Delhi District Court
Shyam Lal vs Sh. Gokul Chand on 31 October, 2023
IN THE COURT OF SH. MAYANK GOEL,
ACJ/CCJ/ARC(WEST), TIS HAZARI COURTS, DELHI
________________________________________________________
SHYAM LAL Vs. GOKUL CHAND & ORS.
CS SCJ 363/2014 8082/16
CNR No. DLWT03-000023-1995
Sh. Shyam Lal,
S/o Late Sh. Tara Chand
R/o H. No. 54, Basant Village/Nagar,
New Delhi-110057.
......Plaintiff
Vs.
1. Sh. Gokul Chand(since deceased now through his legal
heirs.)
Smt. Mohan
W/o Late Karan Singh
House No. 12, Basant Nagar,
New Delhi-110057.
2. Sh. Devanand
S/o Late Sh. Karan Singh
House No. 12, Basant Nagar,
New Delhi-110057.
3. Sh. Yog Raj
S/o Late Sh. Karan Singh
House No. 12, Basant Nagar,
New Delhi-110057.
4. Sh. Pramod Kumar
S/o Late Sh. Kishan Chand
House No. 12, Basant Nagar,
New Delhi-110057.
5. Sh. Vinod Kumar
S/o Late Sh. Kishan Chand
House No. 12, Basant Nagar,
New Delhi-110057.
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CNR No. DLWT03-000023-1995
6. Smt. Saraswati Devi
W/o Late Daya Chand
House No. 12, Basant Nagar,
New Delhi-110057.
7. Sh. Sushil
S/o Late Sh. Daya Chand
House No. 12, Basant Nagar,
New Delhi-110057.
8. Smt. Suman Sharma
W/o Late Sh. Bodh Raj
House No. 12, Basant Nagar,
New Delhi-110057.
9. Sh. Sumit Sharma
(Minor through mother defendant no. 6)
House No. 12, Basant Nagar,
New Delhi-110057.
10. Smt. Rekha
D/o Late Daya Chand
(through defendant no. 6)
House No. 12, Basant Nagar,
New Delhi-110057.
11. Smt. Kusum Sharma
D/o Late Daya Chand
(through defendant no. 6)
House No. 12, Basant Nagar,
New Delhi-110057.
12. Smt. Devi
W/o Late Sh. Hans Raj
House No. 12, Basant Nagar,
New Delhi-110057.
13. Sh. Amit
S/o Late Sh. Hans Raj
House No. 12, Basant Nagar,
New Delhi-110057.
14. Sh. Pradeep
S/o Late Sh. Hans Raj
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House No. 12, Basant Nagar,
New Delhi-110057.
15. Smt. Bimla
W/o Sh. Ram Karan
R/o Khevda, Distt. Sonipat,
Haryana
16. Smt. Bhatte
W/o Late Gopi
House No. 12, Basant Nagar,
New Delhi-110057.
17. Sh. Sunder Lal
S/o Late Gopi
House No. 12, Basant Nagar,
New Delhi-110057.
18. Smt. Hanso
D/o Late Gopi
House No. 12, Basant Nagar,
New Delhi-110057.
19. Smt. Rano
D/o Late Gopi
House No. 12, Basant Nagar,
New Delhi-110057.
20. Smt. Bala
D/o Late Gopi
House No. 12, Basant Nagar,
New Delhi-110057.
21. Smt. Shanti
D/o Late Gopi
House No. 12, Basant Nagar,
New Delhi-110057.
22. Smt. Leela
D/o Late Gopi
House No. 12, Basant Nagar,
New Delhi-110057.
23. Sh. Bishan Swaroop
S/o Late Bihari Lal
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CNR No. DLWT03-000023-1995
H. No. 12, Basant Gaon/ Nagar,
New Delhi-110057
24. Delhi Development Authority
Through its Vice-Chairman,
Vikas Sadan, I.N.A.,
New Delhi.
..... Defendants.
SUIT FOR PERMANENT AND MANDATORY INJUNCTION
AND DECLARATION
Date of institution : 08.12.1995
Date of reserving order for judgment : 16.10.2023
Date of final order : 31.10.2023
Final Order : DISMISSED
JUDGMENT
Brief Facts
1. The factual matrix of the present case is that the plaintiffs are the permanent residents of Basant Village/ Nagar and having ancestral properties in Basant Village/ Nagar which includes H. No. 54 and a plot of 300 sq. yards approx. which falls in Shyamlat Deh of the village in between the power house and house no. 203, forming part of Khasra no. 33/1-9. That the said plot is not earmarked so far. That the defendants also reside at Basant Gaon and having ancestral property. The defendants belong to one family.
