Delhi District Court
Delhi Development Authority vs Sh. Radhey on 9 September, 2020
In The Court of Sh. Sanatan Prasad,
Additional District Judge01, (East),
Karkardooma Courts, Delhi.
RCA DJ NO. 161/2017.
In the matter of :
Delhi Development Authority,
Through its Vice Chairman,
Vikas Sadan, INA, New Delhi. .....APPELLANT
VERSUS
SH. RADHEY,
(Since dead through his LRs):
(i) Smt. Beero widow of Sh. Radhey,
(ii) Sh. Rafal Singh son of Sh. Radhey,
(iii) Ravinder son of Sh. Radhey,
(iv) Jitender son of Sh. Radhey,
(v) Dharmender son of Sh. Radhey,
(vi) Ms. Savita daughter of Sh. Radhey,
All R/o Village Kondli, Shahdara, Delhi96.
(vii) Smt. Sunita, daughter of Sh. Radhey,
wife of Sh. Yeshpal,
R/o Village Jaunpur, P.S. Mehrauli, New Delhi30.
(viii) Smt. Kavita, daughter of Sh. Radhey,
Wife of Sh. Vijender, R/o Village Peera Garhi,
60, Paschim Enclave, New Delhi.
2. Shyam son of Sh. Liley,
RCA DJ No. 161/2017
DDA V. Radhey
DOD : 09.09.2020 Page No.1 of 32
3. Ghanshyam son of Sh. Liley,
4. Rampal son of Sh. Liley,
5. Gianinder (deceased), son of late Sh. Indal,
R/o 55, Kondli Village, Delhi96.
Through LR's:
a. Smt. Kamlesh widow of late Sh. Gianinder,
b. Sh. Deepak Singh, s/o late Sh. Gianinder,
c. Sh. Anuj Singh, s/o late Sh. Gianinder,
All Resident of 55, Kondli Village, Delhi96
d. Smt. Renu Singh W/o Sh. Manish Kasana,
R/o 81/162, Near National Public Shcool
Rajender Nagar, Ghaziabad.
6. Dhyan Singh son of Sh. Indal,
7. Azad Singh son of Sh. Indal,
All Resident of :
Village Kondli, Shahdara
Delhi. .........RESPONDENTS
Date of Institution : 30.11.2017
Date of Reserving Order : 04.09.2020
Date of Decision : 09.09.2020
Appeal U/s 96 CPC, against the impugned Judgment/Order,
dated 21.01.2017, passed by the Ld. Court of Sh. Devender
Kumar Garg, Ld. JSCCASCJGJ, SHAHDARA, KKD
Courts, Delhi.
Present :Sh. Kshitiz Ahuja, Ld. Counsel for the appellant/DDA.
Sh. Gaurav Puri and Sh. Narender Chaudhary , Ld.
Counsels for all the respondents.
RCA DJ No. 161/2017
DDA V. Radhey
DOD : 09.09.2020 Page No.2 of 32
JUDGMENT
1. This is an appeal, directed, against the impugned judgment and decree, dated 21.01.2017, passed by the then Court of Shri Devender Kumar Garg, Ld. JSCCASCJGJ(Shahdara), Karkardooma Courts, Delhi, vide which, the Ld. Trial Court had decreed, the Civi Suit No. 7710/2016, of the then plaintiffs/present respondents, while granting the relief of Permanent Injunction, restraining the then defendant/present appellant and their officials from forcibly and illegally dispossessing the then plaintiffs/present respondents from the suit property, bearing Khasra No. 552/440(4
6), situated in the revenue estate of Village Kondli, Tehsil Preet Vihar, District East, New Delhi, without following due process of law and also from causing any interference or obstruction in the peaceful use and possession of the then plaintiffs alongwith costs of the suit.
2. Feeling aggrieved with the impugned judgment and decree, the present appellant/the then defendant has filed the present appeal, accompanied with an application Under Section 5, of the Limitation Act for condonation of delay of 273 days in filing the present appeal with further application, being moved under Order 41, Rule 20, CPC, R/W Order 1, Rule 10, CPC; for impleadment of certain respondents, though, arrayed as then plaintiffs, in the suit filed originally but left herein, in the present appeal, due to inadvertence and the same application being allowed, vide my order dated 04.09.2020, in the matter and even the amended memo of the parties is on record of the appeal.
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3. Notice of the appeal, was issued, to the present respondents, who have put their appearance, through counsel/(s) and have filed reply to the Memorandum of Appeal, also reply to the application for condonation of delay in the matter, and even further reply to the application under Order 41, Rule 20, CPC; and as such the order dated 04.09.2020, inadvertently, notes the submissions made by Sh. Narender Chaudhary, Ld. Counsel for the respondents that he would not file any formal reply to this application, though, the reply, already filed, on 17.05.2018 is on record.
