Delhi District Court
Rca No.114/2014: "Vijay Kr. Sharma & ... vs Jagdishwar Dayal Gupta & Ors." Dod: ... on 16 September, 2014
RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014
IN THE COURT OF VINOD YADAV: ADDL. DISTRICT JUDGEI:
SOUTHWEST DISTRICT: DWARKA COURTS: NEW DELHI
Regular Civil Appeal No.114/2014
In the matter of:
1. Shri Vijay Kumar Sharma,
S/o Shri Umrai Singh Sharma,
R/o E55, Gali No.16, Sadh Nagar,
Palam Colony, New Delhi.
2. Shri Sultan Singh Negi,
S/o Shri Kirth Singh Negi,
R/o E54, Gali No.16, Sadh Nagar,
Palam Colony, New Delhi.
.....Appellants
(Through Shri P.K Bhardwaj, Advocate)
Versus
1. Shri Jagdishwar Dayal Gupta,
S/o Late Shri Ishwar Dayal,
R/o 68, New Rajdhani Enclave,
Vikas Marg, New Delhi92.
2. Municipal Corporation of Delhi,
Town Hall, Chandni Chowk, New Delhi06.
(Through its Commissioner)
3. The Executive Engineer (Works),
MCD, Najafgarh Zone, Delhi Gate,
Najafgarh, New Delhi45.
4. Delhi Development Authority,
Vikas Sadan, INA Market, New Delhi.
(Through its ViceChairman)
.....Respondents
(R1 Through Shri R.K Gupta, Advocate)
(R2 & R3 Nemo)
(R4 Through Shri Arvind Gupta, Advocate)
Date of Institution of Appeal : 22.05.2010
Date of transfer to this court : 31.01.2014
Date of reserving judgment : 03.09.2014
Date of pronouncement : 16.09.2014
RCA U/s 96 CPC: "RCA Dismissed" Page 1 of 22
RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014
APPEAL U/s 96 CPC AGAINST THE ORDER DATED 12.04.2010 PASSED IN CIVIL SUIT
No.22/09/05 BY SHRI VIKAS DHULL, Ld.ASCJ (S/W), DWARKA, NEW DELHI
16.09.2014
J U D G M E N T:
The appellants were defendants No.3 and 4 before the Ld.Trial Court in Civil Suit No.22/09/1995, filed by respondent No.1 against them as well as Municipal Corporation of Delhi and Delhi Development Authority. The said suit was decided by the Ld.Trial Court on 12.04.2010, by passing the following decree:
xxxxx
26. xxxxx In the light of my finding given on issue No.1, it is hereby declared that plaintiff is the owner of the suit plot measuring 150 sq.yards situated between plot No.E55 and E54, Sadh NagarII, Palam, New Delhi as shown in red in the site plan Ex.PW1/6, falling in Khasra No.94/10/1 and Khasra No.94/1 in the revenue estate of village Palam, New Delhi. Defendants are permanently restrained from disturbing the use and occupation of suit plot by the plaintiff and in making construction over the same. Plaintiff is allowed to construct on the suit plot, as shown in red in the plan Ex.PW1/6, subject to his getting building plan approved from the concerned civic authorities.
Defendants No.3 and 4 are directed to remove their gates, windows, ventilators and balconies of their houses situated on plot No.E55 and E54, Sadh NagarII, Palam, New Delhi respectively which are opening towards the suit plot, as shown in red in the site plan Ex.PW1/6 belonging to plaintiff. Decree Sheet be prepared accordingly. File be consigned to Record Room."
xxxxx RCA U/s 96 CPC: "RCA Dismissed" Page 2 of 22 RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014
2. In the present appeal, the aforesaid judgment/decree dated 12.04.2010 has been impugned (hereinafter referred to as the "impugned judgment"). It is relevant to note that against the impugned judgment, an appeal was also filed by respondents No.2 and 3, i.e MCD, being RCA No.70/2013, titled as, "Municipal Corporation of Delhi & Anr. V/s Shri Jagdishwar Dayal Gupta & Ors.". The said appeal was dismissed by this court vide judgment dated 24.10.2013. The respondents No.2 and 3 did not file second appeal against the judgment passed by this court and as such, the same attained finality qua respondents No.2 and 3 and precisely for this reason nobody came forward to advance final arguments in the present appeal on behalf of respondents No.2 and 3.