That defendant no. 1 and his family were having Atta Chakki near the abovesaid plot of 300 sq. yards in Shyamlat Deh. The same was acquired by the Government and Power House was made on the said land. That when the plaintiffs enquired from the defendants, _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 4 of 28 CNR No. DLWT03-000023-1995 they replied that they got a plot of 200 sq. yards as compensation at the back of House no. 12, Basant Gaon/ Nagar, New Delhi-110057. That the defendants want to grab the land of the plaintiff. That the plaintiff has made his physical and actual possession over the said land and bounded the same with barbed wire.
That on 26.11.1995, defendants came to dispossess the plaintiffs from the property of the plaintiffs and plaintiff made a call at 100 no. and by the interference of the police officers, the defendants failed to succeed in their illegal design of dispossessing the plaintiff from the said land.
That the plaintiff has given the notices and representations to various local authorities and even public notice in the newspaper but nobody has come to claim his right on the suit property. That the plaintiffs had lodged complaints against the defendants with various authorities on 01.12.1995 and 05.12.1995 and succeeded to protect the possession till date.
That during the pendency of the present suit, the defendants in connivance with DDA has taken forcible physical possession of the suit property from the plaintiff on 27.10.2004 Hence, the present suit has been filed by the plaintiffs seeking relief of declaration to declare the plaintiff as the owner of the suit property, to restrain the defendants, their associates, agents and family members from dispossessing the plaintiff from the suit property and to restore the physical possession of the suit property from the defendants and DDA to the plaintiffs by way of mandatory injunction.
2. Summons of settlement of issues were issued to the _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 5 of 28 CNR No. DLWT03-000023-1995 defendant no. 1 to 3 and they filed their written statements.
3. In the Written Statement, the defendant no. 1 denied all the averments made by the plaintiffs and had taken certain preliminary objections. That the plaintiff has filed the present suit for declaration and injunction but no notices u/s 53B of the DDA,1957 has been served and suit is liable to be dismissed. That the plaintiff is not in the possession of the suit property and therefore, a mere suit for declaration and injunction is not maintainable. That the suit has not been properly valued by the plaintiffs for the purpose of court fees and jurisdiction. On merits, it is averred by defendant no. 1 that the lad which has been referred by the plaintiffs form part of khasra no. 133/27 min & 13/3/6 min of Village Vasant Nagar. That the said land has already stands acquired vide Award no. 1879 and the possession has already been taken over by the Government and has been placed at the disposal of defendant no. 1. That the plaintiffs are neither in occupation nor have any concern with the land under reference. That the plaintiffs tried to encroach upon the Government land but they could not succeed.
4. In the Written Statement, the defendant no. 2 & 3 denied all the averments made by the plaintiffs and had taken certain preliminary objections. That the present suit of the plaintiffs is without any cause of action and the plaintiffs have concealed the material facts from this court. That the plaintiffs are neither the owner nor in possession of the suit property. That the suit property in the case filed by the defendant no. 3 is different from the suit property of the present case. That the plaintiffs are claiming the suit property falling under Khasra No. 33/1-9 and the suit property of the defendant no. 2 & 3 falls in Khasra no. 133/27. That the present suit is not maintainable _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 6 of 28 CNR No. DLWT03-000023-1995 under Order II Rule 2 CPC and liable to be stayed under Section 10 of CPC as the suit pertaining to same property is already pending titled as Shyam Lal & Ors Vs. Gokul Chand & Ors. That the defendant no. 2 & 3 became the owners of the property on the basis of letter dated 02.04.1987 and no injunction cannot be passed against the owner of the suit property. That the defendant no. 2 & 3 had paid consideration to the defendant no. 1 and after receiving consideration, defendant no. 1 duly issued letter dated 15.05.1987 and handed over the possession of the same. That the suit of the plaintiffs is time barred even as per the averments of the plaint. That the defendant no. 2 & 3 are the resident of House No. 12, Village Basant and also 1-C, Basant Village, as the same was allotted and handed over by the DDA in the year of 1987. That on one hand, the plaintiffs are claiming to be the owner of the property and on the other hand gave public notice in the local newspaper and invited claim by any person in respect of the so called plot of the plaintiffs. That the plaintiffs are not in the possession of any part of the premises or so called plot.
That in lieu of the structure of the defendant no. 2 & 3 demolished during the period of emergency in the year 1975-76, the DDA on 02.04.1987 allotted a piece of land measuring 200 sq. yards bearing Municipal No. 1-C, Village Basant, New Delhi. That the DDA directed to deposit the cost of the land @ Rs. 13/- per sq. yards and after complying the said order on 04.04.1987 by depositing Rs.2,600/-, the said plot was allotted to the defendant no. 2 & 3. That the plaintiffs have not filed a single document of their ownership. That the plaintiffs are habitual litigants and have filed frivolous suits against various persons.