4. The appellant, has challenged, the impugned order, on various grounds, interalia that the Ld. Court below had misdirected itself, thoroughly, while deciding the suit and as such the impugned judgment and decree, dated 21.01.2017 are against the law and facts in the case, thus, being perverse as the documents placed on record were not duly appreciated. Hence, the Ld. Court below did not apply its judicial mind in appreciating the evidence on record, resulting in the illegal and erroneous impugned judgment and decree, which is against the settled propositions of law and also did not appreciate the fact that as per Award No. 66/8384, the suit land was an acquired one, vesting with the DDA/present appellant and even the then plaintiffs had already taken the compensation for the same. Further, the Ld. Trial Court erred in holding that DDA had failed to establish that the land belongs to it and thus, failed to appreciate the fact that the then plaintiffs had failed to prove the fact that the suit property falls in RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.4 of 32 Khasra No. 552/440, Village Kondli, Delhi, as alleged by them, inasmuch as, the Akssizra, as exhibited, by the then plaintiffs failed to show as to where the suit property fell. Further, there is no mention of Khasra No. 552/440, Village Kondli in the Aks sizra, filed by the then plaintiffs, who therefore, had failed to prove the fact as to where the suit property situates, moreover, the Ld. Trial Court had failed to appreciate the fact that the then plaintiffs had further failed to prove as to how and even in what proportions Khasra No. 440 was divided and in absence of the same, claim of the then plaintiffs that the suit property/land was part of the Khasra No. 552/440, Village Kondli, Delhi, miserably, falls flat. Even they did not file the Intekaal(mutation), Register with respect to Khasra No. 440 and as such the reliance placed by the Ld. Trial Court upon the Akssizra of Khasra No. 440 did not prove the case of the then plaintiffs since the Akssizra did not mention the khasra number, as claimed by the then plaintiffs, accordingly, the Ld. Court below has erroneously, decided the Issues Nos. 1 & 2 in favour of the then plaintiffs and against the present appellant/the then defendant and as such the impugned judgment and decree is liable to be reversed and set aside.
5. I have heard ld. counsels for the parties and perused the record carefully, also written arguments, submitted by the parties. Record of the trial court has also been requisitioned and perused carefully.
6. It further appears that the present appellant has also sought condonation of delay of 273 days, in filing the present RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.5 of 32 appeal, mainly, on the grounds that the Ld. Counsel for the appellant due to inadvertence had mistagged the brief of the present appeal, marked to him with another file of similar nomenclature and therefore, appeal was not filed timely, due to oversight. In the reply filed, to the application for condonation of delay, the grounds taken by the present appellant for condonation of delay, have been forcefully, controverted and even the earlier Ld. Counsel for the present respondents, Sh. Gaurav Puri had filed written arguments, in opposition to the application on 13.08.2020 but on 04.09.2020 a joint submission was made by the Ld. Counsels for both sides, present, that the delay may be condoned by this court and appeal may be taken up for adjudication on merits thereafter. Hence, delay of 273 days in filing the present appeal against the impugned order, dated 21.01.2017 stands condoned in the interest of justice and appeal is now taken up for final adjudication on merits.
7. Sh. Kshitiz Ahuja, Ld. Counsel for the present appellant/the then defendant has launched a frontal attack on the impugned judgment and decree, by putting forward multipronged arguments and his first contention is that as per the settled law of the land, the then plaintiffs had to stand on their own legs and they cannot leap over the weaknesses, of the defence, if any, in terms of conjoint reading of Section 101 and 102 of the Indian Evidence Act, 1872, as they did not file any demarcation report/proceedings to show that the suit property fell in Khasra No. 552/440, Village Kondli, Delhi, on the other hand, the present appellant/the then RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.6 of 32 defendant was able to prove that it fell in Khasra No. 552/441, Vilage Kondli, Delhi and the Ld. Court below failed to appreciate the fact that the onus to prove the Khasra No., where the suit property falls; was upon the then plaintiffs, therefore, the onus did not shift upon the defendant to prove the same to the contrary and therefore, the then plaintiffs did not bring on record sufficient evidence to prove the Issue No. 1, in their favour and as such they cannot succeed on the weaknesses of the then defendant's case. His further submission is that the Akssizra, exhibited as Ex. PW1/4, on behalf of the then plaintiffs to establish that the suit property fell in Khasra No. 552/440, Village Kondli, failed to show as to where the suit property falls, further, there was no mention of Khasra No. 552/440, Village Kondli, Delhi in the Akssizra.
Again, the then plaintiffs/present respondents have further alleged, in their reply to the present appeal that Khasra No. 537/440, 538/440 and 552/440 are different khasra/(s) and they have no relationship with the Khasra No. 537/440 and 538/440, though, they are the part and parcel of the Khasra No. 440 itself and the documents filed by the present respondents, in reply to the present appeal clearly, go to show that the LAC had acquired two parts of Khasra No. 440, Village Kondli i.e. Khasra No. 537/440(110), and Khasra No. 538/440(312), adding up to a total area of 5 bighas and 2 biswas, which means that only 9 biswas of the land was left in the said Khasra and for this the copies of the extract from the field book, filed by the present respondents alongwith their reply to the present appeal, at pages No. 17 and 18 RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.7 of 32 are relied on, showing the areas, therein mentioned accordingly and based on this, the contention of the Ld. Counsel for the appellant is that the claimed area of 4 bigha 6 biswa of Khasra No. 552/440, by the then plaintiffs do not add up to and as such is unattainable and impractical, hence, the claim of the then plaintiffs that the suit land forms the part of Khasra No. 440 is outrageously, false and only a concocted and fabricated story, based solely, upon a manual error on the part of the Revenue Department, GNCTD, which has failed to correct its revenue record with respect to Khasra No. 552/441, even after specific direction to them by the then Ld. LAC, while passing the Award No. 66/8283.