3. For the sake of convenience, the parties in this judgment henceforth are being referred to as per their respective status before the Ld. Trial Court.
4. Before setting out the grounds of challenge qua the impugned judgment, it would be appropriate to have brief scrutiny of the facts of the case, as borne out from the impugned judgment as well as the trial court record, which is as under:
The present suit was filed by the plaintiff for declaration, permanent injunction, mandatory injunction and recovery of damages wherein it was averred that plaintiff and his three brothers, namely, Sh.Maheshwar Dayal Gupta, Sh.Rameshwar Dayal Gupta and Sh.Sureshwar Dayal Gupta were owners of land measuring 1000 sq.yards out of khasra no. 9410/1 in the revenue estate of Palam, Delhi which is known as Sadh NagarII, Palam, Delhi vide decree of RCA U/s 96 CPC: "RCA Dismissed" Page 3 of 22 RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014 Declaration dated 06.02.1967 passed by the court of Sh.V.P.Bhatnagar, the then SubJudge, Ist Class, Delhi. It is further averred that four sisters of the plaintiff were also the owners of adjoining land measuring 500 sq.yards out of khasra no. 94/1 in the revenue estate of Palam, Delhi which is known as Sadh NagarII, Palam, New Delhi. It is further averred that the land measuring 500 sq.yards as above mentioned was given by Smt.Ram Kali, mother of plaintiff to her daughters. It is further averred that plaintiff was authorized by the brothers and sisters through a registered general power of attorney to do all the affairs of the aforesaid land on their behalf. It is further averred by the plaintiff that he has sold the land measuring 1260 sq.yards out of total land measuring 1500 sq.yards in different sizes of plots as follows:
(i) One plot measuring 200 sq.yards to Sh.Hoshiyar Singh which plot is also known as E60, Gali No.16, Sadh NagarII, Palam, New Delhi.
(ii) One plot measuring 160 sq.yards sold to Smt.Parbati Devi which plot is also known as E57, Gali No.16, Sadh NagarII, Palam, New Delhi.
(iii) One plot measuring 120 sq.yards having two sides gali sold to Sh.Sultan Singh Negi i.e. defendant no.4 which is now known as E54, Gali No.16, Sadh NagarII, Palam, New Delhi.
(iv) One plot measuring 160 sq.yards having two sides gali sold to Sh.Mamla Ram which is now known as E53, Gali No.16, Sadh NagarII, Palam, New Delhi.RCA U/s 96 CPC: "RCA Dismissed" Page 4 of 22
RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014
(v) One plot measuring 160 sq.yards having two sides gali sold to Smt.Shanti Devi which is now known as E52, Gali No.16, Sadh NagarII, Palam, New Delhi.
(vi) One plot measuring 160 sq.yards sold to Sh.Suresh Chand which is now known as E56, Gali No.16, Sadh NagarII, Palam, New Delhi.
(vii) One plot measuring 200 sq.yards sold to Smt.Prem Kumari which is now known as E59, Gali No.16, Sadh NagarII, Palam, New Delhi and one plot measuring 100 sq.yards having two sides gali sold to Sh.Suresh Chander which is now known as E55, Gali No.16, Sadh NagarII, Palam, New Delhi and which is now in possession of defendant no.3.
It is further averred by the plaintiff that he had given one plot measuring 90 sq.yards having two sides gali to his relative Sh.Ved Prakash Gupta which is now known as E58, Gali No.16, Sadh NagarII, Palam, New Delhi. It is further averred by the plaintiff that the plot measuring 150 sq.yards having two sides gali out of total joint land measuring 1500 sq.yards out of khasra no. 94/10/1 and 94/1 was left for himself for his own use and the said plot is disputed plot in question which is shown as red in the site plan attached with the suit and the same falls in between plots no.E54 and E55 and the same is known as E55A, Gali No.16, Sadh NagarII, Palam, New Delhi (hereinafter referred to as suit plot). It is further averred by the plaintiff that he is the absolute owner of the suit plot and same has never been acquired by the Government of India nor any compensation has been awarded for the said suit plot to the plaintiff or to anyone else till date.