That the plaintiffs have himself mentioned in the plaint that they had gathered the knowledge in the year 1996 and seeking the _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 7 of 28 CNR No. DLWT03-000023-1995 relief of declaration by way of present suit in the year 2004, which is barred by Limitation Act,1963.
5. Thereafter, plaintiffs have filed replication to the WS of defendant no. 1 to 3 denying all the averments made in the WS and re- affirming the contents of the plaint.
6. Thereafter, due to non-appearance, LRs of defendant no. 2 are proceeded against ex-parte vide order dated 25.11.1997.
7. Subsequently, DDA is made one of the defendant i.e. defendant no. 4 in the present matter on an application filed under Order I Rule 10 by the plaintiff and DDA filed her written statement.
8. In the written statement, defendant no. 4/DDA denied all the averments made in the plaint by the plaintiffs and had taken certain preliminary objections. It has been averred by defendant no. 4 that the suit property is situated in Khasra no. 133/27 min of Village Basant Nagar, New Delhi, which stand acquired vide award no. 1879, possession of this land was taken by LAC, L&B and handed over to DDA on 28.03.1966. That the suit property was duly placed at disposal of DDA vide notification no. F.8(49)/63-L & H(ii) under section 22 of Delhi Development Act on 03.01.1968. That the suit property has been transferred to the Horticulture deptt. Of DDA on 19.06.1971. That the plaintiff has no right, title or interest in the land and the suit of the plaintiff is liable to be dismisses under Section 41(j) of Specific Relief Act, 1963. That the plaintiff has deliberately mentioned the Khasra no. of suit land as 33/1-9 whereas it is actually 133/27. That the plaintiff has not issued the mandatory notice u/s 54B of DD Act. That the plaintiff has averred that the defendant has taken the possession of the _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 8 of 28 CNR No. DLWT03-000023-1995 suit property on 27.10.2004. That after, dispossession, the plaintiff is not entitled to maintain the suit for perpetual injunction rather the proper remedy is a suit for possession which the plaintiff has not sought.
That out of said Khasra no. 133/27 min a plot measuring 200 sq. yards was allotted by DD/NL in favour of Ms Bihari Lal & Gokul Chand and allottee has been put in possession thereof. That the adjoining land measuring 100 sq. yards lying vacant has been bounded by boundary wall by DDA at site.
9. Thereafter, plaintiffs have filed replication to the WS of defendant no. 4/DDA denying all the averments made in the WS and re-affirming the contents of the plaint.
10. On the basis of pleading, the following issues were framed by the court vide order dated 21.03.2003 and 05.10.2012:-
1. Whether the plaintiff is entitled for declaration that he is the owner of the suit property? OPP
2. Whether the plaintiff has no locus standi to file the suit? OPD.
3. Whether the suit is barred by limitation? OPD.
4. Whether the suit of the plaintiff is not maintainable in the present form? OPD
5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 9 of 28 CNR No. DLWT03-000023-1995
6. Whether the suit is bad for mis-joinder of necessary and proper parties? OPD
7. Whether the defendants have been in possession of the suit property since its allotment as alleged? OPD
8. Relief
9. Whether the plaintiff is entitled to decree of mandatory injunction as prayed for? OPP
10. Whether the suit is bad for want to mandatory notice under Section 53B of Delhi Development Act, 1957? OPD
11. Whether the suit property stands acquired vide Award no. 1879? OPD
11. Thereafter, vide order dated 18.10.2016, all defendants except DDA are proceeded ex-parte.
12. In support of his case, the plaintiff examined himself as PW1 who has tendered his evidence by way of affidavit Ex PW1/A. In his examination in chief, PW1 mostly reiterated the averments as made in the plaint and relied upon and produced the following documents on record:-
1. Site Plan which is Ex PW1/1.
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2. Public Notice dated 17.11.1995 which is Ex.PW1/2.
