Delhi District Court
Sh. Radhey Shyam vs Municipal Corporation Of Delhi on 4 August, 2011
IN THE COURT OF SH. ANIL KUMAR SISODIA, SENIOR CIVIL
JUDGECUMRENT CONTROLLER (NORTH EAST DISTRICT) :
KARKARDOOMA COURTS: DELHI.
CIVIL SUIT NO. 18 OF 2005
(UNIQUE CASE I.D. NO.02402C032502005)
SH. RADHEY SHYAM
S/o Sh. Sohan Lal
R/o 236, Patparganj
Delhi110092. ............ PLAINTIFF
Versus
1. MUNICIPAL CORPORATION OF DELHI
Office of the Executive Engineer
(CSE) SHD(S), Shalimar Park,
Shahdara, Delhi110032.
2. DELHI DEVELOPMENT AUTHORITY
Through its Vice Chairman
Vikas Sadan, INA, New Delhi. ........... DEFENDANTS
Date of institution : 09.01.2005
Order reserved on : 01.08.2011
Date of Decision : 04.08.2011
SUIT FOR DECLARATION, PERMANENT &
MANDATORY INJUNCTIONS
Suit No.18/09 Page : 1/16
J U D G M E N T :
1. The plaintiff has filed the present suit for declaration, permanent and mandatory injunction against the defendants and for restraining the defendants from interfering in any manner or from forcibly dispossessing the plaintiff from the suit property. Initially, the suit was filed by the plaintiff for permanent and mandatory injunctions but the same was amended and relief of declaration was included and DDA was impleaded as defendant no.2.
2. The facts of the case are that the plaintiff is the owner and in possession of the plot measuring 200 sq. yards out of Khasra no.229 situated in Abadi of Vill. Patpartganj, Harijan Basti, Shahdara, Delhi110092 (hereinafter referred to as suit property) as shown in red colour in the site plan attached with the plaint. It has been stated that the plaintiff purchased the suit property for valuable consideration from Sh. Kishan Chand on 5.10.1990 and sale documents were executed in his favour. The plaintiff constructed one room and boundary wall in the plot and used the property as godown for keeping his goods. On 4.5.1993, the plaintiff also filed a suit for permanent injunction against Sh. Jagdish, Sh. Moti Lal and SHO Vinod Kumar, PS Trilok Pur which Suit No.18/09 Page : 2/16 was compromised on 6.5.2002 with the plaintiff and plaintiff was declared the owner of the suit property. On 5.1.2005, the plaintiff had gone out of station for few days and after his return to Delhi in the evening of 15.1.2005, he found that the room and entire boundary wall of the suit property have been demolished. On 16.1.2005, in the morning some labour, masons of the contractor M/s. Anshul Construction & Co. and defendant no.1 corporation came to the suit property and started constructing illegal and unauthorized construction. On inquiry, the contractor told the plaintiff that a work has been given to them by defendant no.1. The plaintiff had shown the complete set of documents regarding the earlier suit as well as other documents to the said contractor of defendant no.1 but the contractor was adamant to carry illegal construction. It has been submitted that defendant no.1 has no right, title or concern in the suit property and the plaintiff is the absolute owner and in possession of the suit property. Defendant no.1 with the help of police protection were constructing the Dhalaon on the suit property without any show cause or intimation to the plaintiff. The plaintiff was unable to restrain the defendant no.1 as well as his contractor. Finding no other alternative, the Suit No.18/09 Page : 3/16 plaintiff has filed the present suit.
3. Summons of the suit were served on the defendants. Defendant no.1 MCD has contested the suit by filing the written statement raising preliminary objections that the plaintiff has not come to the court with clean hands and has concealed the material facts; the plaintiff is having no right, title or interest in the suit property and the plaintiff is not in possession of the suit property. It has been submitted that defendant no.2 was the owner and in possession of the suit property and the suit property was handed over to defendant no.1 by defendant no.2 for the purpose of construction of Dhalaon as per instruction of Hon'ble High Court of Delhi in civil writ petition no.6160/2003. After taking possession of suit land, defendant no.1 constructed the Dhalaon and there is no legal and valid cause of action against defendant no.1. Suit is also bad for want of notice U/s 477/478 DMC Act and the relief of declaration is bared under the provisions of Order 2 Rule 2 CPC.