RCA U/s 96 CPC: "RCA Dismissed" Page 5 of 22 RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014
2. It is further averred by the plaintiff that he could not construct the said disputed plot because of some financial crisis and suit plot was lying unconstructed having boundary walls on all its four sides. It is further averred by the plaintiff that till September, 1991, he was regularly visiting the suit plot but thereafter he was engaged in setting up of business and due to some family problem, he was unable to visit the suit plot from October, 1991 till August, 1994. In the month of August, 1994 when the plaintiff visited the suit plot, he was surprised to see that the boundary walls of the suit plot have been removed and a pucca road has been constructed on the suit plot by the defendants no.1 and 2. It is further averred that defendants no.3 and 4 have opened the main gates, balconies, windows and ventilators of their house towards the suit plot of the plaintiff illegally and unauthorisedly. It is also averred by the plaintiff that he has sent complaints to the defendant no.2 and to the SHO of PS Dabri on 26.08.1994, 19.09.1994 and 22.09.1994 respectively but no action has been taken till date. It is further averred by the plaintiff that since pucca road has been constructed on the suit plot illegally and unauthorizedly by defendants no.1 and 2 in collusion with defendants no.3 and 4, therefore, they are liable to pay damages @ Rs.500/ per month from defendants no.1,2 and 3 from 01.05.1995 till 30.06.1995. It is further averred by the plaintiff that he never sold the plot no.E55 having three sides gali and in fact plot owned and possessed by defendant no.3 which is now known as E55 was sold on 06.05.1988 having two sides gali. It is further averred that plot of defendant no.4 bearing no. E54, Gali No.16, Sadh NagarII, Palam, New Delhi was sold to defendant no. 4 on 02.06.1980 having two side gali. Therefore, the act of defendant no.4 in opening up his window, ventilation towards the side of suit plot is an illegal RCA U/s 96 CPC: "RCA Dismissed" Page 6 of 22 RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014 and unauthorized act for which he is liable to pay damages @ Rs.500/ per month w.e.f 01.05.1995 to 30.06.1995. It is further averred by the plaintiff that he had also issued a legal notice dated 08.02.1995 to all the defendants but despite service, defendants have failed to give any reply. Accordingly, a prayer was made in the suit that plaintiff be declared owner of the suit plot as shown in red in the site plan attached. Further a decree of permanent injunction be passed in favour of plaintiff and against the defendants thereby restraining the defendants from interfering or disturbing plaintiff in use and occupation of the suit plot or in making the construction on the suit plot. It was also prayed that decree of mandatory injunction be passed and defendants no.1 and 2 be directed to remove their all belongings alongwith pucca road from the suit plot and defendants no.3 and 4 be directed to remove their main gate, windows, ventilators and balconies towards the side of suit plot as shown in red in the site plan. It is also prayed that decree for recovery of damages of Rs.1,000/each be passed against the defendants no.1 and 2 and 3 and 4 respectively for wrongful use of the suit plot of the plaintiff.
3. In the written statement filed by the defendants no.1 and 2, it was submitted that the present suit is not maintainable for want of notice to the MCD u/s 477478 of the Delhi Municipal Corporation Act, 1957 (hereinafter referred to as DMC Act). It is further submitted that the suit is bad for nonjoinder of necessary party i.e. DDA. It is further submitted that the land in question is part of the road which is in existence since long and the same was constructed by the DDA and MCD is only maintaining the road and lanes. It is further submitted that road in question is a part of regularized plan and is not shown as plot in the RCA U/s 96 CPC: "RCA Dismissed" Page 7 of 22 RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014 layout plan. Accordingly, a prayer was made to dismiss the suit.
4. In the rejoinder filed by the plaintiff to the WS of defendants no.1 and 2, it was submitted that necessary legal notice has been sent to the MCD on 08.02.1995. It was further submitted that DDA had no right to handover the suit plot of the plaintiff to the MCD until the same has been acquired by the DDA.
Remaining averments of the written statement of defendants no.1 and 2 were denied and those stated in the plaint were reaffirmed.