The next objection of the Ld. Counsel for the appellant is on the ground of no Intekaal Register, being filed with respect to Khasra No. 440, on the record of the Ld. Court below and his submission is that in the absence of the same, reliance upon the Akssizra of Khasra No. 440 was wrong by the Ld. Court below as the same Akssizra did not mention the Khasra No. ,as claimed by the then plaintiffs. His further submission is that despite claiming that the Khasra Nos. 552/440(406) and Khasra No. 552/441(406), are adjacent to each other, the then plaintiffs had failed to show as to how the said khasra/(s) are situated, adjacent to each other and the said plea was taken by the then plaintiffs to show that both the Khasras actually exist at a same time since the then defendant had categorically, asserted in its written statement that the Khasra No. 552/441(406), is wrongly, written as khasra No. 552/440(406) in the revenue record and as RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.8 of 32 such the Ld. Court below, again, had erred in passing the impugned judgment and decree in favour of the then plaintiffs and against the then defendant. His further contention is that the pleadings of the then plaintiffs that the suit land fell in Khasra No. 552/440, Village Kondli, are against the recognized revenue practices, adopted by the revenue officials while preparing the revenue record of a particular village. Furthermore, the khasra No. 552/441 was never in dispute and as such the khasra No. 552/440 never existed and thus, taking undue advantage of the error on the part of revenue department of GNCTD, they are trying to grab the public land, more so, the compensation for which has already been taken by them.
Sh. Ahuja has also made an earnest plea that the failure on the part of the Revenue Department, GNCT cannot be a ground for denial of right of DDA, moreover, on the face of the admission of the document Ex. DW1/P1, (which is the letter No. F/LAC/PD/73/Kondli, dated 13.05.1983) and in any case the preponderance of the probabilities was in favour of the then defendant, on the strength of the evidence led by it, on the record of the Ld. Trial Court. His further submission is that the Ld. Trial Court had also failed to appreciate the fact that though, the then plaintiffs, in crossexamination of PW1, had admitted that they have taken the compensation of Khasra No. 552/441, Village Kondli, Delhi,(Ex. Mark 'B', document of the then plaintiffs, marked on 28.01.2012) and even the Jamabandi, produced by the then plaintiffs with respect to their shares in different Khasra Nos.
RCA DJ No. 161/2017DDA V. Radhey DOD : 09.09.2020 Page No.9 of 32 in village Kondli, nowhere mentions of Khasra No. 552/441 and accordingly, the then plaintiff had failed to show as to how (in absence of any share in Khasra No. 552/441, Village Kondli) they have claimed compensation with respect to the above khasra, interestingly and amazingly, admeasuring, exactly the same area (406), as that of Khasara No. 552/440, as alleged by them and this non disclosure of the said details further corroborates the fact that the then plaintiffs from the very beginning had the knowledge that in the revenue record of GNCTD, the Khasra No. 552/441 is written as Khasra No. 552/440 and hence, citing the said reason, they have tried to grab the Government Land, which cannot be allowed by this court.
8. On the strength of the decision of the Hon'ble Supreme Court of India, in Anathula Sudhakar V. P.Buchi Reddy, by LRs and Anr., (2008, 4SCC 594), Sh. Ahuja contends that the suit, filed for Injunction Simplicitor, was not maintainable without seeking the declaration and the relevant portion of the judgment, explaining and enunciating the scope of a suit for Prohibitory Injunction relating to Immovable Property, is relied on by him and quoted as under:
" 11. The general principles as to when a mere suit for permanent injunction will lie, and when it is necessary to file a suit for declaration and/or possession with injunction as a consequential relief, are well settled. We may refer to them briefly.
11.1) Where a plaintiff is in lawful or peaceful RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.10 of 32 possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in WRONGFUL POSSESSION is not entitled to an injunction against the rightful owner. 11.2) ....................
11.3) Where the plaintiff is in possession, but his title to the property is in dispute, or under a clound, or where the defendant asserts title thereto and there is also a threat of dispossession from defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction.
12. We may however clarify that a prayer for declaration will be necessary only if the denial of the title by the defendant or challenge to plaintiff's title raises a cloud on the title of plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. ........."
9. Further, from the record of the Ld. Court below, it appears that authority of the Hon'ble Supreme Court, vide Judgment titled as "Sita Ram Bhandar Society, New Delhi V. Lt.
RCA DJ No. 161/2017DDA V. Radhey DOD : 09.09.2020 Page No.11 of 32 Governor, Govt. of NCT of Delhi and Ors. D.O.D. 15.09.2009 in Civil Appeal No. 48494850, was also relied on by and on behalf of the then defendant, for the same effect, which, however, was found not applicable by the Ld. Court below to the facts of the suit filed and the same was distinguished on facts by the ld. Trial Court.
10. Sh. Ahuja has further submitted, in his written submissions, that the Hon'ble Supreme Court has already, held that the dispute regarding the identity of the land (sic.), (mistyped as law), should not be ground for granting injunction. Moreover, the Ld. Trial Court had further erred by not applying the settled proposition of law, while passing the impugned judgment, wherein it has been settled that a permanent injunction can only be granted, if it, is proved by a plaintiff (sic.) that there was some overt act or threat of any kind or any commission of any act, contrary to the plaintiff's (sic.) right on the part of the defendant to illegally or forcibly, dispossess him and in the present case, the present appellant/the then defendant had never threatened the plaintiff and no evidence in that regard was ever adduced by the then plaintiffs, thus, suit was even bad for not disclosing a cause of action, inasmuch as no cause of action had ever arose in favour of the then plaintiffs and against the then defendant for filing of the suit, under appeal, therefore, no injunction order ought to have been passed and hence, the impugned judgment and decree are liable to be set aside.
11. On the other hand, Ld. Counsel for the present RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.12 of 32 respondents/the then plaintiffs, in his written submissions has stoutly, reiterated the case of then plaintiffs, as pleaded before the Ld. Trial Court and has forcefully, refuted the submissions made by Sh. Ahuja and it is contended that the impugned judgment bears no material irregularity or infirmity or any illegality or perversity, whatsoever and has been passed in accordance with the established legal principles, while duly appreciating the facts and evidence brought on its record in the suit, in the right perspectives and as such the same is liable to be confirmed and upheld, accordingly, the dismissal of the present appeal is prayed for with costs.
