Delhi District Court
Bharat Bhushan vs D. D. A on 23 September, 2024
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IN THE COURT OF MS. DISHA SINGH, CIVIL JUDGE-02
WEST DISTRICT, TIS HAZARI COURTS, DELHI
SUIT NO.612569/2016
CNR NO. DLWT03-000218-2006
IN THE MATTER BETWEEN: -
1). Sh. Bharat Bhushan
2). Sh. Rajeev Kumar
Both sons of Sh. Barkat Ram
3). Smt. Jayanti Mala
W/o Sh. Barkat Ram
All R/o H.No.207,
Nirankari Colony, Delhi-110009.
..........................PLAINTIFF
VERSUS
1). Delhi Development Authority
through its Vice Chairman,
Vikas Sadan, INA, New Delhi.
2). Sh. Manohar Lal Gulati
S/o Late Sh. Basant Lal Gulati
R/o 342, Dr. Mukherjee Nagar,
New Delhi.
Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-1/42
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3). Municipal Corporation of Delhi
Through its Commissioner.
.....................DEFENDANT
Suit filed on :- 05.09.2006
Judgment Reserved on :- 20.09.2024
Date of decision :- 23.09.2024
SUIT FOR PERMANENT INJUNCTION
JUDGMENT
By this judgment, this Court shall adjudicate the suit filed by plaintiffs against the defendant seeking decree of permanent injunction. Before adjudicating upon the issues framed in the present suit, it is vital to first state the pleadings in the present suit concisely, which are as follows:
Pleadings of the Plaintiff: -
1. The plaintiff has filed the present suit seeking decree of permanent injunction in favour of the plaintiffs and against the defendant thereby restraining them, their employees, servants and other persons etc. from forcibly dispossessing the plaintiffs from any portion of the land comprised in Khasra no.575/525/106 [new] and 525/417/1 [old] situated in the revenue estate of Village Dhirpur, Delhi and further Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-2/42 -3- restraining them from carrying out any demolition of the super structure existing on the land.
2. It has been averred in the plaint that late Sh. Barkat Ram S/o Sh. Har Singh Dass was the non-occupancy tenant of land measuring 1 bigha 03 biswas comprised in khasra no.525/417/1 (old), 575/525/106 [new] situated in the revenue estate of Village Dhirpur, Delhi and till the time Sh. Barkat Ram was alive he remained in actual and physical possession of this land and after his demise in the year 1998, the plaintiffs stepped into his shoes and started using his land for the purposes of ' Gher/gitwar'. That a mutation was sanctioned in favour of plaintiffs on 16.12.2003. It has been further averred that the plaintiffs are and had been in actual physical possession of these lands and had been enjoying the same.
3. It has been further averred that the land comprised in Khasra no. 575/525/106 (1-03) had never been acquired under any provisions of law nor any compensation has been assessed of the same and as such the land is recorded till date as belonging to plaintiffs. That neither DDA nor any other authority/body including the Union of India had any right, title or interest of any nature in the land, subject matter of the suit.
4. It has been further averred that to the knowledge of the Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-3/42 -4- plaintiffs, the land comprised in Khasra no.575/525/106 was never notified for acquisition and no notification U/s 4 of the Land Acquisition Act, no declaration under Section 6 of Land Acquisition Act were issued. It has been further averred that the land of khasra no.575/525/106 (1-03) situated in Village Dhirpur, Delhi is abutting on the main road and the same has never been acquired under any provisions of law nor the same had been placed at the disposal of the defendant.
5. It has been further averred that there was a dispute in regard to the lands of khasra no.575/525/106 measuring 1- 03 in Village Dhirpur, Delhi and a litigation started between the plaintiff and one Sh. Manohar Lal and a suit was filed in the Civil Court, Delhi and the same was assigned to the Court of Sh. Balwant Rai, the then Ld. CJ, Delhi. That during the course of the proceedings the then Ld. CJ had directed Tehsildar (Model Town) to submit the status report of this khasra number 575/525/106 and in said status report, the khasra number has been shown in the cultivation of Sh. Barkat Ram and after his death, the said rights were mutated in the name of the present plaintiffs.
6. It has been further averred that on 04.09.2006, the officials of the defendant were found taking measurement in the area and they also approached the land of the plaintiffs.
Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-4/42 -5- Upon enquiry they disclosed that they have instructions to demolish the super structure existing on the spot. That plaintiff no.1 explained them that the land has neither been acquired nor it belongs to DDA/defendant and they have no right to interfere in the actual, physical possession of the plaintiffs and they have no right to demolish the super structure existing on the spot. The officials of DDA did not pay any heed and rather threatened the plaintiffs that they will come after two days with police force and shall take possession of the land by demolishing the super structure. Hence, bereft of any option, the plaintiffs have filed the present suit.
7. It has been further averred that no notice to show cause or any notice of demand had either been tendered or served upon the plaintiffs. That all the proceedings which the plaintiffs have come to know are being initiated in most high-handed manner and the same are against the principles of natural justice.