5. In the written statement filed by defendants no.3 and 4, it was submitted that defendant no.4 had purchased the plot E54, Sadh Nagar II, Palam, New Delhi measuring 120 sq.yards from the plaintiff having three sides open and defendant no.3 had purchased the plot E55, Sadh Nagar II, Palam, New Delhi from one Sh.Saroop Singh with three sides open. It was denied that plaintiff is having any plot in between E54 and E55, Sadh Nagar II, Palam, New Delhi. It is further submitted that there is no plot in existence between the house of defendants no.3 and 4 in Sadh Nagar II, Palam, New Delhi. It was further submitted that only a 20 feet wide road is in existence between the house of defendants no.3 and 4 belonging to MCD. It was denied that defendants no.3 and 4 have constructed the road in question in collusion with defendants no.1 and 2. It was denied that defendants no.3 and 4 have constructed the main gate, window, ventilator and balcony towards the suit plot in question illegally and unauthorizedly. It was denied that the plot owned by defendant no.3 was sold on 06.05.1988 having gali on two sides only. Defendants no.3 and 4 denied that they are liable to pay damages @ Rs.500/p.m.to the plaintiff. It was denied that the plot sold by the RCA U/s 96 CPC: "RCA Dismissed" Page 8 of 22 RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014 plaintiff to defendant no.4 on 02.06.1980 was having gali on two sides only. It was further submitted that plot No.E54 of defendant no.4 was three sides open when the same was purchased from the plaintiff.
Accordingly, a prayer was made to dismiss the suit.
6. In the rejoinder filed by the plaintiff to the written statement of defendants no.3 and 4, it was denied that the plot E54 and E55, Sadh Nagar II, Palam, New Delhi was purchased by the defendants no.3 and 4 respectively having three sides open. It was denied that there is no plot in existence between E54 and E55, Sadh Nagar II, Palam, New Delhi. It was also denied that the suit plot is a government land i.e. running road of 20 feet wide possessed by MCD.
Remaining averments of the written statement of defendants no.3 and 4 were denied and those stated in the plaint were reaffirmed.
7. On 21.11.2000, Sh.Ramesh Chand, Executive Engineer of Najafgarh Zone (Building), MCD had given a statement in court that the Sadh Nagar II, Palam area falls under the jurisdiction of DDA.
Thereafter an application was filed by the plaintiff u/O 1 rule 10 CPC for impleading DDA as a party and the same was allowed by the ld.predecessor of this court on 17.04.2001 and DDA was made a party in this case.
8. In the written statement filed by DDA, it was submitted that DDA has not constructed any structure over the suit plot as this land was never acquired nor put at the disposal of the DDA and the same is a private property. It was further submitted by DDA that the area in dispute was denotified by the Delhi Administration on 09.03.1987 and all the building activities were vested with the MCD. Vide additional written statement filed by DDA, it was further clarified RCA U/s 96 CPC: "RCA Dismissed" Page 9 of 22 RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014 that khasra no. 94/10/1 and khasra no. 94/1 in the revenue estate of Palam, New Delhi also known as Sadh Nagar II, Palam, New Delhi were never acquired. Accordingly, a prayer was made to dismiss the suit.
9. From the pleadings of the parties, the following issues were framed by the Ld.Trial Court on 17.08.2004:
(i) Whether the plaintiff is the absolute owner of the plot no.E55A, Gali No.16, Sadh Nagar II, Palam, Delhi? OPP.
(ii) Whether the plaintiff was dispossessed by the defendants from the plot no.E55A, Gali No.16, Sadh Nagar II, Palam, Delhi? OPP.
(iii) Whether the plaintiff is entitled to damages @Rs.500/per month w.e.f.01.05.1995 to 30.06.1995 and for the period from 30.06.1995 onward from the defendants no.1,2,3 and 4? OPP (modified vide order dated 24.03.2005).
(iv) Whether the suit is not maintainable for want of notice u/s 477/478 of the DMC Act? OPD.
(v) Whether the plaintiff has no cause of action against the defendants? OPD.
(vi) Whether the plaintiff has no locus standi to institute the instant suit? OPD.
(vii) Whether the suit bad for misjoinder and non joinder of necessary parties? OPD.
RCA U/s 96 CPC: "RCA Dismissed" Page 10 of 22 RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014
(viii) Whether the suit is not maintainable against the defendant no.5 for nonservice of notice u/s 53(b) of the DDA Act? OPD.
(ix) Whether the plaintiff is entitled to any relief, if so, what relief?