12. I have scanned all the relevant documents, placed on the record of the Ld. Court below, bit by bit and also gone through the entire pleading/(s), made in the suit as well as present appeal and it appears that in the initial suit filed, the then plaintiffs claimed themselves to be the coowners in possession of the land, bearing Khasra no. 552/440, (46), situated in the Revenue Estate of Village Kondli, Tehsil Preet Vihar, New Delhi,(referred to suit property), praying for the relief of permanent injunction against Delhi Development Authority,(DDA). It was also, alleged by the then plaintiffs that the suit property initially, belonged to their father and subsequently, on their demise the property devolved upon them by way of succession. The then plaintiffs no. 1 to 4 claim that they are the co owners to the extent of one half share and 5 to 7, of the other remaining half. It, was further, alleged that the officials of the defendant were visiting the suit property and threatening the then plaintiffs to dispossess them from the suit RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.13 of 32 property without serving any show cause notice and without due process of law. The then plaintiffs further state that the land in question has been in their actual physical possession and that the same has never been Notified under Sections 4 and 6 of the Land Acquisition Act.
The then defendant had opposed the prayer of the then plaintiffs by filing its written statement, wherein, it denied all the allegations, made by the then plaintiffs in their plaint. It is the stand of the then defendant that the suit property does not fall in Khasra No. 552/440 (46), as had already been acquired, vide award no. 66/8384. The then defendant asserts that the possession of the suit property had already, been taken over by it from the Land Acquisition Collector, (LAC), on 16.09.91 and the same has already, vested with it under Section 22 (1), of The DDA Act, 1957, vide Notification, No. F.9 (18)/ 92/LNB/LA, dated 25.01.1995.
The then defendant had contended that the Khasra No. 441 comprises of 9 Bighas and 6 Biswas of land and the same was divided, vide mutation no. 169 and new Khasra Nos. i.e. 551/441(501) and 552/441 (46), were alloted. It was also, submitted that at the time of preparation of the Jamabandi for the year 194647, the Khasra No. 552/441(46), has been wrongly, shown as 552/442(46) and while preparing Jamabandi for the year 196475 the same Khasara has been written as 552/440, (46), whereas, the fact is that the Khasara Number is 552/441 (46). The then defendant further stated that the correction/rectification in that RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.14 of 32 regard has already, been made by the LAC, in the revenue record and an intimation in this regard had already, been given to the the Tehsildar, concerned, vide letter, dated 13.05.83. The said letter has also been placed on record as Annuexure 'B'. The then defendant had further contended that the then plaintiffs were well aware of the said correction, as they had been duly, awarded compensation at the time of the acquisition of Khasra No. 552/441. The Kabza Karwai/possession report has also been placed on record as Annexure 'C'.
The then plaintiffs had placed on record the Khatoni for the year 197576, wherein, the Khasra No. of the suit land has been mentioned as 552/440(46), and their predecessorininterest have been shown as the tenure holder/bhumidhar. On the other hand, the then defendant had placed on record the copies of the notifications under Sections 4 and 6 of the Land Acquisition Act as well as the award, dated 26.10.83. It had also placed on record the payment certificate issued by the Land Acquisition Collector, in respect to the Khasra no. 552/441 and 552/442. Besides this, the copy of the kabza Karyavahi/posseession proceedings in respect to the acquired land has further, been placed on record.
On perusal of the Award no. 66/8384, it is revealed that the then plaintiffs had filed their respective claims under the said Award, in respect to the land bearing nos. 552/440552/442. The Award is in respect to a land comprising under the khasra no. 511/213214 and 552/441442. Further, in the notification dated 25.01.95 the measurement of the acquired land comprising of RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.15 of 32 khasra no. 552/441442 has been shown as 4 bighas and 6 biswas and 7 bighas and 1 biswas, respectively.
The copy of the Aks sizra/Map of the village Kondli has also been placed on record. It demonstrates the khasra no. 440 in existence, as the khasra no. 441, 442 and 440 have been shown separately therein. In the khatoni for the year 198889, note with red ink has been placed at the entry no. 32 that the land comprising in khasra no. 552/440 and khasra no. 552/442 has already, been vested with the defendant under section 22(1) of the DDA Act. The then plaintiffs had pleaded that they had moved an application for the correction of the said entry and in pursuance of the said application, the entry stands corrected. A copy of the application submitted by then then plaintiff no. 6 with the office of the Deputy Commissioner, (East Delhi), has also been placed on record alongwith the order and the copy of the subsequent correction carried out.
In the subsequent correction placed on record, it has been categorically, mentioned in the red ink that the land comprising in khasra no. 552/440, measuring 4 bighas and 6 biswas, has not vested with the defendant Under Section 22(1) of the DDA Act. The possession of the then plaintiffs in respect to the suit property/land is not denied by the then defendant. It is also an admitted position that the plaintiffs are the LRs of Late Shri Liley and Indal.
13. In the above background and scenario of the suit filed and on the basis of the above noted pleadings and other materials RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.16 of 32 available on record, the Ld. Court below, vide its order dated 20.12.2010 framed the following issues, which read as under: "(1) Whether suit property falls in Khasra No. 552/440, Village Kondli, Delhi?(OPP) (2) Whether suit property falls in Khasra No. 552/441, Village Kondli, Delhi?(OPD) (3) Whether suit property was acquired by government and handed over to defendant? (OPD) (4) Whether plaintiffs have taken compensation in LAC Act in respect of suit property? (OPD) (5) Whether plaintiff is entitled for relief of permanent injunction as prayed for? (OPP) (6) Relief."