Pleadings of the Defendant: -
8. That, written statement was filed on behalf of defendant no.1/DDA denying the allegations as contained in the plaint wherein, inter alia, it has been submitted by defendant/DDA that plaintiff is not entitled to the relief of equity and plaintiff has no legal right in the suit land and Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-5/42 -6- has no locus standi to file the present suit. On merits, it has been submitted that the plaintiff is encroacher of the government land. It has been denied by the defendant/DDA that the suit land falls in khasra no.525/417/1 (old) and 575/525/106 (new). It has been further submitted that the suit land falls in khasra no.575/526/417/106 and khasra no.571/105/1 is situated in the revenue estate of village Dheerpur and same stands acquired vide award no.11/78-79 and that physical possession of the land was handed over to DDA on 11.10.1979 by the LAC/L&B, alongwith the WS, copy of the award, possession proceedings, aks shijra, tatima and other documents were also filed.
9. That, WS was also filed on behalf of defendant no. 2 Sh. Manohar Lal Gulati. In the WS, defendant no. 2 denied the case of the plaintiffs. However, defendant no. 2 never appeared after filing of the WS. As such, he has been proceeded with in absentia. That, defendant no. 3 i.e., MCD did not file any WS after impleadment and have been proceeded with absentia. It is further pertinent to mention that, no relief has been sought against them.
Replication: -
10.Replication was also filed on behalf of the plaintiff to the written statement of the defendant wherein the averments Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-6/42 -7- made in the written statement were denied and those made in the plaint were reiterated and reaffirmed.
Issues: -
11.From the pleadings of the parties, following issues were framed in the suit vide order dated 27.04.2007: -
(1) Whether the plaintiff is in possession of the suit premises as stated by the plaintiff? OPP (2) Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP (3) Whether the suit land falls in khasra no.525/417/1 (old), 575/525/106 (new) or khasra no.575/526/ 417/106 (1 bigha 3 biswa) and khasra no.571/ 105/1 (2 bigha) situated in revenue estate of village Dinpur? (onus on parties).
(4) Whether the suit is not maintainable for want of statutory notice U/s 53B of DD Act? OPD (5) Whether the plaintiff has no locus standi to file the present suit? OPD (6) Whether the plaintiff is seeking decree of declaration in the garb of permanent injunction and if so, effect thereof? OPD (5) Relief.
Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-7/42 -8- Plaintiff Evidence: -
12.In order to prove the case, plaintiff got examined only one witness i.e. himself as PW-1. PW-1 led his evidence by way of affidavit which is Ex.PW-1/A wherein he reiterated the averments made in the plaint. PW-1 also relied upon certain documents which are as under: -
Identification Description
Mark
Ex.PW-1/1 Jamabandi for the year 1998-99.
Ex.PW-1/2 Certified copy of jamabandi for the year
1985-86.
Ex.PW-1/3 Certified copy of khasra Girdwari of
khasra no.575/525/106.
Ex.PW-1/4 Certified copy of the status report filed by
(colly 3pages) Tehsildar, Model Town (in the Court of
Sh. Balwant Rai).
Mark-A Copy of status report/RTI reply from the
office of Land & Building.
Ex.PW-1/5 Aks Sizra.
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PW-1 was also cross-examined at length by Ld. SLO for DDA.
Thereafter, the plaintiff evidence was closed vide order dated 27.03.2017 and the matter was proceeded for defence evidence.
Defendant Evidence: -
13.In defence evidence, the defendant got examined two witnesses i.e. Sh. Karan Singh, then posted as Kanoongo, North Zone of Lands Management Department, DDA as DW-1 and Sh. Kunwar Singh, then posted as Kanoongo, North Zone of Land Management Department, DDA as DW-2.
a). DW-1 Sh. Karan Singh tendered his evidence by way of affidavit which is Ex.DW-1/A. DW-1 also relied upon certain documents which are as under: -
Identification Mark Description
Ex.DW-1/1 (colly) Certified copy of award bearing
no.11/78-79 (earlier Mark-A).
(objected to by Ld. counsel for
plaintiff as to mode of proof).
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Ex.DW-1/2 (OSR) Photocopy of possession proceedings
dated 11.10.1979.
Ex.DW-1/3 (OSR) Photocopy of notification dated
04.12.1979.
Mark-B Copy of akshijra (de-exhibited from
Ex.DW-1/4)
Ex.DW-1/4A (colly) Certified copy of tatima and akshijra.
Ex.DW-1/5 & DW- Copy of demarcation reports dated 1/6 (colly) 22.07.2011 and 25.09.2013 with plan (objected to by Ld. counsel for plaintiff on the ground that witness is neither the author of the demarcation report nor was a witness to the same).
DW-1 was also cross-examined by the counsel of plaintiff at length.
b). DW-2 Sh. Kunwar Singh tendered his evidence by way of affidavit which is Ex.DW-2/A. He further relied on the documents Ex.DW-1/1 to Ex.DW-1/6 already exhibited by DW-1.
DW-2 was also cross-examined by the counsel of plaintiff at length.
Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-10/42 -11- Thereafter, DE was closed on behalf of defendant vide order dated 23.02.2018. It is pertinent to mention that, no DE was advanced on behalf of other defendants and they have been proceeded in abstentia.
Decision with reasons: -
14.The final arguments have been extensively heard on behalf of both the parties at length and the entire record has been carefully perused. During the course of final arguments, the parties have placed reliance on their respective pleadings and evidence led on their behalf as stated herein above and not being repeated for the sake of brevity.
15.Now, let us deliberate upon the factual matrix and evidences in the matter at hand and issue-wise findings thereon. Let us first decide the most substantial issue involved in the present matter i.e., issue no. (3), thereafter rest of the issues will be decided.