10. Plaintiff examined himself as PW1 in support of his case. No other witness was examined by the plaintiff and accordingly, plaintiff's evidence was closed. Defendants No.3 and 4 examined themselves as DW1 and DW4 respectively. Two more witnesses i.e, DW2 Ram Saran and DW3 Sh.Inderjeet Singh were also examined by them. Defendant no.5/DDA has examined one witness i.e. DW5 Sh.Kanwar Deepak Chauhan. Defendants no.1 and 2/MCD examined DW6 Sh.Jagpal Singh, Executive Engineer, Najafgarh Zone, Delhi and Sh.Pawan Kumar, Senior Draftsman, Town Planning Department, MCD as DW7.
5. The Ld. Trial Court after considering the entire evidence led in the matter was pleased to decide all the issues in favour of plaintiff and against the defendants, except issues No.(ii) & (iii). The reasoning given by the Ld. Trial Court in decreeing the suit vide impugned judgment in favour of plaintiff is that the defendants, particularly defendants No.3 & 4 never disputed the ownership of the plaintiff in respect of the entire land, a part whereof was the suit plot. The Ld. Trial Court after considering the documents of his ownership filed by defendant No. 4 came to the conclusion that the plot which was sold to him i.e, plot bearing No. E54, was a two sided open plot. The Ld.Trial Court further came to the conclusion in respect of the plot of defendant No.3 i.e, plot bearing No.E55, again to be a two side open plot as defendant No.3 had concealed the relevant documents, i.e, RCA U/s 96 CPC: "RCA Dismissed" Page 11 of 22 RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014 documents dated 06.05.1988, purportedly executed by the plaintiff in favour of Shri Suresh Chandra, the predecessorininterest of defendant No.3. The Ld. Trial Court further came to the conclusion through elaborate reasoned findings that defendants No.1 & 2/MCD as well as defendant No.5/DDA had no right, title or interest in the suit plot, as the same was never acquired by the Government as per policy Ex. DW7/H and as such nobody was entitled to construct a road over the same and the same continued to vest with the plaintiff. The Ld.Trial court, however, did not allow the mesne profits/damages to the plaintiff as it found that there was not sufficient evidence as to who had broken the boundary wall on the northern and southern side of the suit plot and had constructed road thereupon.
6. The impugned judgment has been challenged before this court by defendants No.3 and 4 on the following grounds:
(a) That the Ld.Trial Court failed to appreciate that public utility services like sewerage water lines, telephone cables etc., are passing beneath the suit plot and as such, the decree against the defendants in the matter should not have been passed by the Ld.Trial Court;
(b) That the Ld.Trial Court failed to consider that the construction at the properties of defendants No.3 and 4 were fairly old and as such, there is a right of prescription in favour of the said defendants and their doors and windows opening towards the suit plot cannot be ordered to be closed;
(c) That the Ld.Trial Court failed to appreciate that the directions mentioned by the plaintiff in site plan Ex.PW1/6 do not match with the ones which appear in the documents of title executed by plaintiff in favour of defendants No.3 & 4 and;RCA U/s 96 CPC: "RCA Dismissed" Page 12 of 22
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(d) That the Ld.Trial Court further failed to appreciate that the plaintiff had colonized the entire area and as per the provisions of Section 312 of MCD Act, he had left the road for the convenience of defendants No.3 and 4 and other similarly placed vendees, but later on in this suit he claimed the same to be suit plot, whereas in fact, the same has been treated as a road all through.
7. I have heard arguments advanced at bar by Shri P.K Bhardwaj, learned counsel for defendants No.3 and 4 and Shri R.K Gupta, learned counsel for the plaintiff and gone through the entire material on record. With regard to the first ground mentioned herein above, a perusal of the trial court record reveals that defendants No.3 & 4 had not filed any document before the trial court showing the presence of public utility services infrastructure beneath the suit plot. No averment even in their written statement in this regard was made by defendants No.3 and 4. Before the trial court, the stand of aforesaid defendants was that suit plot was a government land, being part of running road of 20 feet, possessed by defendants No. 1 and 2; that they had finalized their construction work before the year 1991 and the plots when sold to them were three sided open. This gives an indication that as on the date of filing of suit, the public utility services infrastructure was not laid beneath the suit plot. It is also a matter of record that the Ld.Trial Court had not granted adinterim injunction in favour of plaintiff in the matter and there is every possibility that defendants No.1, 2 and 5 might have allowed the said public utility services infrastructure to be laid beneath the suit land during the pendency of this litigation. The defendants No.3 and 4 had moved an application U/o 41 Rule 27 CPC before this court, which was dismissed by this court on 07.03.2012, interalia holding as under:
RCA U/s 96 CPC: "RCA Dismissed" Page 13 of 22
RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014 xxxxx
7. It is not the case of the appellants that they were not aware of the facts at the time of trial. It appears that the appellants are only trying to fill the gaps in evidence by way of additional evidence. The trial of the present suit run for years and I do not find any reason what prevented the appellants to bring the alleged facts in their evidence before the Trial court.