3. Notice of Advocate and receipt of newspaper office which is Ex. PW1/3 and Ex. PW1/4.
4. Legal Notice dated 15.11.1995 which is Ex.PW1/5.
5. Jamabandi & Khasra Girdavari issued by the then Patwari which is Ex. PW1/6 (colly).
6. Letter dated 03.11.1995 which is Ex. PW1/7.
7. Letter given to DDA dated 02.11.1995 which is Ex. PW1/8.
8. Complaint dated 01.12.1995 made to police and DDA which is Ex. PW1/9 (colly).
9. Complaint dated 05.12.1995 which is Ex.PW1/10.
10. Complaint to DCP dated 05.05.1998 which is Ex. PW1/10A.
11. Certified copy of kalandra u/s 107/151 CR.P.C. which is Ex. PW1/11.
12. Statement of Laxmi Narain, deponent Mahesh _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 11 of 28 CNR No. DLWT03-000023-1995 and Hari Ram which is Ex. PW1/12(colly).
13. Report given to Commissioner of police dt.
25.10.2004 snd 26.10.2004 which is Ex.
PW1/13(colly).
14. Legal Notice to Vice-Chairman DDA and Vigilance Department dt. 27.08.2004 and to SHO dt. 28.08.2004 which is Ex. PW1/14(colly).
15. Photographs and negatives which is Ex.PW1/15(colly).
16. Copy of sizra issued by DDA which are Ex.PW1/16(colly).
17. Application dt. 27.02.2006 to DDA LM and RTI dt. 07.06.2006 and reply dt. 19.06.2006 which are Ex. PW1/17(colly).
18. RTI reply dt.31.08.2006 which is Ex. PW1/18.
19. RTI reply dt.04.09.2006 which is Ex. PW1/19.
20. RTI reply dt.13.09.2006 which is Ex. PW1/20.
21. RTI appeal dt.17.01.2008 which is Ex. PW1/21.
22. RTI reply dt.17.01.2008 which is Ex. PW1/22.
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23. RTI reply dt.03.06.2008 which is Ex. PW1/23.
24. RTI dt. 25.06.2008 which is Ex. PW1/24.
25. RTI application dt.06.01.2009 which is Ex.PW1/25.
26. RTI reply dt.09.03.2009 which is Ex. PW1/26.
27. RTI reply dt.26.05.2009 which is Ex. PW1/27.
28. RTI reply dt.11.06.2009 which is Ex. PW1/28.
29. RTI reply dt.19.06.2009 which is Ex. PW1/29.
30. RTI reply dt.07.07.2009 which is Ex. PW1/30.
31. RTI reply dt.13.07.2009 which is Ex. PW1/31.
32. RTI dt.13.10.2009 which is Ex. PW1/32.
33. RTI dt.01.02.2010 which is Ex. PW1/33.
34. RTI reply dt.05.01.2011 & 18.03.2011 which is Ex. PW1/34.
35. Order on appeal against RTI reply dt.26.05.2009 which is Ex. PW1/35.
36. RTI dt.04.02.2011 which is Ex. PW1/36.
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37. RTI dt.18.09.2006 which is Ex. PW1/37.
38. RTI dt.02.05.2011 which is Ex. PW1/38.
39. RTI dt.03.06.2008 which is Ex. PW1/39.
40. Letter to DEP dt. 05.06.2002 which is Ex.PW1/40.
41. RTI dt.01.07.2009 which is Ex. PW1/41.
42. RTI dt.11.10.2010 which is Ex. PW1/42.
43. RTI dt.01.02.2010 which is Ex. PW1/43.
44. RTI dt.05.07.2010 which is Ex. PW1/44.
45. Copy of letter dt.04.03.1980 which is Ex.PW1/45.
46. Letter of residence welfare association dt.06.07.1993 which is Ex. PW1/46.
47. Complaint by Ved Prakash dt.15.09.1994 which is Mark A. PW1 was duly cross-examined by Ld. Counsel for DDA/defendant no. 4. He deposed that he did not remember the dimensions of the suit property. He further deposed that he did not _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 14 of 28 CNR No. DLWT03-000023-1995 know the specific Khasra No. out of Khasra no. 33/1-9 wherein his property is situated. He further deposed that he did not know the specific area of Khasra no. 33/1 to 33/9. He further deposed that he never got the disputed land demarcated from the revenue authority. He further deposed that no municipal no. has been assigned to the suit property. He further deposed that it is correct that there is boundary wall of DDA around the land measuring about 100 sq. yards. He further deposed that adjacent to the boundary wall of DDA, there is open land about 22 sq. yards which is lying vacant and he is not in possession of the said land. He further deposed that it is correct that he and all the defendants except DDA are the descendants of Sh. Sheolal. He further deposed that it is correct that no transfer documents ever executed in his favour or in favour of his father by other LRs of Sh. Sheolal and no NOC was issued in their favour by other LRs in respect of the disputed land. He further deposed that except, Ex. PW1/6, no other record is in existence in their favour in respect of Khasra No. 33/1-9. He admitted he plan of disputed land Ex. PW1/D1.