16.Issue No. (3) -
(3) Whether the suit land falls in khasra no.525/417/1 (old), 575/525/106 (new) or khasra no.575/526/417/106 (1 bigha 3 biswa) and khasra no.571/105/1 (2 bigha) situated in revenue estate of village Dhirpur? (onus on parties).
The onus to prove this issue was upon the parties.
Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-11/42 -12- The present issue has arisen from the factual variance be- tween the pleadings and stands of both the sides. That, as per the case of the plaintiff, the suit land measuring 1 bigha 3 biswas is situated in Khasra no.575/525/106 [new] and 525/417/1 [old] situated in the revenue estate of Vil- lage Dhirpur, Delhi. Per contra, as per the case of the de- fendant/DDA, the 1 bigha 3 biswas of suit land comprises of Khasra No.575/526/417/106 and 2 bighas comprises in Khasra No.571/105/1 Village Dhirpur, Delhi and the same is claimed to have been acquired vide Award No.11/78-79, whereupon, possession thereof was also taken over by the Government and handed over to the defendant/DDA through the possession proceedings dated 11.10.1979 and the same has been placed at the disposal of the Defendant/DDA through a Notification No. F-11(45) / 76 / L&B on 04.12.1979, issued under Section 22(1) of the Delhi Development Act, 1957.
That, in order to prove this issue, plaintiffs got plaintiff no. 1 examined as PW-1. Plaintiff has tendered in evidence jamabandi of the year 1998-1999 as Ex. PW-1/1; certified copy of the jamabandi of the year 1985-1986 as Ex.PW- 1/2; certified copy of khasra girdawari of Khasra no. 575/252/106 as Ex. PW-1/3; certified copy of the status re- port filed by Tehsildar in another case titled Bharat Bhushan v. Manohar Lal Gulati as Ex. PW-1/4 and Aks Si-
Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-12/42 -13- jra as Ex.PW-1/5. That, a careful perusal of the documents transpires that, the name of Sh. Barkat Ram has been shown as a cultivator w.r.t land measuring 1 bigha 3 biswas in Khasra no. 575/525/106, while the name of the owner has been shown as Shakuntla Devi.
It is further pertinent to mention that, in the present matter since there is a dispute w.r.t location of the suit land, as such demarcation proceedings were conducted lastly on 05.11.2013, by the SDM, Model Town upon the directions of this Court. That, the said demarcation report has not been relied upon by the plaintiff for the reasons that, as per the outcome of the said demarcation report it has been stated that the suit land falls in Khasra No.575/526/417/2/106 which is reflected in revenue record as Kh. No.575/526/106 and that, in the TSM Plan filed and duly verified by the Tehsildar, the suit land is shown as comprising in Khasra No.526/417/2/106 (Kh. No.575/526/106) and not in Khasra no. 575/525/106 as claimed by the plaintiff. Further, the plaintiff side had de- nied service of notice of said demarcation upon them. It is further pertinent to mention that, the same has been relied upon by DDA and tendered in evidence as Ex. DW-1/6 (colly).
Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-13/42 -14- Further, DDA in order to prove their case got two wit- nesses examined and tendered in evidence certified copy of Award No. 11/78-79 as Ex. DW-1/1(colly) along with possession proceedings as Ex. DW-1/2 (OSR); copy of no- tification dated 04.12.1979 as Ex. DW-1/3(OSR); certified copy of tatima and ask shijra as Ex. DW-1/4A(colly) to the effect that the suit property in fact is situated in Khasra no. 575/526/417/2/106 and the same already stands acquired by the government and has been placed at the disposal of DDA. That, a careful perusal of the Award No. 11/78-79 of the village Dhirpur dated 01.06.1978 i.e., Ex. DW-1/1 at page 3 categorically mentions the name of the Smt. Shakuntla Devi for having claimed compensation for Khasra no. 575/526 and 571/105 without producing any documents in support of the claim. It is further pertinent to mention that, the plaintiffs are claiming their ownership from their predecessor-in-interest Smt. Shakuntla Devi, as also mentioned in Ex. PW-1/1 being jamabandi of the year 1998-1998, Ex. PW-1/2 being jamabandi of the year 1985- 1986 and Ex.PW1/3 i.e., khasra gidawri. That, DW-2 also relied upon the documents tendered in evidence by DW-1.
That, a conjoint reading of Award no. 11/78-79 i.e., Ex. DW-1/1 and Demarcation Report dated 25.09.2013 i.e., Ex. DW-1/6 transpire that, it has categorically come on record that, the plot in dispute falls in Khasra no.
Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-14/42 -15- 526/417/2/106. Further the 'Total Station Survey Drawing' states that, Khasra no. 525/417/1/106 has been mentioned as Khasra no. 573/525; Khasra no. 525/417/2/106 has been mentioned as Khasra no. 574/525/417/2; Khasra no. 526/417/2/106 has been mentioned as Khasra no. 575/526/106; Khasra no. 526/417/1/106 has been men- tioned as Khasra no. 576/126 and Khasra no. 105/1 has been mentioned as Khasra no. 571/105 as per jamabandi. Further, Ex.DW-1/5 i.e., demarcation report dated 22.07.2011 has not been relied upon since, the same was rejected by this Court vide order dated 14.02.2013.
