Delhi District Court
Mukesh Nagar & Anothers vs Delhi Development Authority on 15 April, 2013
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IN THE COURT OF SH. JAGDISH KUMAR
JSCC/ASCJ/GUARDIAN JUDGE (East), KKD COURTS: DELHI
Suit No. 505/10
In the matter of:
Mukesh Nagar & Anothers .....Plaintiffs
Versus
Delhi Development Authority .....Defendant
ORDER
1 This order shall dispose of the application of the plaintiff moved u/o 39 Rule 1 & 2 r/w Section 151 CPC. Vide present application plaintiffs are seeking an adinterim injunction order thereby restraining the defendant Delhi Development Authority and its officials from interfering in the peaceful possession of plaintiffs in their property falls in Khasra No. 583/196, situated in Revenue Estate of village Khichripur, Delhi., till the final disposal of the case. 2 The brief facts of the case are that the predecessorin Suit no. 505/10 Page 1 of 10 2 interest of the plaintiffs i.e. Late Shri Ramrikh and Late Shri Chatar Singh both sons of late Jaswant were the owners and in actual physical possession of land bearing khasra no. 583/196, measuring 5 Bigha 5 Biswa situated in Revenue Estate of village Khichripur, Delhi, having Bhumidhari rights over the same. The property in question has been shown in the name of Late Shri Ramrikh and Late Shri Chatar Singh in the Revenur Records i.e. Khatauni pertaining to the years 197172, 197778, 198485 and khasra Girdawari of years 198788. Shri Ramrikh died without leaving any successor behind him as such the share of late Shri Ramrikh, after his demise, devolved upon the father of plaintiffs Shri Chatar Singh. After the demise of Late Shri Chatar Singh, the father of plaintiffs, the property in question devolved upon the plaintiffs by way of inheritance being the Legal Heirs of Late Shri Chatar Singh. And as such from that day plaintiffs are in dejure and defacto possession of said property within their rights, title and interest. That due to notification of large check of land for the purposes of acquisition almost the agricultural activities came to an end but since it was an agricultural land. The predecessors of plaintiffs, in the year 1986, keeping in view the land use constructed wall by fencing the same with wires and planted Suit no. 505/10 Page 2 of 10 3 large number of trees in the entire plot which is an activity relating to agriculture. That due to mistake of Patwari aforesaid Khasra No 583/196 measuring 5 Bigha 5 Biswa was wrongly shown to has vested in the Gram Sabha vide order dated 29.01.1988. In December, 2008 it came into the knowledge of plaintiffs that the name of predecessors of plaintiffs has wrongly been deleted from the revenue record pertaining to Khasra No. 583/196 measuring 5 Bigha 5 Biswa. The same is wrongly shown to has vested in the Gram Sabha. The the plaintiffs moved an application under section 26 of the Delhi Land Revenue Act, 1954 seeking correction in Revenue Record. The Ld. SubDivision Magistrate, Preet Vihar vide its order dated 12.03.2010 directed the Tehsildar, Preet Vihar, Delhi and the concerned Patwari to correct the entry in Revenue Record of Khasra No. 583/196 and enter the name of plaintiffs against this Khasra Number, after the physical verification of land. Accordingly Patwari has carried out necessary corrections and has entered the name of plaintiffs in the Khasra Girdawari of years 20092010. That the plaintiffs being the lawful owner and in actual physical possession of land sold 100 sq. yard land of said Khasra no. 583/196 to Smt. Pushpa Devi, r/o A91/8, Kondli, Delhi and executed Sale Deed in her favour on 29.06.2010 for Suit no. 505/10 Page 3 of 10 4 consideration of Rs. 12,00,000/ duly registered in the Office of Sub RegistrarVIII, Delhi. That on 13.10.2010 when plaintiffs started construction of boundary wall of their land of Khasra No. 583/196 situated in village Khichripur, Delhi, the local staff of Delhi Development Authority including the Patwari and Junior Engineer arrived there and asked the plaintiffs to stop the construction of boundary wall claiming that the land has already been acquired by the Government and transferred to Delhi Development Authority. They further claimed that the plaintiffs have encroached upon government land and asked the plaintiffs to remove fencing and nursery from the land in question. That the plaintiffs told the officials of D.D.A. that the land in question has never been acquired by the government and also shown the order dated 12.03.2010 passed by the Sub Divisional Magistrate, Preet Vihar but they did not bother to all these and restrained the plaintiffs from raising any construction over the land. That plaintiffs on the very same day went to the police station to lodge the complaint but police out rightly declined to register any case against the officials of DDA. On these facts the plaintiffs sought the adinterim relief.
Suit no. 505/10 Page 4 of 10 5 3 The WS has been filed by the defendant in which it is stated that the suit of the plaintiff is not maintainable as the plaintiff is not in possession of the suit land. The suit land is an acquired land vide Award No. 28B/7071. The land vests with DDA u/s 22(i) of D.D.Act, vide Notification No. F(8)75 L&B dated 17.1.76. The suit of the plaintiff is not maintainable as the plaintiff has got no right, title or interest over the suit land. The plaintiff under the grab of the present suit is trying to encroach upon the government land, which falls in Khasra No. 196, measuring 19 bigha 7 biswa, acquired vide Award No. 28B/7071. And presently the land is under the Management and control of DDA, Horticulture Division VII. The plaintiff has not served the statutory Notice u/s 53B of D.D.Act upon the defendant prior to filing of the present suit. That the plaintiff is not in possession of any piece of land, which is lying vacant. The defendant prayed for dismissal of the application.
