by the DDA. He volunteered that there used to be pucca built houses in the area which had been demolished by the DDA and alternative plots in various sizes upto 200 sq. yds. had been given to them. He deposed that to his knowledge some alternative plots had been given in Gautam Nagar area and he did not know about the rest of the localities and locations where alternative plots might have been given. He has not mentioned in his plaint nor in his affidavit. He did not know when the jhuggi jhopdis in the area had been removed by the DDA and the land was acquired by the DDA. He did not know the year when the land in area had been developed by the DDA. To a specific question he replied that some portion of plot no.1 had been sold out to Indian Oil Corporation. He admitted that the nala has since been covered by the DDA and a pucca road had been constructed thereon. He did not know that the land in the area had been developed by the DDA for Community Centre and parking space but later on the same had been sold out to Indian Oil Corporation. He admitted that the parking space used by Indian Oil Corporation is at the height of about 1 ½ ft. from the level of their house.
43. PW1 Sh. R.S. Gautam in his cross-examination conducted by Ld. Counsel for the defendant no.3 further deposed that his brother had filed WP No. 2283/89 titled as 'HS Gautam & Ors. vs. Lt. Governor & Ors.' in respect of the same property in the Hon'ble Delhi High court and said WP CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 22/41 had been dismissed in 1997. He admitted that during the pendency of the writ petition Indian Oil Corporation had been doing construction on the plot allotted to it by the DDA and the construction of a multi-storeyed building, land scaping work and the parking area space work came to be completed in 1997. He denied the suggestion that Indian Oil Corporation has not encroached upon any common rasta or passage. To a specific question, he replied that more than 70 houses are there in Manmohan building. To a specific question that how many passages/ rastas are exclusively meant for the residents of this building, he replied that there is one passage/rasta leading to main Mehrauli road and they have carved out many internal passages/rastas. He did not know on what basis the residents of Manmohan building claim their exclusive right on these passages. There may be one or two shops for daily use commodities on the passages/rastas leading to Manmohan building.
44. DW1 Sh. Jai Parkash, Patwari from DDA tendered his affidavit in evidence as Ex. DW1/A, who reiterated the defence of the defendant no.1/ DDA in his affidavit. In the cross-examination, he deposed that he has not brought the office order posting him as a Patwari in the locality of Yusuf Sarai although the same is of the year 2013. Prior to 2013 he has never lived in this area and he has never been a Patwari in this area nor has he ever demarcated this area and never had the owner of having demarcated this locality even after having been posted as Patwari with DDA in this area. He has never seen much less read any demarcation report of this locality at any point of time. To a specific question, he replied that he does not know the names of the members of the CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 23/41 Screening Board. He cannot say who all were the members of the Screening Board even after looking into the record brought by him. He did not know who was the Chief Engineer regarding whom he had made his deposition in para 4 of his affidavit. He did not know if the Chief Engineer is invariably a member of the Screening Board.
45. DW1 Sh. Jai Parkash, Patwari further deposed in his cross-examination that he saw the passage 20 ft. wide referred to in para 5 of his affidavit. To a specific question that as to when this passage 20 ft. wide referred to in para 5 of his affidavit was reduced to 4 and 5 ft by encroachment as propounded in para 8 of his affidavit, he replied that he can say about the same after going through the record and after going through the record, he replied that he did not know as to when encroachment took place in the locality and passage was reduced to 4 ½ feet only. He never lodged any complaint with the police or his superior officials regarding the encroachment. He has never prepared any plan of the locality to show the passages available to the plaintiffs for ingress and egress. He has never taken any photographs of the locality to establish all what he has said in his affidavit regarding breaking of walls and encroachments. He has never measured the khasra referred to in para 6 of his affidavit. He has never demarcated khasra 116/93/1 Mauza Yusuf Sarai. He volunteered that this is the duty of the office kanoongo and not the Patwari. He did not have any documents regarding allotment made in favour of defendant no.3 for the consideration of Rs.22 Crores. He has deposed the contents of para 6 of his affidavit on the basis of his record.
CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 24/41
46. DW1 Sh. Jai Parkash, Patwari further deposed in his cross-examination that he has deposed the text of para 6 of his affidavit on the basis of record maintained by the engineering department of DDA. He had seen this record in 2014. There is nothing to establish that he had inspected or seen that record in 2014. H has not seen the original lease in favour of IOC but seen a copy thereof. To a specific question to demarcate the lease deed on the judicial file, he points out to the photocopy of perpetual deed filed by the plaintiff along with list of documents dated 20.03.2007. He did not ever inspect the judicial file. He saw this lease deed in the files of DDA. He deposed that there is no passage through the property of Indian Oil Corporation that leads to the houses of the plaintiffs. The wall referred to in para 5 of his affidavit was not punctured or demolished in his presence. The wall that was punctured as per his version was not prepared in his presence. He cannot say in which year it was punctured and in which year it was prepared. He admitted that he never saw the punctured wall or the repaired wall. He denied the suggestion that the plaintiffs have always been using the passage for ingress and egress through the land which is the subject matter of allotment by DDA to IOC. He denied the suggestion that neither DDA nor IOC have the authority to check this passage. He cannot sway even aftr referring to the text of para 2 of his affidavit as to when the plaintiffs jointly or severally encroached upon the lands and raised unauthorized construction of their houses. He has seen the notification regularizing the locality issued by the DDA in 1979 but he cannot produce the copy thereof. He has seen it in is office record. He can produce the same if required.
CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 25/41
47. DW1 Sh. Jai Parkash, Patwari further deposed in his cross-examination that he had seen the record on which basis his affidavit Ex. DW1/A was got prepared by him. He cannot tell the exact date and month but it was in the year 2013. The documents were already available in the litigation file. He did n ot know whether he had filed the record brought today by the department was enclosed along with his affidavit. He was not present when the plaintiffs had encroached the Khasra no. 116/93/1 min, Village Yusuf Sarai. The plaintiffs had constructed houses. He did not remember the date of allotment of above said Khasra to defendant no.3 Indian Oil. The Khasra No. 116/93/1 min was comprising of total land of 40 Bigha 10 Biswa.
48. DW1 Sh. Jai Parkash, Patwari further deposed in his cross-examination that the allotment letter dated 23.2.1989 is with regard to plot no. 1 Yusuf Sarai in favour of defendant no. 3, IOC, original of which is seen returned and hotocopy taken on record. He was not present at the time of Kabza Karwai of the land in question. He has no knowledge whether any possession slip was taken by DDA by IOC. He never took the measurement of the encroachment/houses of the plaintiffs. The houses of plaintiffs are situated in Khasra No. 116/93/1 min, Village Yusuf Sarai. He further deposed that as per record the houses of the plaintiffs were situated in the above said Khasra number. No document filed on record in this regard. During his tenure he had not written to Commissioner Land that plaintiffs had constructed their houses after encroachment of DDA Land. He did not remember the date, month and year when IOC, defendant no. 3 had constructed boundary wall on the above said allotted CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 26/41 plot. The houses of the plaintiffs are out side the boundary wall of defendant no. 3. He admitted that house of plaintiffs are situated outside the boundary of plot of IOC. No document available on record to show that the houses of the plaintiffs are on Nazul land. No house was constructed on the plot allotted to IOC. No house was demolished. He volunteered that the plaintiffs were repeatedly breaking the boundary wall of the plot of IOC and DDA was removing the encroachment made by the plaintiffs of the boundary wall. A FIR was lodged and again a complaint was lodged with the police. He has no knowledge with police had registered any case or not or any proceedings under Public Premises Act initiated or not. There is a passage which leads to Gautam Nagar at Khasra No. 116/93/1 min, Village Yusuf Sarai. He volunteered that no passage is available to the land allotted to IOC, defendant no. 3. He has no knowledge since when this passage is in existence in Khasra No. 116/93/1 min. To a specific question to see the Aks Shzra of Village Yusuf Sarai and specify the above passage, he replied that the copy of Aks Shzra brought by witness does not show any passage. The Aks Shzra is Ex. D1W1/X1.