Even otherwise, this court has no concern with the present status of the suit property and is concerned only about the status of the suit property as on the date of filing of the suit. In the abovesaid facts and circumstances, application filed U/o 41 Rule 27 of CPC filed by the appellants deserve no merits and same is dismissed.
xxxxx Therefore, this argument of learned counsel for defendants No.3 and 4 carries no weight in the eyes of law that the Ld.Trial Court did not appreciate the presence of public utility services infrastructure passing beneath the suit plot. In any case, the defendants were required to establish on record before the trial court about the status of suit plot to be government land.
8. As regards the next argument, the stand of defendants No.3 and 4 before the Ld.Trial Court was that they had finalized construction at their houses before the year 1991, whereas their witnesses namely DW2 Shri Ram Saran and DW3 Shri Inderjit stated that the construction at the plots of aforesaid defendants was complete even prior to the year 1980. The ground in question appears to have been taken by these appealing defendants in the matter to show that the suit filed by the plaintiff as on 30.08.1995 was barred by limitation. Admittedly, before the trial RCA U/s 96 CPC: "RCA Dismissed" Page 14 of 22 RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014 court, the issue of limitation was neither framed nor pressed by the said defendants and they cannot be heard to agitate it before this court at this stage. The important point which falls for the consideration of this court is not the time when the construction of the houses of these defendants was completed, but as to whether at the suit plot road was constructed by defendants No.1, 2 and 5, treating it as a government land and the plaintiff does not have any right, title or interest thereupon. Perusal of evidence reveals that the defendant No.3 Shri Vijay Kumar Sharma and defendant No.4 Shri Sultan Singh Negi, both donned the witness box as DW1 and DW4 respectively before the Ld.Trial Court and both deposed in their examination inchief that the suit plot was in fact a road under the possession of defendants No.1 and 2 and is being maintained since its very beginning and the same is built over the government land. Both DW1 and DW4 have not given any specific date regarding the coming into existence of road over the suit plot. The said defendants in order to prove that the road was in existence and the same belongs to defendants No.1 & 2 had examined DW2 Shri Ram Saran and DW3 Shri Inderjit Singh. DW2 Shri Ram Saran deposed in his crossexamination that the road was constructed prior to the year 1970 by BJP Government and not by MCD, whereas DW3 Shri Inderjit Singh deposed in his crossexamination that the road was in existence since 1978, whereas DW6 Shri Jagpal Singh, Executive Engineer of MCD deposed that the road in question was constructed by DDA, i.e defendant No.5 and the same was handed over to MCD for maintenance as a part of regularized layout plan. From the cumulative reading of the evidence of aforesaid witnesses, it is apparent that the road in question was not built by defendants No.1 and 2 (MCD), as claimed by defendants No.3 and 4 and the same is being only maintained by defendants No.1 and 2. The stand of defendants No.1 & 2 on the one hand and defendant No.5 on RCA U/s 96 CPC: "RCA Dismissed" Page 15 of 22 RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014 another hand is clearly contradictory. Both these defendants are civic authorities in Delhi. There is no document on record whereby the suit land was ever acquired by the Government, the same having been developed as a road by defendant No.5 and then handed over to defendants No.1 and 2 for maintenance. Now, let us analyze the evidence of the witnesses