It is apparent that the issues No. (1) and (2) have been famed in compendious and countervailing terms, and they go hand in hand for their desired adjudication to put a lid on the entire controversy, between the parties to the suit filed, whereas, issue No. (3) commensurates with one limb of the defence taken by the then defendant and issue No. (4) is quite in aid to that. Issue No. (5) is consequential and depends on the result of findings to be arrived at, on Issues No. (1) and (2) and accordingly the question of relief was to be decided by the Ld. Court below.
After a careful analysis of Sections 101 to 104 of the Indian Evidence Act, 1872 and keeping in view the claim of the then plaintiffs as pleaded, by them for their entitlement to the relief of Prohibitory Injunction, based on the Bhumidhari/tenure holders' RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.17 of 32 rights and defence of the then defendant, in the suit that the suit property/land does not fall in Khasra No. 552/440(46) and its actual Khasra Number is 552/441(46) and further the case of the then defendant that there is no Khasra No. 552/440(46), in the revenue record of Village Kondli, it becomes crystal clear that the Ld. Court below had rightly, placed the respective burden of proof of Issues No. (1) and (5) on the then plaintiffs and that of Issues No. (2), (3) and (4) on the then defendant, inasmuch as, they are the respective parties, desiring for the particular issue/(s), to be decided in their favour or against the other side/(s).
In order to establish their case, the then plaintiffs examined six witnesses and PW1, Sh. Dhyan Singh, is the then plaintiff No. 6, who while deposing, by way of his affidavit i.e. Ex. P1, had also relied upon documents, i.e. copies of Khatoni Paimash for the year 196465, (four pages), 197576, (two pages), 198485 & 198889 as Ex. PW1/A to Ex. PW1/D, copies of Khasra Girdawari for the year 199192, 199293, 199394, (Ex. No. not written on the copy itself), and 200910, as Ex. PW1/2A to Ex. PW1/2D, (wrongly numbered as Ex. PW1/C, though so stated in the affidavit Ex. P1), copies of field book along with its translated copy as Ex. PW1/3A and Ex.1/3B, Aks Shizra as Ex. PW1/4, copy of the application, dated 10.7.2007, as Mark'A', copy of order dated 28.1.2008, as Ex. PW1/6 and copy of payment certificate issued to then plaintiff no. 7, as Mark'B' and copies of complaints alongwith UPC slip and postal receipts as Ex. PW1/8A to Ex. PW1/8C.
RCA DJ No. 161/2017DDA V. Radhey DOD : 09.09.2020 Page No.18 of 32 PW2 is Sh. Saleem Ahmed, Patwari and he deposed that he had brought Khatoni for the year 198889, pertaining to Khasra No. 552/440, continuing till date and current Khatoni of Khasra No. 552/440 was already, exhibited on record as Ex. PW1/1D and the witness was not crossexamined by the then defendant and therefore, the Ld. Trial Court had rightly, relied on his unrebutted testimony for the effect of showing the revenue record pertaining to Khasra No. 552/440(46), Village Kondli, Delhi. PW3, Sh. Haridutt Kaushik, Kanungo, had also deposed that he had brought the Khatoni of Khasra No. 552/440, situated in Revenue Estate of Village Kondli, Delhi, pertaining to the years 19641965, 1975 1976 and 19841985. Further, Khasra Girdhawari of Khasra No. 552/440 for the years 19911992, 19921993 and 19931994. He had stated that Khatoni for the year 19751976 i.e. Ex. PW1/B(collectively), is the certified copy of the record, in which Khasra No. 552/440, (46), Village Kondli, was in the existence, wherein the names of Radhey, Shayam, Ghan Shyam, Ram Pal, Sons of Lilay and Gyanendra, Dharam Singh, Sons of Indal are mentioned and stood mutated in his record. The then defendant could not illicit any thing material, in the crossexamination of the witness to impeach his integrity or vitiating impact of his clear, cogent and trustworthy testimony, except that the witness had no knowledge about the official, preparing the documents brought by him or by whom they were signed and further that he had not seen the area where the suit property/land situated and also he did not verify the land, if the same had been acquired or not. Even, his RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.19 of 32 testimony was also rightly, relied on by the Ld. Court below for these reasons and it is on the basis of above taletelling document/
(s), which are even self explanatory, the Ld. Court below found the claim of the then plaintiffs established on record, inasmuch as, the certified copy of the Khatorni for the year 198889,( Ex. PW1/D), showing the then plaintiffs as owners of Khasra No. 552/440(46). The then plaintiffs had also relied upon documents filed on 4.12.2012 i.e. certified copy of Khasra Girdawari for the year 198782, (mistyped in the judgment of Ld. Court below as 1988
82), wherein, Khasra No. 552/440(46) had been shown in the possession of the then plaintiffs, showing them as cultivating Bajra, only, (However the judgment of the Ld. Trial Court makes a conjoint reading as "Bajra and wheat", in the place of Bajra only, which are in respect of Khasra No. 552/440 and 441 both). Certified copy of Khatoni for the year 197172 had also been placed on record, wherein, names of the then plaintiffs had been mutated after demise of Sh. Indal and Sh. Liley in respect of Khasra No. 552/440(46). The then plaintiffs had filed documents on 20.12.2010, in which, in certified copy of Khatoni for the year 197576, the ancestors of then plaintiff had been shown as tenure holder/bhumidhar in possession of the suit property/land in question. In certified copy of Khasra Girdawari for the year 2009 10, the name of the then plaintiffs had been shown against column "Tenure Holder" in respect of Khasra in question and column pertaining to 'use and occupation' had been mentioned as 'Abadi'. In certified copy of Khatoni for the year 1984, (Ex. PW1/C), the RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.20 of 32 names of the then plaintiffs and Khasra No. in question