49. DW1 Sh. Jai Parkash, Patwari further deposed in his cross-examination that the houses of the plaintiffs are situated at a distance of 100 feet of the boundary wall of the defendant no. 3, IOC. He can demarcate the house of the plaintiffs in the Aks Shzra Ex. D1W1/X1. The house of plaintiffs are situated at point Z encircled. There is no Ganda Nala/drainage in between the boundary wall of IOC plot and house of plaintiffs. He had filled up outdoor register after visiting the suit premises. He did not remember the date. It CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 27/41 was after the filing of the present suit. He did not show the entry to the advocate when affidavit was got prepared. He did not remember the date when Chief Engineer South East made recommendation to standing Committee, DDA for providing passage for the Abadi of Gautam Nagar. Standing Committee did not give permission as per recommendation of Chief Engineer, No decision of standing committee filed on record. He did not tell the fact about the decision of standing committee to his advocate when his affidavit was prepared. He denied the suggestion that standing committee did not declined the recommendation of the chief engineer. He denied the suggestion that is the reason DDA is not producing the standing committee's decision. He has no knowledge that screening committee never refuse or recommended for giving passage to the residence of Gautam Nagar. He personally never seen the plaintiffs to demolishing the boundary wall of the IOC plot. There is a complaint to the police by the Engineering Department. Witness has shown a complaint dated 31.07.1989 from the record, copy of the same is retained and Ex. D1W1/X2. He admitted that the complaint pertains to breaking of boundary wall only.
50. DW1 Sh. Jai Parkash, Patwari further deposed in his cross-examination that there is a passage not from the boundary wall of IOC but it is from the side of the wall. He volunteered that the site plans are prepared by the Engineering department. He has not made entry in outdoor register about the 20 feet passage in existence. He did not know whether DDA had issued notice to plaintiffs for encroachment of DDA land. On the day of preparation of his affidavit Nala was in existence but it was covered by CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 28/41 constructing a road. He did not know when the road was constructed on the Nala. One can go to Gautam Nagar and Yusuf Sarin through this Nala Road. It might be 80 feet wide. He volunteered that some passage is also left. The witness ask to put mark on the Aks Shzra Ex. D1W1/X1 to show the road at Mark Y. Witness further ask to identify the plot of IOC at Mark Z. He denied the suggestion that his marks on Aks Sazra on Ex. D1W1/X1 with regard to houses of the plaintiffs are wrong. He volunteered that he has marked by way of estimation. He denied the suggestion that he is deposing as per instructions from my senior on the basis of what is scribed in the written statement of DDA.
51. D3W1 Sh. Ashok Bhatia, Manager, Indian Oil Corporation tendered his affidavit in evidence as Ex. D3W1/A, in which he reiterated the defence taken by the defendant no.3/ IOC in its written statement. He got exhibited copy of lease deed dated 07.06.1991 as Ex. DW3/1; copy of site plan attached with lease deed as Ex. DW3/2 and copy of site plan Ex. DW3/3.
52. D3W1 Sh. Ashok Bhatia in his cross-examination deposed that he is M.A. in Public Administration and B.Com. Pass. He has not brought any such certificate. He has seen the original affidavit Ex. D3W1/A. It was dated by him personally as 25.07.2013 when he has signed it. He volunteered that there may be confusion of putting of date by him at the sign on above affidavit. He denied the suggestion that the purported attestation is farcical and has been procured.
CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 29/41
53. D3W1 Sh. Ashok Bhatia in his cross-examination deposed that the witness shown the plan Ex. DW3/3. The witness states that there is no parking area earmarked in the plan Ex. DW3/3. There is no specific letter available with defendant no.3 wherein DDA had specified the parking area. The witness has shown Ex. DW3/3 and asked to identify as to where on this copy on the judicial record, the signatures of the lessor and the lessee appear. The witness says - on this layout signatures are not there but he has shown the original DDA plan approved by DDA having the signatures of authorized signatory from DDA. He denied the suggestion that Ex. DW3/3 on the judicial file is not an exact copy of the original site plan which he has brought to court. To a specific question that to see the original site plan that he has brought to court and in particular, Note the words 'Nala to be covered' that are to be found in the original site plan and reply whether these words are there in Ex. DW3/3. He replied that the question put up regarding 'Nala to be covered' are not found in the plan Ex.DW3/3. The area where it is written as proposed road has been built now and the Nala is covered. There is no open drain now. This witness has been asked to see the original site plan that he has brought to court and in particular, Note the words 'DAV School' which are found in Ex. DW3/3 and are encircled by red colour in Ex. DW3/3 at point A are not found in the original site plan which he is producing. He replied that it is very much there in the original site plan. During the cross-examination, the court has observed that the original plan brought by witness did mention on right hand side notings in original plan but the same are not filed in photocopy exhibited as Ex. DW3/3.
CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 30/41
54. D3W1 Sh. Ashok Bhatia in his cross-examination admitted that Ex. DW3/3, photocopy of the plan is not the exact replica of original plan brought by him in the court. he can search for original replica in the office although he has retired now. He has been asked to see Ex. DW3/3 and point out as to how many gates for ingress and egress are visible in Ex. DW3/3 into the land which you say is owned/demised to IOC/defendant no.3. To which he replied that there are two gates. He cannot mark the same on the site plan Ex. DW3/3. To a specific question that the main entrance is shown at point B on Ex. DW3/3 and the Exit is shown at point C on the same site plan placed on record by defendant no.3, he replied that it is wrong. There is only one gate for in and out. He has been asked to read para 9 of his affidavit and earmark on Ex. DW3/3 the adjacent area on which DDA has conferred "unhindered rights over adjacent area". He replied, that he cannot mark on the layout the area which is "unhindered rights over adjacent area". He has been asked that if he cannot earmarked the area on what basis has be so deposed in para 9 of his affidavit. He has refreshed his memory by reading he affidavit and replied that these are the areas in front of their office building to build the road and land scaping around the office building and to cover the open area which was earlier 'Kacha' area and IOC spent huge amount by fencing it and making it for use as our parking. To a question that is the area referred to by him as "unhindered rights over adjacent area" visible in site plan Ex. DW3/3 or not, he replied that he cannot earmarked in the plan because it is already marked.
CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 31/41
55. D3W1 Sh. Ashok Bhatia in his cross-examination further deposed that the expenditure record of fencing is old. It has to be searched in the office. He had checked the record while incorporating para 11 of his affidavit. The defendant no.3 spent Rs.35 lacs on road, parking and land scaping. He has not placed on record any record in this regard. The parking, land scaping area was not incorporated in the lease given by DDA to defendant no.3. He further volunteered that the ground floor of the building was meant for shopping complex. IOC paid over Rs.5 Crores as premium to change this shopping complex as office building and the open parking area was meant for shopping area and hence, they are using this parking specifically meant for that shopping complex. DDA has not given anything in writing about above said change of user from shopping complex to office complex. The demand of Rs. 5 Crore which he has mentioned in his statement just made in the preceding paragraph must have been in writing. He volunteered that he has to check it from his office record. The terms of the perpetual lease deed never varied. It was done before signing the perpetual lease deed. He has brought the original sanctioned plan of DDA, same is Ex. DW3/X1. At point X to X1 on Ex. DW3/X1 mentioned that DDA has sanctioned for construction of 11 floors. He has shown another original plan of DDA, original seen and copy is Ex. DW3/X2, which is sanctioned plan of 11 floors. He has been asked to look at Ex. DW3/X2 and tell as to whether there exist two restaurants and 11 shops on the ground floor in this complex or not. He replied that as on today neither two restaurant or 11 shops in existence at site on the ground floor.
CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 32/41
56. D3W1 Sh. Ashok Bhatia in his cross-examination to a specific question that the construction that was raised by IOC at site was not in accordance with the sanctioned plan which he has produced as Ex. DW2/X2, he replied that on this ground floor and shopping complex IOC has paid over Rs.5 Crores to DDA to change this plan of restaurant and shops to build their office. To a specific question when the above said Rs.5 Crores were paid, he replied that he did not remember. He had to check the office record. To a question whether payment was prior to execution of perpetual lease or after execution of the same, he replied that it was prior to execution of perpetual lease deed. It was put to him that the perpetual lease deed was executed before the sanctioned site plan. He replied that it is incorrect. Perpetual lease deed was executed on 07.06.1991 and the sanctioned plan was accrued on 17.05.1991.
57. D3W1 Sh. Ashok Bhatia in his cross-examination further deposed that he has not received any personal security threats. He can show the complaints lodged with the police by defendant no.3/IOC regarding security threats. The witness has shown the photocopy of the office of complaint dated 03.07.2012. He has not brought the original office copy. He denied the suggestion that above said complaint was lodged after 10 years of institution of present suit. He knew Sh. Mahesh Kumar, who is having shop on the main road of Yusuf Sarai Road. It is situated apx. 10 mtrs. from the boundary of the IOC plot. He did not know since when the said shop is in existence. He had seen in the year 1997 when he was transferred to this office. The main MB Road was blocked by shop. He again said this shop is situated on the CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 33/41 main MB Road. He admitted that MB Road is situated around 15 Kms. from the plot of defendant no.2. He further admitted that the shop of Mahesh Kumar situated at Aurbindo Marg (Old Mehrauli Road) and also not block any road. He cannot say whether Mahesh Kumar is the owner of said shop and he has not encroached any land. He has mentioned in para 12 about encroachment by Mahesh Kumar is that he had put his building material for sale on the main road and encroached the said road. Sh Mahesh Kumar is dealing with the sale of building material.
58. D3W1 Sh. Ashok Bhatia in his cross-examination further deposed that he was not present at the time of visit of Local Commissioner. He cannot say that shop of Mahesh Kumar is in existence for the last 60 years. He cannot say whether the residents of Gautam Nagar have right of passage through the IOC land (disputed suit land) for the last 40-45 years. He volunteered that the residents of Gautam Nagar have no passage through IOC plot. They have not maintained any register at their gate for ingress and egress for the residents of Gautam Nagar. He volunteered that anybody can go through the main Gate of IOC. He admitted that the gate remained opened till 11 p.m. Even then no lock put to the gate but a security guard is deputed. He denied the suggestion that the plaintiffs are enjoying ingress and egress into Yusuf Sarai through this land demised to IOC even today.
59. It is pertinent to mention that during cross- examination of D3W1 Sh. Ashok Bhatia, Ld. Counsel for the plaintiff has pointed out that affidavit Ex. DW3/A contains legal matrix and same may be deleted from the affidavit. Ld. CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 34/41 Counsel for the defendant no.3 agreed to the same. Therefore, para 4 portion Z to Z1, para 5, para 10, para 11 and 13 are deleted.
60. I have heard Sh. Deepak Gupta, counsel for the plaintiffs; Sh. Sanjay Sharma, Counsel for the defendant no.1/ DDA; Ms. Nagina Jain, Counsel for the defendant no.2/MCD; and Sh. M.M. Kalra, Counsel for the defendant no.3/ IOC and also perused the entire material on record including written arguments filed on behalf of defendant no.1 and defendant no.3. My findings on issues are as under:
ISSUE NO.3
61. Issue no. 3 is taken first. The onus to prove this issue is on the defendant/DDA. Ld. Counsel for the defendant no.3/ DDA has taken specific preliminary objection in the written statement that mandatory notice under Section 53-B of DDA Act has not been served. In the replication, it is stated that ex-parte interim order sought by the plaintiff, therefore, Section 53-B DDA Act has no application. Let us go through Section 53-B of DDA Act, which is as under:
"53B. Notice to be given of suits. - (1) No suit shall be instituted against the Authority, or any member thereof, or any of its officers or other employees, or any person acting under the directios of the Authority or any member or any officer or other employee of the Authority in respect of any act done or purporting to have been CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 35/41 done in pursuance of this Act or any rule or regulation made thereunder until the expiration of two months after notice in writing has been, in the case of the authority, left at its office, and in any other case, delivered to, or left at the office or place of abode of, the person to be sued and unless such notice states explicitly the cause of action, the nature of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiff and unless the plaint contains a statement that such notice has been so left or delivered.