4 Replication to the written statement of the defendant filed by the plaintiff. In the replication, the plaintiff has denied the allegations of the defendant and reiterated and reaffirmed the statement made in the plaint.
Suit no. 505/10 Page 5 of 10 6 5 I have heard the Ld. Counsel for the parties and gave my thoughtful consideration to the submissions made by the parties and also perused the file.
6 It is well established law that in order to get relief of ad interim injunction, the plaintiffs have to show, firstly, that there exists a prima facie case in their favour; secondly that balance of convenience also lies in favour of the plaintiffs; and thirdly, that plaintiff's would suffer irreperable loss if adinterim injunction is not granted to them. 7 In the cases, Bikramjit Singh Vs. LIC etc. 1975 RLR 40 and Shri Baldev Raj Vs. DDA & Others, DLT 1971, Delhi 4, it was held that prima facie case means that with allegations in the plaint, the case needs consideration. It is not permissible to examine the legal question involved in the case in detail at preliminary stage. In a case, Agricultural Engineering Co. Vs. Birla Cotton Spinning Weaving Miles, 1971 RLR Note 36, it was held that interim injunction should be granted where fair and serious questions await trials. In a case Jagdish Chand Vs. Anadn Pradhan and others, 1971 RLR Notes pages 19, it was held that in injunction suits, ordinarily, interim Suit no. 505/10 Page 6 of 10 7 injunction should not refused as that would make suit infructuous. In a case of Fidelity Growth Fund (Pvt.) Ltd. and Anr. Vs. S. Paratap Singh & Ors. 61 (1996) DLT 346, it was held that plaintiffs were prima facie found in settled possession of property having right to occupy the same. The adinterim injunction was granted. In case titled "Premji Ratansay Shah & Ors. V/s. UOI & Ors., JT 1994 (6) SC 565", Hon'ble Apex Court has held that no injunction can be granted in favour of encroachment on public land and against the true owner. 8 The plaintiff stated that he is the owner of the suit property by law of inheritance and also relied upon the document, the khatuni for the year 19711972, Khatuni for the year 19771978, Khatuni for the year 19841985 as well as khasra girdhari for the year 19871988. On the other hand, ld. Counsel for the defendant relied upon the award bearing no. 28B/19701971 vide which the khasra no. 583/196 village Khichripur has been acquired.
9 I have perused the document the award bearing no. 28 B/19701971 by which the land of khasra no. 583/196 village Khichripur has been acquired by the Government of India. The Suit no. 505/10 Page 7 of 10 8 documents such as Khatuni relied upon by the plaintiff pertains to the year 19711972. The land has been acquired in the same year. After acquisition of the land, possession has been handed over to the defendant u/s 22 (1) of the DDA Act vide notification no. F (8) (75) L and B dated 17.01.1976. Since 1976, the land is stated to be in the possession of the DDA. The document relied upon by the plaintiff are not the documents of title as held by the Hon'ble Supreme Court of India in case title RVE Venkatachala Gounder Vs. Arupnigu Viswesara Swami and V P Temple and Ors. AIR 2003 SC 4548. It may be possible that the revenue record, by the Revenue Authority, has not been up dated with the consultation of the concerned authority who has acquired the land. The land has been shown in revenue record continuously in the name of Ram Rikh and Chattar Singh, both sons of Late Jaswant. Ld. Counsel for plaintiffs has also argued that SDM concerned has rectified the mistake done by the revenue officers, by showing the land of Khasra No. 583/196, measuring 5 bighas and 5 biswas in favour of the Government, by re entry vide order dated 12.03.2010 in favour of plaintiff. But it reveals that the SDM concerned has not issued any notice to the Central Government or the DDA to rectify the same.
Suit no. 505/10 Page 8 of 10 9 10 Even otherwise, certain photographs have been placed on record by the defendant which show that there are Safeda treed on the suit property and argument of ld. Counsel for the defendant had forced that the same is green belt adjacent to the National Highway
24. It is further argued by ld. Counsel for the defendant that plaintiffs have also tried to construct temporary room at the suit property for which an FIR dated 07.01.2011 was registered against the plaintiff. It is further submitted by ld. Counsel for the defendant that the possession of six bighas and seven biswas of land was taken over of khasra no. 580583/196. The possession of the remaining land could not be taken over due to heavily built up. Admittedly, the suit land is not constructed but is vacant land having safedas trees on it. And there is no vacant land of khasra no. 580583/196 of village Khichripur Delhi. It gives force to the arguments of Ld. Counsel for defendant that land pertains of the DDA. It is not in dispute that suit land does not falls in khasra no. 583/196. The plea of the plaintiffs is not sustainable that land belongs to them. Because the land stand acquired vide award no. 28B/19701971. So the case of the defendant is prima facie stronger than the case of the plaintiffs. So, I Suit no. 505/10 Page 9 of 10 10 am not inclined to grant injunction at that stage. As case of the plaintiffs does not fulfills the requirement for granting adinterim injunction. Application dismissed accordingly. 11 Nothing is stated herein tantamount on the expressions on the merits of the case as parties has yet to lead evidence and prove their case on merits.
(Announced in open Court (JAGDISH KUMAR)
on 15.04.2013) JSCC/ASCJ/GJ(East)
Karkardooma Courts
Delhi.
Suit no. 505/10 Page 10 of 10
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Suit no. 505/10
15.04.13
Present: Proxy counsel for plaintiff.
Proxy counsel for defendant.
Vide separate order the application of plaintiff U/O.39 R.1 & 2 CPC is dismissed.
Put up on 20.05.13 for framing of issues.
(Jagdish Kumar) JSCC/ASCJ/G. Judge (East) 15.04.2013 Suit no. 505/10 Page 11 of 10