i.e. 552/440(46) had been mentioned. The plaintiffs had filed some more documents on 8.3.2007 i.e. certified copy of Khasra Girdawari for the year 199192 i.e. Ex. PW1/2A, certified copies of Khasra Girdawari for the year 199293 and 199394 Ex. PW1/2B (Two Pages,mistyped as Ex. PW1/2, in the impugned judgment on page no. 10, Line No. 15 after the words "and 1993 94" but the document itself bears the No. as Ex. PW1/2B), wherein plaintiffs had been shown in column pertaining to "Tenure Holders" in respect of Khasra in question and class of land had been mentioned as "Khali" "Khali" and "Char Diwari", respectively. The plaintiffs had also placed on record certified copy of order dated 28.1.2008,(Ex. PW1/6) of Sh. P.K. Jayant, Tehsildar, Preet Vihar, Delhi, wherein, it was mentioned that Khasra No. 552/440 had not been notified under Section 4 and 6 of the Land Acquisition Act and the same had not been acquired and it further mentioned that note regarding Section 22(1) of Land Acquisition Act (wrongly described in place of DDA Act, 1857), mentioned in Khatoni for the year 198889, in reference of Khasra No. in question, seems to be inadvertent error and Halqa Patwari was directed to make necessary correction in the Revenue record as per application of the then plaintiff. The then plaintiffs had also placed on record copy of application, (Mark'A'), addressed to office of Deputy Commissioner, East for correction in revenue entry. The then plaintiffs had also placed on record certified copy of Khatoni for the year 198889, (Ex. PW1/1D), by which RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.21 of 32 endoresement was made that in view of order of Tehsildar, Preet Vihar, dated 28.1.2008, the said note of under Section 22(1) would not be applicable. The order of Tehsildar, Sh. P.K. Jayant, dated 28.1.2008 was Ex. PW1/6. The thenplaintiffs had also relied upon Khatoni for the year 196465, [Ex. PW1/A, (colly.)], wherein the names of ancestors of the plaintiffs had been shown as tenure holders/bhumidhar against Khasra No. 552/440(46). The then plaintiffs had also relied upon the Aks Shizra of Village Kondali Ex. PW1/4 and copy of the field book, Ex. PW1/3B, in which Khasras No. 440, 441 and 442, at Village Kondli had been shown.
This is the quantum of clear, cogent, positive, materials and trustworthy evidence, brought on record, by the then plaintiffs to establish their claims, as made in the suit and while taking into account this reliable evidence for the consideration of the fact, as to whether the then plaintiffs were able to bring home the issue, the Ld. Court below had rightly, dispelled the objection taken by the Ld. Counsel for the then defendant, as noted in, paragraph No. 14 of the impugned judgment that the order dated 28.01.2008, i.e. Ex. PW1/1D, was beyond pleadings, therefore, could not be read in the matter, inasmuch as, sufficient pleadings were already there to lead the evidence of this material, obtained by the then plaintiffs only after filing of the suit on 25.05.2006 and infact, much later somewhere, in the year 2008. This puts a naught to the entire defence, taken by the then defendant that the suit property/land was acquired and even compensation was also paid to the then plaintiffs in the matter.
RCA DJ No. 161/2017DDA V. Radhey DOD : 09.09.2020 Page No.22 of 32 The further objection of Sh. Ahuja, taken on the basis of field books, enclosed, at pages 1718, of the reply filed to the memorandum of appeal, also does not hold much water, especially, when the present respondents reiterate their claim and refute the contention/objection, by submitting that the above pages of the field book are in relation to the different Khasras and not in relation to the Khasra No. 552/440 (46), and they can not be further compelled to explain as to how the land of only 9 biswas remains in Khasara No. 552/440 (46), after split of the Khasara No. 552/440 in two parts i.e. 537/440(110), as well as 538/440(3
12), from the area of (511), appearing of, 440 at page No. 17, at serial No. 1 of the field book and no prejudice can be attached to them, on this account by taking them to be valid admission/(s), on the part of the present respondents, similar, is the case with non mentioning of the receipt of compensation by them in respect of Khasara No. 552/441, as that was never necessary and relevant to their claim in respect of Khasara No. 552/440 (46), as put forward in the suit filed by them and it is in this backdrop that the claim for declaration was not required to be made by them, as the then plaintiffs made their claim on the basis of being tenure holders/bhumidhar, in respect of the suit property/land, comprising in Khasra No. 552/440(46). This effectively, had proved the Issue No. (1) in favour of the then plaintiffs and also answered the Issues No. (3) and (4), inasmuch as the then defendant claimed that the suit property/land was acquired by the LAC and its possession was handed over to them and even the then plaintiffs also accepted RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.23 of 32 compensation under the LA Act, in respect of the suit property/land and in this context, I am of the considered view that the Ld. Court below was right and justified in distinguishing the decision cited before it, on facts of the present case. Further, the decision, relied on by Sh. Ahuja, in the case of Anathula Sudhakar V. P.Buchi Reddy, by LRs and Anr., (2008, 4SCC
594), in true effects, in my respectful submission, goes against the present appellant and it is clear that no declaration was required to be claimed and the suit filed before the Ld. Court below for Permanent Injunction, Simplicitor, mainly, on the bases of the ground of Possession and tenure holding/bhumidhari rights on succession and the same being shown, on the basis of the above foregoing documentary evidence lead was competent and the evidence, led on ,by the then plaintiffs was consistent with their plea of possession and ownership as tenure holders/bhumidhar.