13.1. In support of his case, the plaintiff also examined Sh.Chander Bhan, Assistant Director, Horticulture Division-IV, Sheikh Sarai, Phase-I, New Delhi as PW2 who deposed that they did not possess any land in Vasant Nagar/ Village at present and also did not possess any record in respect of the land falls in Vasant Nagar/ Village. He further deposed that he did not know the Khasra no. of the land falls in front of power house of Vasant Nagar/ Village.
PW2 was not cross examined by Ld. Counsel for Defendant no. 4/ DDA despite opportunity being given.
13.2. In support of his case, the plaintiff also examined _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 15 of 28 CNR No. DLWT03-000023-1995 Sh.Ram Kumar, Patwari, SDM, Vasant Vihar, New Delhi as PW3 who deposed that he did not have summoned record in respect of Khasra no. 133/27, Vasant Village/Nagar. He brought the photocopy of tatima in respect of Khasra no. 33/1-9. He deposed that he cannot tell the location of the suit property.
PW3 was duly cross examined by Ld. Counsel for Defendant no. 4/ DDA.
13.3. In support of his case, the plaintiff also examined Sh. Jai Prakash, Patwari, Patwari, SDM, South West Zone, DDA, Vikas Sadan, INA, New Delhi as PW4 who had not brought the summoned record and deposed that demarcation report in respect of Khasra no. 33/1-9, 13/3/6 and 133/27 as the same is not in the record of DDA.
PW4 was not cross examined by Ld. Counsel for Defendant no. 4/DDA despite opportunity being given.
Thereafter, PE is closed.
14. Thereafter, the defendant no. 4/DDA has examined Sh.Harsh Vardhan Sharma, Naib Tehsildar, DDA as DW1, who tendered his evidence by way of affidavit Ex DW1/A and relied upon and produced the following documents:-
1. Photocopy of award no. 1879 which is Ex. DW1/1.
2. Photocopy of possession proceedings which is Ex.DW1/2.
3. Copy of notification dated 03.01.1968 under Section 22(1) of DD Act which is Ex. DW1/3.
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4. Aks Sijra of Village Basant Nagar showing the khasra no. 133/27 which is Ex. DW1/4.
DW1 was duly cross examined by Ld. Counsel for plaintiffs. He deposed that he cannot say whether the Khasra no. 33/1- 9 falls in between house no. 203 and power house. He further deposed that the suit land is adjacent to the power house and is acquired land. He further deposed that he cannot tell the khasra no. of power house. He further deposed that the possession of 100 sq. yards was taken over vide possession proceedings Ex. DW1/2.
Thereafter, DE stands closed.
15. On 07.01.2020, fresh amended memo of parties filed and DDA is now defendant no. 24.
16. I have heard the arguments on behalf of plaintiffs and defendant no.24/DDA have carefully gone through the case file and written arguments filed on behalf of both the parties.
17. Issuewise findings as follows:-
Issue no. 1 & 2 Both these issues are interconnected and can be decided together. Therefore, all the issues have been taken together.
The burden to prove issue no. 1 is on the plaintiff and burden to prove issue no. 2 is on the defendants. In order to prove issue no 1, plaintiff has relied upon certain documents which have been exhibited by the plaintiff during his examination in the present case as well as connected case. The plaintiff has averred that they have _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 17 of 28 CNR No. DLWT03-000023-1995 ancestral properties in the Village Basant, Delhi which includes House no. 54 and a plot of 300 sq. yards in Khasra No. 33/1-9. The Jamabandi and Khasra girdawari placed on record by the plaintiff in the connected suit which is Ex. PW1/6 (colly) shows the name of the plaintiff's ancestors. The present suit has been filed by the plaintiff for the land admeasuring 300 sq.yards which forms part of Shyamlat Deh. It has been further averred by the plaintiff that the land of Khasra no. 133/27 was acquired by the Government vide Award no. 1879. That the land measuring 200 sq. yards out of the suit property of 300 sq. yards have been allotted to the defendants by DDA in the year 1987 despite the fact that the suit property was never acquired by the Government or DDA, therefore, the allotment as well as other documents are bad in law.