On merits, the contents of the plaint have been denied and it has been stated that the sit plan filed by the plaintiff is not according to the actual site. Defendant no.2 was the owner of the suit land which was handed over to defendant no.1 as per the orders of Suit No.18/09 Page : 4/16 Hon'ble High Court and defendant no.1 has constructed Dhalaon. All other allegations made in the plaint have been denied and a prayer has been made for dismissal of the suit with costs.
4. Defendant no.2 DDA has also contested the suit by filing a separate WS raising preliminary objections that the suit is bad for want of notice U/s 53 of DD Act, 1957; the suit has not been properly valued for the court fees and jurisdiction. The plaintiff has no legal right as he is not in possession of the land in question and the suit land belongs to DDA and falls in Khasra no.479/231,250, 432 to 434,436, min of Vill Gharonda, Neem ka Banger stands acquired vide Award no.6/C/7172 Supp. The physical possession of the suit land has been handedover to the MCD defendant no.1. The suit land does not fall in khasra no.229 and even khasra no.229 min. of Vill Gharonda, Neem Ka Banger was acquired vide Award no. 6/C/7172 Supp. The plaintiff has not filed any document of suit land.
On merits, the contents of the plaint have been denied and a prayer has been made for dismissal of the suit.
5. On 5.5.2006, Ld. Predecessor of this court framed the following issues :
Suit No.18/09 Page : 5/16
1) Whether the suit of the plaintiff is not maintainable in the present form? OPD
2) Whether the plaintiff is entitled for the relief of declaration as prayed for? OPP
3) Whether the plaintiff is entitled for the relief of permanent and mandatory injunctions as prayed for? OPP
4) Relief.
6. Thereafter the parties were directed to lead their evidence. In support of his case, the plaintiff has examined himself as PW1 and filed his examination in chief by way of affidavit Ex.PW1/A. PW1 has also proved on record the site plan of the suit property as Ex.PW1/1; GPA as Ex.PW1/2; agreement to sell as Ex.PW1/3; acknowledgment receipt as Ex.PW1/5; Khasra Girdawari as Ex.PW1/6; certified copy of the statements recorded in Suit no.828/01 as Ex.PW1/7; certified copy of compromise application as Ex.PW1/8 and certified copy of compromise deed as Ex.PW1/9; photographs as Mark A to E and the letter issued in favour of M/s. Anshul Contractor as Mark F. No other witness was examined by the plaintiff despite opportunity being given and Suit No.18/09 Page : 6/16 vide order dated 29.5.2009, PE was closed.
7. Defendant no.1 on the other hand has examined D1W1 Sh. Mula Singh, Executive Engineer MIV, Shahdara (South Zone), MCD who tendered his examination in chief by way of affidavit Ex.D1W1/A. He also proved on record the copy of possession plan as Ex.D1W1/1; copy of orders passed by Hon'ble High Court in Writ Petition as Ex.D1W1/2; work order as Ex.D1W1/3 and the photographs of Dhalaon as Mark A and closed its evidence.
8. Defendant no.2 DDA examined DW2 Sh. Daya Ram Dubey, Patwari, LAC (East) who proved on record the copy of Award no.6C/7172 as Ex.DW2/1. DW3 Sh. Ved Prakash, Grade II, L&B Department, Vikas Bhawan has proved the attested copy of notification issued by Dy. Secretary L&B, Govt. of NCT of Delhi dated 24/31.7.1978 as Ex.DW3/A. DW4 Sh. Sunil Kumar (wrongly examined in chief as DW3) proved the copy of original possession report as Ex.DW3/1. DW5 Sh. S.N. Tripathi, Kanoongo, Land Management, East Zone, Vikas Kutir, DDA who tendered his examination in chief by way of affidavit Ex.DW5/A and proved on record the copy of possession report as Ex.DW5/1, Suit No.18/09 Page : 7/16 site plan as Ex.DW5/2, order of court dated 14.7.2004 as Ex.DW 5/3, allotment letter as Ex.DW5/4, letter dated 14.5.2004 as Ex.DW5/5 and possession plan as Ex.DW5/6. Thereafter, DE was closed vide order dated 6.5.2011.