At this stage it is further pertinent to mention that, the third demarcation was conducted upon the orders of this Court a report i.e., Ex. DW-1/6 was filed. It is pertinent to mention that, the plaintiffs have not filed any objections to the same. It is further pertinent to mention that, the plaintiff side have not placed any reliance upon the said demarca- tion report being against their case and merely gave sug- gestions to the DDA witnesses that, the plaintiff was not served with the notice to conduct demarcation, which was denied by the witnesses for want of knowledge. At this stage, it is further worthy to mention that, the demarcation was directed to be conducted by Tehsildar concerned and not DDA. It is further pertinent to mention that, plaintiff side did not cross-examine DDA witnesses nor applied for Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-15/42 -16- summoning of the Tehsildar for conducting his cross-ex- amination being a Court appointed official to do the minis- terial work under Order 26 Rule 9 and 10 of the Code of Civil Procedure, 1908 [hereinafter "CPC"], for the reasons best known to plaintiff. Thus, the plaintiff has in effect not controverted the demarcation report and award on merits or by leading any rebuttal evidence.
In this regard, Ld. Counsel for DDA had submitted that, the demarcation report and the plan need not to be proved separately and that, since the plaintiff has not made any ap- plication to cross-examine the local commissioner, there- fore, the said report has to be read against them. The Ld. Counsel for DDA has further placed reliance in the judge- ment passed by the Hon'ble High Court of Delhi in the case titled New Multan Timber Store Vs Rattan Chand Sood [68 (1997) DLT 680], wherein, it is held that:
"(10) Since we are concerned with the construction of Order 26 Rules 9 and 10 Civil Procedure Code it would be just and proper to examine them in extenso. The same are in the following words:-
"9.Commissions to make local investigations.-In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-16/42 -17- the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court;
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.
10.Procedure of Commissioner. - (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence together with his report in writing signed by him, to the Court.
Report and depositions to be evidence in suit - (2) The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the reports but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, on as to his report, or as to the manner in which he has made the investigations."
It is abundantly clear from the relevant provisions of law cited above that the report of the Commissioner under Order 26, Rule 10 Civil Procedure Code is a legal evidence. Hence it was Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-17/42 -18- not at all necessary for the Court to examine the Commissioner for the purposes of proving the said report. No formal proof is needed to prove the report when the Commissioner has been appointed under Order 26 Rule 9 CPC. As per the provisions of Order 26 Rule 10 Civil Procedure Code the report can be read in evidence without any formal proof of the same, though it is true that the Court suo motu or at the instance of any of the parties may summon the Local Commissioner and examine him as a witness. The appellants herein filed objections against the report of the Local Commissioner. However, for the best reasons known to them they did not choose to summon the Local Commissioner as a witness and reconciled themselves with the report as it was. Thus if the Commissioner was not summoned and examined as a witness and as such no opportunity was given to the appellant to cross examine the Local Commission they can blame none but themselves for the impasse which they find themselves in. Thus the statute has put a handle in the hands of any of the parties through enactment of the provisions of Rule 10 of Order 26 CPC. However, if they do not use the said handle they can blame none but themselves. Hence the appellants cannot be heard to say now that the report of the Local Commissioner cannot be acted upon since the Local Commissioner was not examined as a witness and they were not given any opportunity to cross examine him. A point very much akin to the point in hand arose before a Single Judge of the Andhra Pradesh High Court as, Vemusetti Appayyamma v. Lakshman Sahu. The learned Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-18/42 -19- Single Judge tackled the said problem by observing: "The learned counsel for the appellant however, objects to the Commissioner's report being accepted and acted upon without its being marked and without the Commissioner being examined. But under Order 26, R.9, Civil Procedure Code, for making a local inspection and to submit a report, the Commissioner is given the discretion to make a local inspection and record evidence if necessary and submit a report together with such evidence as he thinks fit. Under sub-rule (2) of Rule 10 of Order 26, Civil Procedure Code., the report of the Commissioner and the evidence taken by him form part of the record. When the Rule lays down that it forms part of the record irrespective of whether it is marked or not, the Court is bound to take that evidence into consideration. The failure to mark it as a document on behalf of the parties does not exclude it from the record. Sub-rule (2), however, lays down that either the Court or any of the parties may examine the Commissioner but if the Commissioner is not examined, the report submitted by him does not cease to form part of the record. It is nowhere laid down that unless the Commissioner is examined and through him his report is marked as an exhibit, the report of the Commissioner cannot be acted upon. That being so, the lower Appellate Court was right in considering the commissioner's report and in accepting the defendant's evidence and rejecting that of the plaintiff's witnesses in the light of that. The finding whether the plaintiff is in possession of the plaint schedule site or not is a finding of fact which is supported by the evidence Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-19/42 -20- on record and is binding on this Court in Second Appeal."
That, this Court finds merit in the arguments advanced by Ld. Counsel for DDA and the law cited, though the ques- tion involved here is w.r.t non-service of notice of demar- cation to the plaintiffs. However, it is pertinent to mention that, no such objection was raised by the plaintiff in this regard and rather, the DDA witnesses were cross-examined regarding the same. However, as already discussed above that, the demarcation was not conducted by DDA; rather, the same was done by Tehsildar and the plaintiffs could have proved the alleged fact of non-service of notice upon them by summoning the Local Commissioner i.e., the Tehsildar.