It has been argued by Ld. Counsel for the plaintiff that defendant no. 24/DDA admitted in the written statement that since 19.06.1971, the Government land falls in Khasra no. 133/27 is with Horticulture Department of DDA. That under RTI Enquiry, the Horticulture Department on 02.05.2011 which is Ex. PW1/38 in connected case, stated that the land in between House no. 203 and power house admeasuring 320 sq. yards never remain with them in which suit property is situated. That the letter issued by the Residence Welfare Association dated 03.11.1995 confirms the ownership right of the plaintiffs. That the plaintiffs also paying the House Tax to MCD as owner of the suit property. That the defendants initially claim their right over the suit property on the basis of letter issued by DDA dated 02.04.1987, 15.05.1987 and 12.06.1987 vide file no. F-22(40) 78/CRC and all these documents are forged and fabricated. That in RTI dated 13.07.2009 DDA confirmed that no record of demolition slip is available and they also not only confirm that no documents issued by _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 18 of 28 CNR No. DLWT03-000023-1995 DDA without dispatch number but also replied that file no. F-22(40) 78/CRC is not available with the DDA. That the defendants in connivance with each other also got registered the Lease Deed in 2009 on the basis of site plan prepared by JE on 24.11.2008 whereas as alleged the allotment was made to defendants way back in 1987.
Hence, JE alone cannot prepare the site plan and handing over the possession documents. That the defendants alleged that the suit property is allotted to them in lieu of demolition of Atta Chakki and it is settled law that DDA/defendant no. 24 cannot allot any alternate plot either commercial or in any manner residential plot to anybody in lieu of commercial property demolition. That the land under Khasra no. 133/27 which is 1 bigha 14 biswa was handed over to the Horticulture Department of DDA on 19.06.1971 and after developing Park, the Horticulture Department transferred the said land to MCD. Hence, the allotment of 200 sq. yards land to the defendant from this Khasra does not arise. That the DDA has taken forcible physical possession of 120 sq. yards from plaintiff on the pretext that the same is earmarked for parking purpose and DDA has confirmed that no parking has been developed by the DDA in Basant Nagar Ex. PW1/34 & 35.
In the present suit, the plaintiff has sought the relief of declaration of owner of the suit property. The location of the suit property is itself in dispute whether it falls in Khasra no. 33/1-9 or 133/27. The plaintiff has stated the suit property to be measuring 300 sq. yards but no dimensions have been stated by the plaintiff anywhere during the whole trial. PW1 during his cross-examination also deposed that he did not remember the dimensions of the suit property. That the plaintiff has not placed on record any single documents regarding the ownership of the suit property except the revenue record i.e. _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 19 of 28 CNR No. DLWT03-000023-1995 Ex.PW1/6 (colly). Moreover, PW1 during his cross-examination duly admitted that except Ex. PW1/6, no other record is in existence in their favour in respect of Khasra no. 33/1-9. He also admitted during his cross-examination that no transfer document ever executed in his favour or in favour of his father by the LRs of Sh. Sheolal or no NOC was ever issued by other LRs in their favour.
In Union of India & Ors Vs. Vasavi Co-operative Housing Society Ltd & Ors (2014) 2 SCC 269, wherein it is held that:-
"17. This court in several judgments has held that the revenue records does not confer title. In corporation of the City of Bangalore Vs. M. Papaiah and Another (1989) 3 SCC 612 held that " it is firmly established that revenue records are not documents of title, and the question of interpretation of document not being a document of title is not a question of law." In Guru Amarjit Singh Vs. Rattan Chand and Others (1993) 4 SCC 349 this court has held that " That the entries in jamabandi are not the proof of title". In State of Himachal Pradesh Vs. Keshav Ram and Others (1996) 11 SCC 257 this court held that " the entries in the revenue papers, by no stretch of imagination can form the basis of declaration of title in favour of the plaintiff".
In Khasra no. 33/1-9 there are total 9 khasras and the plaintiff was not aware of the exact khasra no. where the suit property situates as the same is deposed by PW1 during his cross-examination that he did not know the specific Khasra no. out of Khasra no. 33/1-9 wherein his property I situated and he did not know the specific area of Khasra no. 33/1 to 33/9. Even, PW3 i.e. Patwari fails to tell the Khasra no. in which the suit property falls. PW1 during his cross- examination also admitted that he has never got the suit land demarcated from the revenue authority.
_________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 20 of 28 CNR No. DLWT03-000023-1995 PW2 deposed that the suit property falls in Shyamlat Deh i.e. the land which belongs to the group of people.