9. I have heard Ld. Counsel for the defendants no.1 and 2 and have perused the record carefully. Counsel for the plaintiff did not address any arguments despite sufficient opportunities being given. On 20.7.2011, Proxy Counsel for the plaintiff had appeared and submitted that plaintiff filed written arguments but no written arguments were also submitted by the plaintiff. Hence, the case is disposed off on the basis of material available on record and arguments advanced by Counsels for the defendants.
My findings on the issues are as under : ISSUE NO.1 :
10.The onus of proving this issue was on the defendants. Defendants have proved on record the copy of Award as Ex.DW2/1 i.e. Award no.6C/7172 (Supp.) which establishes that the land of village Gharonda, Neem Ka Banger was acquired by the government in the year 197172 and it included land falling in Khasra no.228, 229, 479, 231250, 432134 and 436. Defendant no.2 has also Suit No.18/09 Page : 8/16 placed on record the allotment letter Ex.DW5/4 vide which the suit land was allotted to defendant no.1 for construction of Dhalaon. The letter Ex.DW5/5 shows that defendant no.2 had requested defendant no.1 to depute some official to take physical possession of the suit land and the possession plan Ex.DW5/6 shows the exact location of suit land.
11. Defendant no.1 has also examined D1W1 Sh. Mula Singh who has proved on record the orders passed by Hon'ble High Court in writ petition 6160/2003 as Ex.D1W1/2 pursuant to which defendant no.2 had handed over the suit land to defendant no.1 for construction of Dhalaon. D1W1 has also proved the possession plan as Ex.D1W1/1. In his cross examination, D1W1 has admitted that Dhalaon was constructed as per the orders of Hon'ble High Court. He also admitted that khasra no.229 is not mentioned in the possession plan Ex.D1W1/1.
12.The plaintiff has filed the present suit claiming himself to be the owner of property measuring 200 sq. yards out of Khasra no.229 situated in Abadi of Vill. Patpartganj, Harijan Basti, Shahdara, Delhi110092. The plaintiff has placed on record his sale documents as Ex.PW1/2, PW1/3 and PW1/5 i.e. GPA, Suit No.18/09 Page : 9/16 Agreement for sell and receipt. All these documents have been executed on 5.10.1990 whereas defendant no.2 has proved on record the Award Ex.DW2/1 vide which land measuring 2 Bigha 2 Biswa in Khasra No.229 was acquired by the government way back in 197172. The said Award has not been challenged till date and thus has attained finality. The claim of the plaintiff that he has become owner by virtue of documents Ex.PW1/2, PW1/3 and PW1/5 does not stand ground in view of the fact that the land falling in khasra no.229 had already been acquired by the government and any sale purchase made by the individuals subsequent to the acquisition of plan is illegal and invalid. It is not the case of the plaintiff that the land owned by him has not been acquired by the government. Perusal of cross examination of PW 1 will show that plaintiff has admitted that he has not placed on record any demarcation report qua the suit property before the court. He is also not aware of the total area of land falling in khasra no.229 and he could not admit or deny if the total area of khasra no.229, Vill. Gharonda, Neem Ka Banger was 2 Bigha 2 Biswa. Even otherwise, the documents relied upon by the plaintiff for claiming his title do not confer any title on the plaintiff. These Suit No.18/09 Page : 10/16 documents are neither registered nor they have been properly stamped in accordance with law.