It is further noteworthy that, the general burden of proving the case lies upon the plaintiff in a civil proceeding. In the present matter, the copies of jamabandi and Khasra gir- dawri tendered by plaintiffs mentions the name of Sh. Barkat Ram i.e., the father of plaintiff no. 1 and 2, and hus- band of plaintiff no. 3 as a cultivator and not an owner. Further, plaintiff side has not placed on record any title documents or latest revenue record showing their name as the owner of the land. On the contrary, the defendant has successfully controverted the case of the plaintiff by prov- ing that the suit land in fact is situated in Khasra no.
Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-20/42 -21- 575/526/417/106 and has been mentioned as Khasra no. 574/525/417/2 in jamabandi. That, DDA has been further able to prove that, the land in disputed was in the name of Smt. Shakuntala Devi, the original owner of the land, and that, she had also claimed compensation upon its acquisi- tion by government vide Award no. 11/78-79.
That, the plaintiffs on the other hand, have not led any re- buttal evidence including transfer/title documents from original owner Smt. Shakuntla Devi in their favour. That, the plaintiffs have in fact not even filed the site plan of the suit land. Further, in the plaint, it has been stated that, the suit land is being used as gher/gitwar. However, during cross-examination, the PW-1 has admitted that, on site there is a multistoried building and a CNG Pump and that, a portion of the suit property was in fact also demolished by MCD being unauthorised construction. Further, the documents tendered in evidence by plaintiffs have not even been proved as per law by calling the concerned offi- cial witnesses.
As such, the plaintiffs have grossly failed in proving the onus cast upon them. While the defendant/DDA has proved the onus cast upon them on the scale of preponder- ance of probabilities that, the suit land is situated in Khasra no. 575/526/417/106, which has already been acquired by Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-21/42 -22- the Government vide Award No. 11/78-79 and has been placed at the disposal of DDA.
Hence, issue no. (3) is decided against the plaintiffs and in favour of the defendant/DDA
17.Issue No. (1) & (2) -
(1) Whether the plaintiff is in possession of the suit premises as stated by the plaintiff? OPP (2) Whether the plaintiff is entitled to decree of permanent injunction as prayed for? OPP That, both the issues are being dealt with together hereunder. That, the onus to prove these issues was upon the plaintiff.
That, the plaintiff instituted this suit seeking the relief of permanent injunction against the defendant thereby restraining the defendant/DDA, its employees, servants and other persons etc. from forcibly dispossessing the plaintiffs from any portion of the land comprised in Khasra no. 575/525/106 situated in revenue estate of Village Dhirpur, Delhi and further restraining them from carrying out any demolition of the super-structure existing on the land on the ground that, late Sh. Barkat Ram S/o Sh. Har Singh Dass was the non-occupancy tenant of land Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-22/42 -23- measuring 1 bigha 03 biswas comprised in khasra no.525/417/1 (old), 575/525/106 [new] situated in the revenue estate of Village Dhirpur, Delhi i.e., the suit land/property, and till the time Sh. Barkat Ram was alive he remained in actual and physical possession of this land and after his demise in the year 1998, the plaintiffs stepped into his shoes and started using his land for the purposes of gher/gitwar. That a mutation was sanctioned in favour of plaintiffs on 16.12.2003. It has been further averred that the plaintiffs are and had been in actual physical possession of these lands and had been enjoying the same.
That, the findings w.r.t. issue no. (3) as discussed herein above may be read as a part and parcel of the present is- sues as well. However, for the sake of convenience, it is pertinent to reiterate the crux of the same. That, in order to prove this issue, plaintiffs got plaintiff no. 1 examined as PW-1. That, the plaintiffs in support of their case tendered in evidence jamabandi of the year 1998-1999 as Ex. PW- 1/1; certified copy of the jamabandi of the year 1985-1986 as Ex.PW-1/2; certified copy of Khasra girdawari of Khasra no. 575/252/106 as Ex. PW-1/3; certified copy of the status report filed by Tehsildar in another case titled Bharat Bhushan v. Manohar Lal Gulati as Ex. PW-1/4 and aks shijra as Ex.PW-1/5. That, a careful perusal of the doc- uments transpires that, the name of Sh. Barkat Ram has Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-23/42 -24- been shown as a cultivator w.r.t land measuring 1 bigha 3 biswas in Khasra no. 575/525/106, while the name of the owner has been shown as Shakuntla Devi. It is further per- tinent to mention that, the plaintiff side have not placed on record any site plan, title documents qua the suit land in their favour from the original owner Smt. Shakuntla Devi to Sh. Barkat Ram, nor have they filed any documents showing their settled possession. On the contrary it has been admitted by PW-1 during his cross-examination that, they are living two gali away from the suit land. It has fur- ther been admitted that, they had raised a multistoried building over the suit land without the sanction of MCD due to which in fact a portion of suit property was demol- ished by MCD. It has further been admitted that, on re- maining portion of suit property there is a CNG Pump. However, plaintiffs did not place any documents as to the ownership of the same; while in the plaint it was averred that, the suit land is being used as a gher/gitwar.