(2). No suit such as is described in sub-
section (1) shall, unless it is a suit for recovery of immovable property or for a declaration of title thereto, be instituted after the expiry of six months from the date on which the cause of action arises.
(3). Nothing contained in sub-section (1) shall be deemed to apply to a suit in which the only relief claimed is an injunction of which the object would be defeated by the giving of the notice or the postponement of the institution of the suit."
62. The prayer clause of the plaintiffs case is as under:
"a) Pass a decree declaring that the plaintiffs are entitled to the continuous use CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 36/41 of passage in question from their residential house through Plot No.1, Yusuf Sarai, New Delhi connecting the Main Mehrauli Road, Delhi;
b) Restrain the defendants no. 1 to 3 from closing or preventing or in any manner causing obstructions or hindrance to the plaintiffs from the use of the said passage from their residential houses connecting the main Mehrauli Road."
63. The plaintiff is claiming easementory right of continuous passage through plot no. 1, Yusuf Sarai, Delhi in th form of a declaratory decree and restraining the defendants from closing or preventing for use of said passage. Section 53-B of DDA Act puts a bar for instituting any suit until two months notice is given in writing to the parties. As per Section 53-B of the Act plaintiff is not claiming the only relief of injunction, therefore, in my opinion, the substantial claim of the plaintiffs are to have easementary right over plot no. 1 in the shape of passage. Hence, in these facts and circumstances of the case a notice under Section 53-B of the Act is mandatory. The requirement cannot be exempted. In my considered opinion, the present suit is barred by Section 53-B of the DDA Act. This issue is decided in favour of the defendant and against the plaintiffs.
ISSUE NO. 1 & 264. Issue nos. 1 & 2 are interconnected, therefore, taken up simultaneously. The plaintiffs have to establish their CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 37/41 right to the passage in plot No. 1, Yusuf Sarai, Delhi part of Khasra no. 116/193/1, Mauza Yusuf Sarai. The pleadings and evidence of parties discussed herein above in detail. The plaintiffs have to stand on their own legs to prove their case. It is pertinent to mention here that the plaintiffs have examined only one witness out of seven plaintiffs. It is admitted in the witness box by PW2 Sh. R.S. Gautam that he has not been living at the address given in the plaint and he shifted to Kaushambi. PW2 Sh. R.S. Gautam admitted that he has not proved or filed any document for purchase of the property belonging to him or any other plaintiffs. The plaintiffs have failed to establish that the possession of the houses by them are through legal process and legal transactions.
65. PW2 Sh. R.S. Gautam's deposition says about one Pt. Leela Ram was owner of suit property but no document proved on record. It is admitted by PW1 Sh. R.S. Gautam that in the year 1975 Jhuggi Jhopri cluster was removed from the land in question which has been acquired by DDA. Plaintiffs also not proved any resolution no. 11 whereby the colony Gautam Nagar was regularized by DDA for all purposes on 13.02.1979. PW2 Sh.R.S. Gautam also deposed that DDA had covered half of the said Nala of Gautam Nagar, Yusuf Sarai locality in and around 1985 and now came to know that rest of the Nala to be covered soon. The documents and photographs put to him as Ex. PW1/D-1 to D-5.