of defendant No.5, i.e DDA. DW5 Shri Kanwar Deepak Chauhan deposed in court that defendant No.5 DDA had not constructed any structure over the suit land, the land in question was neither acquired nor placed at the disposal of defendant No.5 DDA and the said land vests with the land owner. He further categorically deposed on oath that the area where the suit land exists, i.e Sadh Nagar, PartII, Palam, New Delhi was denotified and was handed over to MCD on 09.03.1987. Therefore, it is proved on record that defendant No.5 DDA had neither acquired the suit plot nor built any road thereupon and the same belongs to the owner, i.e plaintiff. One thing is further apparent from the testimony of DW5 that the road at the suit plot could not have come into existence prior to 09.03.1987. The Ld.Trial Court is right in its conclusion that whatever land was there at the disposal of defendant No.5 DDA prior to 09.03.1987, the same was transferred to defendants No.1 & 2 MCD. Therefore, since defendant No.5 DDA had not acquired the suit land, therefore, there was no question of same being handed over to defendants No.1 & 2 MCD or the same being treated as a government land. Therefore, both the appealing defendants had deposed falsely before the trial court with regard to coming into effect of the road at the suit plot. Here, the Ld.Trial Court further correctly appreciated the evidence of DW7 Shri Pawan Kumar from the Town Planning Department, particularly the resolution of the Standing Committee of defendant No.1 MCD, dated 05.06.1980, which has been placed on trial court record as Ex.DW7/H, which contemplates that the sites earmarked RCA U/s 96 CPC: "RCA Dismissed" Page 16 of 22 RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014 therein for parks, schools, open space and other community facilities would be immediately acquired through Secretary, Delhi Administration. Para No.5 of the same provides for allotment of an alternative plot on reasonable basis to the persons whose plots are covered in the public utility area. Even if it is presumed that the government had acquired the suit plot, there is nothing on record that either the compensation in lieu thereof was paid to the plaintiff or any alternative plot was allotted to him, as none of the civic authorities have pleaded any such acquisition.
9. The next argument of learned counsel for defendants No.3 and 4 questions the authenticity of site plan Ex.PW1/6 visavis the sides being projected in the title documents of both these defendants. In this regard, firstly the issue of directions was not raised before the trial court and for the first time a question was put to the plaintiff in crossexamination on 20.10.2008 with regard to such directions. The same is reproduced as under:
xxxxx Statement of PW1 Jagdishwar Dayal Gupta S/o Late Shri Ishwar Dayal.
On S.A XXX By Shri Rajesh Kumar Sharma, Ld. Counsel for defendants No.3 & 4.
xxxxx ..........It is correct that I had sold the plot to Shri Sultan Singh Negi, defendant No.4. It is correct that the document which is Ex.D4/1, deed of agreement, got executed by me in favour of defendant No.4, which bears my signature at point A & B. The direction in regard of "south" has been wrongly mentioned as land RCA U/s 96 CPC: "RCA Dismissed" Page 17 of 22 RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014 of other instead of a road in the Ex.D4/1. Vol. Actually the word "south" has been wrongly mentioned in the said document for the "west" direction. It is wrong to suggest that the site plan filed by me is incorrect. It is wrong to suggest that there is no such plot bearing No.E55A in the entire Sadh Nagar, Palam Colony. Vol. This number has been given to the plot in question by me only and not by the concerned Government Authority. I do not remember that whom I had sold the plot No.E55, Sadh Nagar.