The defence of the then defendant is that suit land does not fall in Khasra No. 552/440(46), and its actual Khasra No. being 552/441(46), is solely put forward on the basis of lone testimony of DW1, Sh. Jagpal Singh,(LM, East Zone, DDA), by way of his affidavit Ex. DW1/A and reliance upon documents Ex. DW1/1 i.e. Award dated 26.10.83, (Colly.); Ex. DW1/2, i.e. notification under Section 22(1), dated 25.01.1995; Ex. DW1/3, i.e. letter, dated 13.05.1983 to the Tehsildar, from LAC; and Kabja Karwai of Award, dated 16.10.1983, Ex. DW1/4 also described as Mark 'A' to Mark 'D'. Perusal of Award dated 26.10.1983 i.e. Mark 'A' shows that the same nowhere mentions about Khasra No. RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.24 of 32 552/440(46). I have also perused the endorsement under the heading "claims for compensation" in the lower part of the above said document, where it mentions 552/440442 (117), but perusal of the said document would show that the said Khasra No. is not mentioned in the measurement of the respective Khasra Nos., as shown in the above said document. In notification dated 25.1.1995 under Section 22 (1), of DDA Act, there is no mention of Khasra No. 552/440. However, there is mention of Khasra NO. 552/441,
442. I have also perused Mark'C', later on, becoming Ex. DW1/P1 and the entire testimony of the DW1 revolves around and put forward on the strength of the above letter, which on the face of it , is clearly not tenable, inasmuch as, it does not explain as to how the area of undivided Khasra No. 552/441(96), becomes different and adds up to (97), as claimed by the DW that vide Mutation No. 169, the allotted new Khasra Numbers 551/441(51) and 552/441(46) came into existence, but how their areas become excessive, by one biswa, i.e. (57), though, it should have added upto only (56), as division of the one khasra in two parts can never go to change the area/(s), of the new Khasras, unless some other land is brought into it. In such circumstances, it remains unexplained as to why the area of khasra no. 441 has been changed from 9 bighas 6 biswas to 9 bighas 7 biswas. Keeping in view the said difference, the deposition of the DW1, that the khasra no. 441/ (96), was divided into two parts falls flat, as the measurement of the divided parts does not correspond with the measurement of the said khasra no. prior to the mutation, as pleaded by the then RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.25 of 32 defendant.
This further belies the claim/(s), of the then defendant that the khasra no. 440 is not in existence. In the light of said entry and further keeping in view, the contents of the notification placed on record it is clear that the land comprised in khasra no. 552/440 has neither been divided in two parts, nor it stood acquired by the LAC, as being deposed by the DW1. Even, the testimony of this DW is further mired with his dogging replies, made in his cross examination, carried out on 19.03.2016, scattered at different places. Further, the DW was unable to say as to whether there was any correction carried out in the record of LAC or Tehsildar, Delhi and also he had 'no' (sic.), (missing), personal knowledge with regards to the contents of Ex. DW1/P1, as he further states that he got this knowledge from LAC record, i.e. Ex. DW1/P1 only. He further accepted what he had deposed in his affidavit, to the effect that Khasra No. 441 was subdivided was only on the basis of Ex. DW1/P1 and he did not check any other record. The witness has, however, volunteered to say that this letter was from LAC. He has further stated that records pertaining to lands are maintained by the concerned SDM and not LAC. In the crossexamination, carried out on 02.09.2016, the DW1 accepted that he had not seen mutation No. 169, but was having knowledge about the division of Khasra No. 441(96), vide Ex. DW1/P1. The DW1, on confronted with the purported Mutation No. 169 and its translation in Hindi, by the Ld. Counsel for the then plaintiffs, had replied that he does not understand 'Urdu' and cannot say anything in respect of the RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.26 of 32 above said document, nor was able to say whether Mark 'F' is translation of Mark 'E', which is the document in 'Urdu'. He has further accepted that no document was placed on record of the Ld. Court below to show correction of Khasra No. 552/440, on the basis of Ex. DW1/P1. He was further unable to say whether the plaintiffs were in possession of Khasra No. 552/440 and volunteered to say that his Khasra No. is 552/441, though he has again, accepted that Khasras No. 552/440 and 552/441 are adjacent to each other and has further volunteered to say that in the Aks sizra i.e. Ex. PW1/4, it is mentioned as 440 and 441 and not 552/440 and 552/441. He has further stated that in this Khasra No. 552 means partition number and 440 is the main number. He has also deposed that Khasra No. 552/440 no where exists on records, but 440 is there in the Akssizra as Khasra Number. The DW1 had also denied a suggestion that he was deposing falsely.