66. The testimony of DW1 Sh. Jai Prakash, Patwari and D3W1 Sh. Ashok Kumar Bhatia proved on record that DDA had allotted a plot through perpetual lease deed in CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 38/41 favour of defendant no.3/ Indian Oil Corporation on 07.06.1991 for a sum of Rs.22 Croress. The total area was 12,227.85 sq. meters. The perpetual lease deed is dated 06.06.1991. The defendant no.3/ IOC further paid Rs.5,11,19,989/- to DDA for conversion into a shopping complex vide Ex. DW3/3. Thus the plot no. 1, Yusuf Sarai belongs and owned by the defendant no.3/ IOC. The plaintiffs have failed to establish that plot no.1, Yusuf Sarai belongs to them and they have easementary right of passage. The site plan filed by plaintiffs along with the plaint Ex. PW1/1 is not proved as per Evidence Act. The person who prepared the plan of existing building in village Yusuf Sari has not appeared in the witness box. The site plan does not bear any signatures of the author of the site plan. The passage shown in the pink colour is not on the land owned by plaintiffs. The plaintiffs have miserably failed to prove the site plan Ex. PW1/1 as per site in the absence of any document. It is pertinent to mention here that as per Ex. PW1/7, earlier Writ petition filed by plaintiffs for claiming the same relief was dismissed.
67. It is pertinent to mention here that D1W1 Sh. Jai Prakash, Patwari from DDA in the detailed cross-examination deposed that there is no passage through the property of Indian Oil Corporation that leads to the houses of the plaintiffs. The wall referred in the affidavit not punctured or demolished in his presence. He further corroborate the fact that as per allotment letter dated 23.02.1999, plot No.1, Yusuf Sarai was allotted to defendant no.3/ Indian Oil Corporation. The houses of the plaintiffs are outside the boundary wall of defendant no.3/IOC and situated at the distance of 100 feet from the boundary of IOC. He further CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 39/41 proved the Aks Sazra Ex. D1W1/X1 where the houses of the plaintiffs are shown at point Z. The D1W1 further proved the complaints lodged by Engineering Department of DDA with the police on 31.07.1989 Ex. D1W1/X2 with regard to breaking of the boundary wall of IOC. He denied the suggestion that on the Aks Sazra Ex. D1W1/X1, the situation of houses of plaintiffs are shown wrongly. The testimony established that the plot no.1, Yusuf Sarai allotted to Indian Oil Corporation and plaintiffs have no right to use the plot no.1 as a passage. The Engineering Department constructed wall but same was also broken by the residents of Gautam Nagar and police complaints were lodged.
68. Now coming to the report of Local Commissioner Ex. PW1/3. According to the report of the Ld. Local Commissioner, the passage to the plaintiffs for ingress and egress from their houses to the road through plot No. 1, Yusuf Sarai also opened to the road at the outer of exit gate of the said plot. This passage from their houses to the road take entire circle. The passage of exit gate was objected by Indian Oil Corporation/defendant no.3. This passage has been constructed for safety measures, transportation facility, fire services purpose and cannot be used by the plaintiffs. In front of houses of plaintiffs, a lane made of tiles leads to Nala. The Nala is lying uncovered. The record and photographs also established that the passage claimed by plaintiffs exists on the plot of defendant no.3/ Indian Oil Corporation. It is not on the land belonged to the plaintiffs.
69. In my considered opinion, it is established on record that plaintiffs have no legal right, title, interest in CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 40/41 respect of plot no. 1, Yusuf Sarai, Delhi. Therefore, plaintiffs failed to establish their right of 'Rasta' through plot no. 1, Yusuf Sarai, Delhi. Accordingly, the issue nos. 1 & 2 are decided against the plaintiffs and in favour of the defendants.
ISSUE NO. 4 (RELIEF)
70. In view of my observations and discussion on the issue nos. 1 to 3, it is held that plaintiffs are not entitled to the passage/'Rasta' as claimed by them. Therefore, suit of the plaintiff is dismissed.
71. In my opinion present case is appropriate case to impose cost on the plaintiffs because it is established on record that they have no legal right of passage and 20 years have been passed. At the fag end of the trial attempt was made to further delay the decision by filing Misc. applications on 29.08.2017. Therefore, I imposed cost of Rs.5000/- on each of the plaintiffs to be paid to DDA and Indian Oil Corporation in equal proportion.
72. Decree sheet be prepared accordingly.
73. File be consigned to Record Room.
Announced in the open court today the 1st September, 2017.
(Sanjay Kumar) ADJ-02,West/Delhi 01.09.2017 CS No. 34/17/98 (New No.8872/16) R.S. Gautam vs. DDA & Anr. 41/41