xxxxx
10. At the first sight, there appears to be some force in the argument of learned counsel for defendants No.3 & 4. Let us analyze the title documents of both the defendants one by one. The title documents of defendant No.4 are Ex.DW4/1 to Ex.DW4/5 and the directions mentioned in the said documents are as under:
(a) East : Road 16 feet
(b) West : Gali 8 feet
(c) North : Plots sold to Shri Mamla Ram
(d) South : Remaining land of the owner
The conclusion which can immediately be drawn by seeing these directions is that the plot sold to defendant No.4 was two side open and at least on one of its sides, the remaining land of plaintiff was there. If these sides are considered in juxtaposition with Ex.PW1/6, then it would be immediately apparent that the sides mentioned in the title documents do not coincide with the ones shown in Ex.PW1/B. RCA U/s 96 CPC: "RCA Dismissed" Page 18 of 22 RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014
11. Similarly, the title documents of defendant No.3 which are Ex.DW1/B shows the following directions:
(a) East : Road 20 feet wide
(b) West : Gali 10 feet wide
(c) North : Road 20 feet wide
(d) South : Other's plot
At the first sight itself, this shows the plot to be three side open. If the directions mentioned in the aforesaid documents are considered in juxtaposition with the one shown in Ex.PW1/6, again we come to the same conclusion that the sides do not match. Although, the issue of sides was not argued before the Ld.Trial Court, however, with a view to finally settle this controversy, I have considered the aforesaid documents in detail. The defendants No.3 & 4 have themselves filed a site plan before this court to clarify the position, wherein directions at the spot have been mentioned as under:
West South North East Whereas, in Ex.PW1/6, which is admittedly prepared by plaintiff himself, the directions have been shown as under:
North West East South RCA U/s 96 CPC: "RCA Dismissed" Page 19 of 22 RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014
12. If the title documents of the aforesaid defendants are considered as per the directions given by them in their site plan, then the sides duly match and in the southern side the suit land is duly reflected. The Ld.Trial Court after an elaborate discussion, as appearing in paras No.14 to 16 on issue No.(i) has rightly concluded that the land sold to both the aforesaid defendants by plaintiff was two side open and on the southern side, the suit land was kept by the plaintiff for himself. In the aforesaid paragraphs, the Ld.Trial Court has rightly elaborated upon the conduct of defendant No.3 in not producing the chain of documents of previous ownership leading upto him, before the court and having deposed falsely before the court about the same. Therefore, even this argument of the learned counsel for the defendants carries no weight in the eyes of law.
13. I do not find any substance in the next argument of learned counsel for the defendants that the plaintiff himself had left the suit land as a passage as per Section 312 of the MCD Act. Firstly, this argument is contradictory to the documents of title Ex.DW4/1 to Ex.DW4/5, executed in favour of defendant No.4 by the plaintiff as well as the documents executed in respect of the plot of defendant No.3 in favour of his predecessorininterest namely Shri Suresh Chand and secondly the stand of defendants No.1 & 2 MCD is very clear, as is apparent from the affidavit dated 04.10.2000 of Shri Ramesh Chand, Executive Engineer, MCD, Najafgarh Zone, filed before the trial court, wherein it was stated:
xxxxx "The suit property cited above does not fall within the jurisdiction of MCD for the purpose of maintenance of building regulations under DMC Act."
xxxxx RCA U/s 96 CPC: "RCA Dismissed" Page 20 of 22 RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014 Once the MCD itself stated that the provisions of DMC Act were not applicable to the suit plot, then there was no question of plaintiff leaving the suit plot as a gali or road for the benefit of his vendees.
14. The learned counsel for the aforesaid defendants in order to buttress his argument further took me through a letter dated 29.05.1980, written by Commissioner MCD to Municipal Secretary, MCD and emphasized that the regularization plan of Palam group of colonies was in consideration before MCD even in the year 1980. According to me, the said document only shows that some consideration was going on in the office of defendant No.1 with regard to the regularization of unauthorized colonies which had come up in Palam village and from this letter it cannot be presumed that the suit land had been handed over to MCD for maintenance. The learned counsel next took me to copy of notification of Delhi Gazette dated 21.05.1971, showing that from Palam ward one Shri Jagdish was elected as councillor. This document was referred to by the learned counsel to show that the area in question where the suit land stands was part of Municipal Corporation of Delhi and as such, was being maintained even in the year 1971 as a municipal land. This argument again cannot be accepted in the eyes of admitted facts which have come on record through the evidence of defendants itself, which have been elaborately discussed in the preceding paragraphs.
15. No other ground was agitated before this court.
16. Accordingly, the appeal being meritless stands dismissed, leaving the parties to bear their own costs.
RCA U/s 96 CPC: "RCA Dismissed" Page 21 of 22 RCA No.114/2014: "Vijay Kr. Sharma & Ors. V/s Jagdishwar Dayal Gupta & Ors." DOD: 16.09.2014
17. The trial court record be sent back forthwith to the Ld.Trial Court/Ld.Successor Court alongwith copy of this judgment.
18. Appeal file be consigned to Record Room.
Dictated & Announced in the (Vinod Yadav)
open Court on 16.09.2014 Addl. District JudgeI/SouthWest
Dwarka District Courts: New Delhi
RCA U/s 96 CPC: "RCA Dismissed" Page 22 of 22