It is further pertinent to mention that, in the present matter since there is a dispute w.r.t location of the suit land, as such demarcation proceedings were conducted lastly on 05.11.2013, by the SDM, Model Town upon the directions of this Court. That, the said demarcation report Ex. DW- 1/6 has not been relied upon by the plaintiff for the reasons that, as per the outcome of the said demarcation report it Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-24/42 -25- has been stated that the suit land falls in Khasra No.575/526/417/2/106 which is reflected in revenue record as Kh. No.575/526/106 and that, in the TSM Plan filed and duly verified by the Tehsildar, the suit land is shown as comprising in Khasra No.526/417/2/106 (Kh. No.575/526/106) and not in Khasra no. 575/525/106 as is being claimed by the plaintiffs. Further, the plaintiff side had denied service of notice of said demarcation upon them. It is further pertinent to mention that, the same has been relied upon by DDA and tendered in evidence as Ex. DW-1/6 (colly).
On the contrary, DDA has tendered in evidence certified copy of Award No. 11/78-79 as Ex. DW-1/1(colly) along with possession proceedings as Ex. DW-1/2 (OSR); copy of notification dated 04.12.1979 as Ex. DW-1/3(OSR); cer- tified copy of tatima and ask shijra as Ex. DW-1/4A(colly) to the effect that the suit property in fact is situated in Khasra no. 575/526/417/2/106 and the same already stands acquired by the government and has been placed at the dis- posal of DDA. That, a careful perusal of the Award No. 11/78-79 of the village Dhirpur dated 01.06.1978 i.e., Ex. DW-1/1 at page 3 categorically mentions the name of the Smt. Shakuntla Devi for having claimed compensation for Khasra no. 575/526 and 571/105 without producing any documents in support of the claim. It is further pertinent to Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-25/42 -26- mention that, the plaintiffs are claiming their ownership from their predecessor-in-interest Smt. Shakuntla Devi, as also mentioned in Ex. PW-1/1 being jamabandi of the year 1998-1998, Ex. PW-1/2 being jamabandi of the year 1985- 1986 and Ex.PW1/3 i.e., khasra gidawri.
That, a conjoint reading of Award no. 11/78-79 i.e., Ex. DW-1/1 and Demarcation Report dated 05.11.2013 i.e., Ex. DW-1/6 transpire that, it has categorically come on record that, the plot in dispute falls in Khasra no. 526/417/2/106. Further the 'Total Station Survey Drawing' states that, Khasra no. 525/417/1/106 has been mentioned as Khasra no. 573/525; Khasra no. 525/417/2/106 has been mentioned as Khasra no. 574/525/417/2; Khasra no. 526/417/2/106 has been mentioned as Khasra no. 575/526/106; Khasra no. 526/417/1/106 has been men- tioned as Khasra no. 576/126 and Khasra no. 105/1 has been mentioned as Khasra no. 571/105 as per jamabandi of Village Dhirpur.
Having said that, there is no iota of doubt that the defen- dant/DDA has successfully controverted the case of the plaintiff by proving that the suit land in fact is situated in Khasra no. 575/526/417/106 and has been mentioned as Khasra no. 574/525/417/2 in jamabandi and duly stands acquired. That, DDA has been further able to prove that, Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-26/42 -27- the land in disputed was in the name of Smt. Shakuntala Devi, the original owner of the land, and that, she had also claimed compensation upon its acquisition by government vide Award no. 11/78-79. As such the plaintiffs have nei- ther been able to prove their ownership over the suit land nor their settled possession.
Now coming to the aspect that, whether the plaintiffs are entitled to the equitable relief of injunction to the effect that, they be not forcibly dispossessed from the suit land and the construction thereon may not be demolished. That, in effect plaintiffs are trying to legalize their unauthorised claim over the disputed land, without having been able to prove their right/title/interest over the suit property. In this regard, it is further the settled principle of law that, entry of name in revenue records cannot be taken as the exclu- sive and conclusive proof of ownership. This Court is fur- ther of the opinion that, the defendant/DDA being owner of the suit property is entitled to take necessary actions to remove encroachment therefrom.
In this regard, thus Court is further fortified by the judg- ment passed by the Hon'ble High Court of Delhi in the case of Nathu Ram v. DDA [RSA No. 64/2020] as follows:
"23. As for the other contentions made by the parties and evidence presented, this Court Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-27/42 -28- observes first, that the Plaintiffs have heavily relied upon their and their family members' names reflecting in certain revenue records such as Khasra girdawaris to establish that they have been in ownership and possession of the suit property. However, it is the settled position in law that reflection of a party's name in the revenue records cannot confer title. This was most recently upheld in Prabhagiya Van Adhikari Awadh Van Prabhag V. Arun Kumar Bhardwaj (Dead) Thr. Lrs. [Civil Appeal No 7017 of 2009, decided on 5th October, 2021], where the Supreme Court held:
"26. This Court in a judgment reported as Prahlad Pradhan and Ors. v. Sonu Kumhar and Ors.
negated argument of ownership based upon entries in the revenue records. It was held that the revenue record does not confer title to the property nor do they have any presumptive value on the title. The Court held 7 (2019) 10 SCC 259 as under:
"5. The contention raised by the appellants is that since Mangal Kumhar was the recorded tenant in the suit property as per the Survey Settlement of 1964, the suit property was his self-acquired property. The said contention is legally misconceived since entries in the revenue records do not confer title to a property, nor do they have any presumptive value on the title. They only enable the person in whose favour mutation is recorded, to pay the land revenue in respect of the land in question. As a consequence, merely because Mangal Kumhar's name was recorded in the Survey Settlement of 1964 as a recorded tenant Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-28/42 -29- in the suit property, it would not make him the sole and exclusive owner of the suit property."