In Jagpal Singh Vs. State of Punjab (2011) 11 SCC 396, wherein it is held that:-
"2. Since time immemorial there have been common lands inheriting in the village communities in India, variously called Gram Sabha Land, Gram Panchayat Land (in many North Indian States), shamlat deh (in Punjab etc.) , Mandaveli and Poramboke Land (in South India), Kalam, Maidan etc. depending on the nature of user. These public utility lands in the villages were for centuries used for the common benefit of the villagers of the village such as ponds for various purposes eg. for their cattle to drink and bathe, for storing their harvested grain, as grazing ground for the cattle, threshing floor, maidan for playing by children, carnivals, circuses, Ramlila, cart stands, water bodies, passages, cremation ground or graveyards etc. These lands stood vested through local laws in the State, which handed over their management to gram sabhas/ gram panchayats. They were generally treated as inalienable in order that their status as community land be preserved. There were no doubt some exceptions to this rule which permitted the gram sabha/ gram panchayat to lease out some of this land to landless labourers and members of the scheduled castes/ tribes, but this was only to be done in exceptional cases. This court in several judgments has held that the revenue records does not confer title. In corporation of the City of Bangalore Vs. M. Papaiah and Another (1989) 3 SCC 612 held that " it is firmly established that revenue records are not documents of title, and the question of interpretation of document not being a document of title is not a question of law." In Guru Amarjit Singh Vs. Rattan Chand and Others (1993) 4 SCC 349 this court has held that " That the entries in jamabandi are _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 21 of 28 CNR No. DLWT03-000023-1995 not the proof of title". In State of Himachal Pradesh Vs. Keshav Ram and Others (1996) 11 SCC 257 this court held that " the entries in the revenue papers, by no stretch of imagination can form the basis of declaration of title in favour of the plaintiff".
The plaintiff has to stand on his own legs and has to prove his own case. In Union of India & Ors Vs. Vasavi Co-operative Housing Society Ltd & Ors (2014) 2 SCC 269, wherein it is held that:-
"14. At the outset, let us examine the legal position with regard to whom the burden of proof lies in a suit for declaration of title and possession. This court in Maran Mar Basselios Catholicos Vs. Thukalan Paulo Avira reported in AIR 1959 SC 31 observed that " In a suit for declaration if the plaintiffs are to succeed, they must do so on the strength of their own title." In Nagar Palika, Jind Vs. Jagat Singh, Advocate (1995) 3 SCC 426, this court held that " the onus to prove title to the property in question was on the plaintiff. In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the plaintiff. The court is bound to enquire or investigate that question first before going into any other question that may arise in a suit."
The plaintiff himself averred in his plaint that he had given notices and representations to various authorities and even public notice in the local newspaper but nobody has come to claim his right on the property in question. The newspaper "The Statesman"
dated 17.11.1995 is Ex. PW1/2 in the connected case. This public notice shows that the plaintiff himself has doubt about his ownership over the suit property otherwise no man would have issued such public notice calling general public to raise claim if any to his property. This _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 22 of 28 CNR No. DLWT03-000023-1995 also creates doubt over the ownership of the plaintiff over the suit property. Moreover, none of the official witness examined by the plaintiff in the present case or the connected case deposed that the suit land falls in Khasra no. 33/1-9.
In view of above facts and circumstances, the plaintiff failed to prove his ownership over the suit property. Consequently, the plaintiff has failed to prove his locus standi to file the present case.
Accordingly, issue no. 1 & 2 are decided against the plaintiff and in favour of the defendants.
Issue no. 3.
The burden to prove this issue is on the defendants. All the defendants except DDA have been proceeded ex-parte and no evidence has been led by the defendant no. 24/DDA or nothing is placed on record on behalf of defendants to prove this issue that the present suit is barred by limitation.
In view of these facts and reasons, issue no. 3 is decided against the defendants and in favour of the plaintiff.
Issue no. 4 & 9.
The burden to prove issue no. 4 is on the defendants and burden to prove issue no. 9 is on the plaintiff. The plaintiff in the present suit seeks the possession of the suit property from the defendants by way of mandatory injunction.
It is a settled law and already held in catena of judgments by Hon'ble Apex Court and Hon'ble High Court of Delhi that a person out of the possession cannot seek the relief of possession _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 23 of 28 CNR No. DLWT03-000023-1995 by way of mandatory injunction simplicitor, without claiming the relief of possession in case of illegal possession by the defendant. The recovery of possession by way of mandatory injunction is only maintainable in case of licensor-licensee relationship.
Therefore, the plaintiff is not entitled for the relief of possession by way of mandatory injunction and the present suit is not maintainable in the present form.
Moreover, the plaintiff in the present suit seeks declaration that he is the owner of the suit property which is decided against the plaintiff while deciding the issue no.1.
Section 34 of Specific Relief Act, 1963 provides the discretion of the court as to declaration of status or right and lays down that:-
"Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so."
In the present case, the plaintiff is alleged to be dispossessed during the pendency of the present suit and the plaintiff has filed an application under Order VI Rule 17 to amend the plaint for seeking the possession by way of mandatory injunction instead of seeking the exclusive relief of possession of the suit property. Therefore, the present suit of the plaintiff is also not maintainable in _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 24 of 28 CNR No. DLWT03-000023-1995 terms of Section 34 of The Specific Relief Act, 1963.