Sh. Ahuja has contended that mere acceptance that the Khara No. 440 is mentioned or appears in the Akssizra i.e. Ex. PW1/4 would not go to establish that infact, Khasra No. 552/440 existed and the Ld. Court below was not right to base its conclusion on mere this acceptance, inasmuch as, the DW1, in the same breath states that Khasra No. 440 and Khasra No. 442 is also mentioned in the Akssizra. However, this contention does not hold much water, inasmuch as, the DW1, is clearly, a partisan witness and his entire testimony is based upon the contents of letter dated 13.05.1983, as discussed earlier, the allegations of the then defendant that the said khasra no. does not exist or it was RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.27 of 32 acquired by the LAC have been negated by the material , positive and independent evidence, led on by the then plaintiffs, i.e. Ex. PW1/6 and Ex. PW1/1D, placed on the record of the Ld. Court below. Further, viewed in this context, the entire testimony of the DW1 is not helpful to the case of the then defendant, anyway. Moreover, it also replies to the contention, made by the Ld. Counsel for the present appellant that as per the recognized revenue practices, adopted by the revenue official; that when a Khasra Number of the Village is broken/divided, then a unique number is allotted to the said broken/divided Khasra, in chronological order, for this does not explain as to why the original Khasra No. 552/440(96), when broken, was not allotted the unique new numbers 553/440 and 554/440 as illustrated by him in the written submissions made by him in the present appeal.
This also brings us to conclude that the then defendant had not been able to prove the issue No. (2) in its favour, which was rightly, so concluded by the Ld. Court below.
The next contention put forward by Sh. Ahuja is that in any case, the Ld. Court was not right to grant the relief of Permanent Injunction to the then plaintiffs, moreso, against the DDA, the true owner and for this he has relied on the following extract from the decision of Premji Ratanasey V. Union of India, 1994, SCC, 5, reading as under: "4. ....Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.28 of 32 of the owner or person in lawful possession It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.
5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the court below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner."
On the strength of this authority of the Hon'ble Supreme Court of India, Sh. Ahuja has tried to contend that no injunction can be granted against the true owner/DDA. However, this submission has no merit, inasumuch, as it is crystal clear and conclusive till date that the suit property/land, comprised in Khasra No. 552/440(46), was not acquired, as proved by Ex. PW1/6 as well as Ex. PW1/1D and the further fact that the present appellant has not brought any other order, upsetting the order of RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.29 of 32 the Tehsildar ,Sh. P.K. Jayant or upsetting the entry/note mentioned in Ex. PW/1D, therefore, in my respectful submission the decision is of no avail to him.
Sh. Ahuja has further contended that the then defendant/officials never extended any threat to the then plaintiffs and as such there was no cause of action, ever arising in favour of the then defendants, however, even this submission does not cut any ice, inasumuch, as in its Written Statement, the then defendant did not make a specific denial of the corresponding/related averments of the then plaintiffs, as made in para No. 7 of their plaint, nor PW1 was crossexamined by the then defendant in relation to the allegations, as threat (s), made in that para and as such even this submission of Sh. Ahuja is bereft of any merit.
Lastly, Sh. Ajuja has earnestly, submitted that the Ld. Court below was not right and justified in granting relief to the then plaintiffs without any demarcation report/proceedings. However, the then plaintiffs had established their claim by leading positive documentary evidence and also they were the masters of their suit filed and therefore, entitled to lead evidence as deemed fit by them to prove the issues, burden whereof, was placed upon them, accordingly, if they did not feel any requirement for requesting a demarcation of the suit property/land, then it was more so, for the then defendant to pray for demarcation, which was even in their domain and reach on the strength of issue Nos. (1) & (2) as framed, demarcation, if deemed fit, could have had been ordered by the Ld. Court below and in any case, even if, for the RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.30 of 32 sake of arguments, it is found advisable by this Court, yet, it was no body's case, before the Ld. Court below, as despite the burden of proof of issue no. 2, being placed on the then defendant, it did not make any whisper for carrying out demarcation in the matter, at any stage of the suit or even after completion of the plaintiffs evidence on 31.03.2015 and affidavit of DW1, beingfiled only on 27.08.2015, before the Ld. Court below and despite empowered under the provisions of Order 41, Rules 32 and 33, CPC., it cannot be ordered at this stage, by this court as the concerned area has, now, become densely, built up and further there are serious constraints, on the exercise of this powers by the Court, acting as Appellate Court, as per provisions of Order 41, Rule 27, CPC., as the same would partake the character of an additional evidence, being produced in the Appellate Court, which is without any tangible justification, as not covered under the Specific Provisions of the Rule, moreover, the then plaintiffs have been able to prove their case before the Ld. Court below, by leading sufficient, clear, cogent, positive, material and trustworthy documentary evidence to establish their claim before the Ld. Trial Court , which has passed a well reasoned and logical judgment in the matter, not requiring any interference whatsoever, by this Court, inasmuch as, no infirmity or material irregularity or any illegality or perversity, whatsoever, has been pointed out in the impugned judgment, which has been passed in accordance with the established legal principles, applicable to the facts and circumstances of the case before it, while duly appreciating the facts and evidence brought RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.31 of 32 on its record, in the right perspectives and as such the same is liable to be confirmed and upheld and present appeal is liable to be dismissed.
In view of the above discussion, I am of the view that there is no illegality, infirmity, material irregularity or perversity in the findings of ld. Trial Court, which require any interference by this Court. Accordingly, the impugned judgment and decree dated 21.01.2017, are, hereby, confirmed and stand upheld. The appeal being meritless, stands dismissed. Decree sheet be prepared accordingly. Parties are left to bear their own costs. TCR be sent back alongwith a copy of this judgment. File be consigned to the record room.
Announced in the open SANATAN Digitally signed by SANATAN PRASAD Location: Karkardooma Courts, Delhi PRASAD Date: 2020.09.09 15:57:59 +0530 Court on 09.09.2020 (Sanatan Prasad) Additional District Judge01 (East)/KKD/Delhi /09.09.2020 RCA DJ No. 161/2017 DDA V. Radhey DOD : 09.09.2020 Page No.32 of 32