27. The six yearly khatauni for the fasli year 1395 to 1400 is to the effect that the land stands transferred according to the Forest Act as the reserved forest. Such revenue record is in respect of Khasra No. 1576. It is only in the revenue record for the period 1394 fasli to 1395 fasli, name of the lessees find mention but without any basis. The revenue record is not a document of title. Therefore, even if the name of the lessee finds mention in the revenue record but such entry without any supporting documents of creation of lease contemplated under the Forest Act is inconsequential and does not create any right, title or interest over 12 bighas of land claimed to be in possession of the lessee as a lessee of the Gaon Sabha."
24. In the present case also, similar to the decision in Prabhagiya Van Adhikai (supra), the manner in which the possession of Plaintiff/his family members is shown in some khasra girdawaris, that too as agriculturists and cultivators, for some sporadic periods but not continuously, does raise doubts as to whether they were in continuous possession or not. Therefore, the mere mention in some years of khasra girdawari showing possession, cannot by itself confer ownership and title in respect of such precious land.
25. In so far as the Trial Court's finding stating that DDA cannot dispossess the Plaintiffs without due Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-29/42 -30- process of law, is concerned, this is clearly an erroneous approach inasmuch as even if the Plaintiffs are stated to be in settled possession, it is not necessary for the DDA to file a suit to take possession from them. The DDA can, as a Defendant, establish before the Court that the Plaintiffs are in possession of a government land and the same can result in dismissal of the suit. Due process of law, as is settled in several judgments of the Supreme Court and this Court, does not always require initiation of action by the owner/ Government. Dismissal of a suit by a competent Court of law after affording proper opportunity to the parties, is also a recognized mode of following the due process of law. On this issue, the observations of the Supreme Court in Maria Margarida Sequeira Fernandes & Ors. v. Erasmo Jack De Sequeira (Dead) through LRs, (2012) 5 SCC 370, are as under:
"81. Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the Defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent Court.
82. The High Court of Delhi in a case Thomas Cook (India) Limited v. Hotel Imperial, 2006 (88) DRJ 545 : (AIR 2007) (NOC) 169) held as under:
Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-30/42 -31- "28. The expressions 'due process of law', 'due course of law' and 'recourse to law' have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed 'forcibly' by the true owner taking law in his own hands. All these expressions, however, mean the same thing - ejectment from settled possession can only be had by recourse to a court of law. Clearly, 'due process of law' or 'due course of law', here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.
Now, this 'due process' or 'due course' condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence."
[Emphasis Supplied] In light of the facts, evidence and law as discussed above, plaintiffs have not been able to prove their ownership, settled possession and location of the suit land as alleged Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-31/42 -32- by them in their plaint. As such, the plaintiffs have grossly failed in proving their own case. In this regard, it has been further held in the case of Nathu Ram (supra) that:
"30. This brings the Court to the question of the onus of the Plaintiffs of proving their ownership of the suit property. It is well-settled that in cases of government land, there is a greater responsibility of Courts in ascertaining title of third parties. In fact, the plaintiff in such cases must establish his clear right, title and nature of possession in the property, superior to that of the Government authority and there is a presumption in favour of the Government. In such cases, the Supreme Court has clearly observed that it is not sufficient to show possession or adverse possession merely by some stray revenue entries or records. This position was elaborated upon by the Supreme Court in R. Hanumaiah and Ors. v. Secretary to Government of Karnataka, Revenue Department and Ors., (2010) SCC 203:
"Nature of proof required in suits for declaration of title against the Government
15. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-32/42 -33- unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963 which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.
16. Many civil courts deal with suits for Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-33/42 -34- declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government: whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title.
Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-34/42 -35- Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession - authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title).
17. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient.
Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored. As noticed above, many a time it is Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-35/42 -36- possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may."
[Emphasis Supplied] That, in the present matter, though its not a suit for declaration of ownership. However, by virtue of the relief of permanent injunction without any supporting titled/transfer documents in favor of the plaintiffs or any other document showing actual settled possession of the plaintiffs for a continuous period of thirty years, the plaintiffs in effect are trying to legalize their claim in the garb of permanent injunction, which a gross abuse of process of law. The general burden of proving the case was upon the plaintiffs to the effect that, they have a right/title to the suit land; that, they are in the settled possession of the same and that, the suit land is situated in the Khasra numbers as alleged by the plaintiffs. That, the plaintiffs have merely placed on record jamabandi of the year 1998- Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-36/42 -37- 1999, which is neither a certified copy nor has been proved by summoning the record from the concerned authority, and certified copy of jamabandi of the year 1985-1986. Furthermore, there is neither any record of continuous possession of the suit land in the name of plaintiffs since the plaintiffs have not filed any further documents prior to post above-said periods nor any title documents nor have been able to prove that, the suit land is actually situated in Khasra no. 525/525/106 as alleged. Therefore, the plaintiffs have grossly failed in discharging their burden and are not entitled to the equitable relief of injunctions without any right/title/interest in the suit land.