In view of these facts and reasons, issue no.4 & 9 is decided against the plaintiff and in favour of the defendants.
Issue no. 5.
The burden to prove this issue is on the defendants. All the defendants except DDA have been proceeded ex-parte and no evidence has been led by the defendant no. 24/DDA or nothing is placed on record on behalf of defendants to prove this issue that the present suit is not properly valued for the purpose of court fees and jurisdiction.
In view of these facts and reasons, issue no. 5 is decided against the defendants and in favour of the plaintiff.
Issue no. 6.
The burden to prove this issue is on the defendants. All the defendants except DDA have been proceeded ex-parte and no evidence has been led by the defendant no. 24/DDA or nothing is placed on record on behalf of defendants to prove this issue that the present suit is bad for misjoinder of necessary and proper parties.
In view of these facts and reasons, issue no. 6 is decided against the defendants and in favour of the plaintiff.
Issue no. 7.
The issue shows that burden to prove this issue shall be on other defendants except defendant no. 24/DDA. All the defendants except defendant no. 24/DDA have been proceeded ex-parte and no evidence has been led by them or nothing is placed on record by them to prove this issue that they are in possession of the suit property since _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 25 of 28 CNR No. DLWT03-000023-1995 its allotment as alleged.
In view of these facts and reasons, issue no. 7 is decided against the defendants and in favour of the plaintiff.
Issue no. 10.
The issue shows that burden to prove this issue shall be on defendant no. 24/DDA. No evidence has been led by the defendant no. 24/DDA or nothing is placed on record by defendant no. 24/DDA to prove this issue that the present suit is bad for want of mandatory notice under Section 53B of Delhi Development Act, 1957.
Per contra, the plaintiff has placed on record three notices which are Ex. PW1/5, Ex. PW1/14 and Ex. PW1/18 sent by the plaintiff to the defendant no.4/DDA, which can be deemed as notice under Section 53B of Delhi Development Act, 1957. Moreover, the defendant no. 24/ DDA has been added as defendant in the present suit after an application filed by the plaintiff under Order I Rule 10 CPC. The service of said application to the defendant no. 24/DDA can also be deemed as notice under Section 53B of Delhi Development Act, 1957.
Section 53B of Delhi Development Act, 1957 provides for notice to be given of the suits and lays down that :-
(a) 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 direction of the Authority or any member or any officer or other employee of the Authority in respect of any act done or made 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 Authority, left at its office, and in any other case, delivered to, or _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 26 of 28 CNR No. DLWT03-000023-1995 left at the office or place of abode of, the person to be sued and unless such notice states explicitly the cause of action, the nature of relief sought, the amount of compensation claimed and the name and place of residence of the intending plaintiff and unless the plaint contains a statement that such notice has been so left or delivered.
(b) 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.
(c) 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.
In view of these facts and reasons, issue no. 10 is decided against the defendants and in favour of the plaintiff.
Issue no. 11.
The issue shows that burden to prove this issue shall be on defendant no. 24/DDA. In order to prove this issue, defendant no. 24/DDA has placed on record the copy of award no. 1879. The plaintiff has failed to prove that the suit property falls in Khasra no. 33/1-9. As per the defendant, the suit property falls in Khasra no. 133/27 and the documents placed on record somewhere shows that the suit property falls in Khasra no. 133/27. As per the copy of award no. 1879, the land in Khasra no. 133/27 measuring 1 bigha 14 biswa has been acquired and the said fact is not even denied by the plaintiff. Moreover, the said fact is also averred by the plaintiff in his plaint.
In view of these facts and reasons, issue no. 11 is decided in favour of the defendants and against the plaintiff. _________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 27 of 28 CNR No. DLWT03-000023-1995 Relief.
18. In view of the aforesaid discussion, the suit of the plaintiff is dismissed.
19. Parties to bear their own costs.
File be consigned to record room after necessary compliance.
Announced in open Court on this 31th day of October 2023. Digitally signed This Order contains 28 pages MAYANK by MAYANK GOEL and signed by me.
GOEL Date: 2023.10.31
16:25:40 +0530
(MAYANK GOEL)
ACJ/CCJ/ARC (WEST)
TIS HAZARI COURTS/DELHI
_________________________________________________________________________ CS SCJ 363/2014 8082/16 Shyam Lal Vs. Gokul Chand & Ors Page no. 28 of 28 CNR No. DLWT03-000023-1995