Hence, issue no. (1) and (2) are decided against the plaintiffs and in favour of the defendant/DDA.
18.Issue No. (4), (5) & (6) -
(4) Whether the suit is not maintainable for want of statutory notice U/s 53B of DD Act? OPD (5) Whether the plaintiff has no locus standi to file the present suit? OPD (6) Whether the plaintiff is seeking decree of declaration in the garb of permanent injunction and if so, effect thereof? OPD Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-37/42 -38- All these issues are being dealt with together hereunder. The onus to prove these issues was upon the defendant/DDA.
With regard to issue no. (4), the defendant i.e., DDA has relied upon the provision under Section 53B of the Delhi Development Authority Act, 1957 [hereinafter "the DDA Act"] on the ground that, the suit of the plaintiff is not maintainable for want of statutory notice under Section 53B of the DDA Act; and therefore, should have served the mandatory notice under Section 53B of the DDA Act. Before adverting further, let us first discuss Section 53B of the DDA Act, which reads 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 directions 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 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 Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-38/42 -39- residence of the intending plaintiffs 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.]"
[Emphasis Supplied] In the present matter, the plaintiffs are seeking the decree of permanent injunction in their favour and against the defendant thereby restraining them, their employees, servants and other persons etc. from forcibly dispossessing the plaintiffs from any portion of the land comprised in Khasra no.575/525/106 [new] and 525/417/1 [old] situated in the revenue estate of Village Dhirpur, Delhi and further restraining them from carrying out any demolition of the super structure existing on the land. Though the case of the defendant is that, the 1 bigha 3 biswas of suit land comprises of Khasra No.575/526/417/106 and 2 bighas comprises in Khasra No.571/105/1 Village Dhirpur, Delhi Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-39/42 -40- and the same is claimed to have been acquired vide Award No.11/78-79, whereupon, possession thereof was also taken over by the Government and handed over to the defendant/DDA through the possession proceedings dated 11.10.1979 and the same has been placed at the disposal of the Defendant/DDA through a Notification No. F-11(45) / 76 / L&B on 04.12.1979, issued under Section 22(1) of the Delhi Development Act, 1957. That, the DDA has in fact been able to prove the same by virtue of Ex, DW-1/1, Ex. DW-1/2 (OSR), Ex. DW-1/3 (OSR), Ex. DW-1/4A and demarcation report dated 22.07.2011 as Ex. DW-1/5 and demarcation report dated 25.09.2013 as Ex. DW-1/6 (colly) While, on the contrary plaintiff has neither been able to prove their case nor controvert the evidence led on behalf of the defendant.
That, a meaningful reading of the relief sought by the plaintiff transpire that, the plaintiffs are seeking two reliefs of permanent injunction as stated above. Further, it is explicitly mentioned under Section 53B of the DDA Act, that, the mandate of Section 53B does not apply on the cases where the relief of injunction has been sought in the simplicitor for the same may defeat the ends of justice and urgency in the matters relating to injunctions. However, in the present matter, the plaintiffs have in effect sought the relief of declaration in the garb of permanent injunction, Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-40/42 -41- since, the plaintiffs have sought to regularize/legalize their claim qua the suit property in the garb of permanent injunction without placing on record any title documents. Hence, this Court is of the opinion that, the plaintiffs were required to serve any notice upon DDA in light of the provisions of sub-section (3) of Section 53B of the DDA Act.
Further, w.r.t issue no. 5, since, the defendant/DDA has been able to prove that, the suit land is a government acquired land placed at their disposal, and on the contrary plaintiffs have not been able to prove their right/title in the suit land or their case as already discussed herein above, and not being reiterated for the sake if brevity. Accordingly, this Court is of the opinion that, plaintiffs had no locus standi to institute the present suit and have approached this Court with unclean hands.
That, w.r.t issue no. 6, it the contention of DDA that in the garb of permanent injunction, the plaintiffs are seeking the relief of declaration of ownership. That, this Court after having regard to the totality of the evidences led on both the sides along with the conduct of both sides in light of their respective pleadings, finds merit in this argument advanced by the defendant/DDA so much so, that the plaintiffs without placing any title document on record Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-41/42 -42- have sought the relief of injunctions thereby protecting their possession and unauthorised construction over the suit land. Thus, the plaintiffs in effect have tried to legalize their claim over the suit property in the garb of permanent injunction and same amounts to seeking the relief of declaration of ownership and in fact seeking cancellation of Award No. 11/78-79.
Hence, issues no. (4), (5) and (6) are decided against the plaintiffs and in favour of the defendant/DDA.
19.Issue No. (7) -
(7) Relief - In view of the findings given on issues no.(1) to (6), documents placed on record, pleadings of the parties and evidence led by the parties, the plaintiff has failed to prove his burden on the scale of preponderance of probabilities. Accordingly, the suit of the plaintiff is hereby dismissed.
Let, decree sheet be prepared accordingly.
File be consigned to record room after completing the necessary formalities. DISHA Digitally signed by DISHA SINGH Date: 2024.09.23 SINGH 17:16:53 +0530 (This judgment contains 42 pages and each page (DISHA SINGH) has been signed by the undersigned) Civil Judge-02, West, Announced in the open Court Tis Hazari Courts, Delhi on 23.09.2024 Suit No.612569/2016 Bharat Bhushan & Ors. Vs. DDA & Ors. Page-42/42