13.In G. Ram Vs. DDA reported in AIR 2003 Delhi 120, Hon'ble Delhi High Court has held that :
"An agreement of sale is not a document of transfer nor by reason of execution of a power of attorney, the right, title or interest of an immovable property can be transferred. Such a transfer can only be effected by executing a registered documents as provided for under Section 54 of T.P. Act read with section 17 of Indian Registration Act."
14. Similarly, in M.L. Aggarwal Vs. Oriental Bank of Commerce, 128 (2006) Delhi Law Times 407 (DB), it was held that :
"In our opinion, there is no merit in this petition. The petitioner had only produced an Agreement to Sell, Will and a Power of attorney and a receipt for payment of money but these, in our opinion, do not constitute a sale. Under Section 17(1)(b) of the Registration Act, sale of an immovable property can only be by a registered deed.
...... In our opinion, the petition has no right, title or interest in the property as he has not purchased it by any registered Sale Deed. An immovable property cannot be purchased by a mere Power of Attorney or Agreement to Sell".
15.In Hon'ble Supreme Court in Suraj Lamp & Industries (P) Ltd.
Suit No.18/09 Page : 11/16 Vs. State of Haryana & Anr., AIR 2009 SC 3077 showed its concern regarding extension of concept of "Power of Attorney sales by execution of SPA, GPA, Will with reference of free hold properties. After referring to the provision of Registration Act, it was held that any process which interferes with regular transfers under deeds of conveyance properly stamped, registered and recorded in the registers of the Registration Department, is to be discouraged and deprecated. The Court should not go to their assistance, as that would amount to perpetuating illegalities.
16.Thus, in view of the law laid down by Hon'ble High Court of Delhi and Hon'ble Apex Court, I am of the considered opinion that the plaintiff has failed to show his ownership in the suit property. In the absence of the plaintiff showing any right, title or interest in the suit property, the suit filed by the plaintiff seeking the relief of declaration and injunction against the defendants is not maintainable in its present form. Defendants have proved that the allotment was made by defendant no.2 in favour of defendant no.1 pursuant to the order no.6160/2003. Ex.D1W1/2. The plaintiff has also failed to establish that the Dhalaon constructed by MCD has been constructed on the land owned by him whereas, defendants Suit No.18/09 Page : 12/16 have proved on record that the land on which Dhalaon has been constructed was already acquired by the government and defendant no.2 was in possession of the same. Thus, in view of the aforesaid discussion, I am of the considered opinion that the suit filed by the plaintiff is not maintainable in the present form as he is neither owner nor in possession of the same. The issue is accordingly decided in favour of the defendants and against the plaintiff. ISSUES NO.2 & 3 :
17. These issues are taken up together as they require common discussion. The onus of proving these issues was on the plaintiff. The plaintiff prayed for the relief of permanent injunction for restraining the defendants from dispossessing him from the property measuring 200 sq. yards out of Khasra no.229 and also for the relief of mandatory injunction to direct the defendants to demolish the construction raised by them on the suit property.
18.As noted in the forgoing paragraphs, the documents filed by the plaintiff do not confer any ownership rights on the plaintiff regarding the property in khasra no.229 as the same had been acquired by the government much prior to the alleged purchase of Suit No.18/09 Page : 13/16 the plaintiff. Even otherwise, the plaintiff has failed to show his possession in the suit property. In his cross examination recorded on 14.9.2007, he admitted that there exists a Dhalaon of MCD on the suit property. He also admitted that he has no photographs to show his room and boundary wall in the suit property. Further in his cross examination dated 22.10.2007, he testified that he does not know English and as such, he cannot tell the contents of his affidavit. Although, he claimed that the suit land was demarcated by the Revenue Authorities on his request but he admitted that he has not filed any demarcation report before the Court. He also could not understand the site plan nor he could tell the dates when the documents Ex.PW1/2, PW1/3 and PW1/5 were prepared. In his cross examination dated 17.3.2008, the plaintiff admitted that he did not know that khasra no.479/231, 250, 432433 etc. was acquired and possession was handed over to DDA. He denied the suggestion that khasra no.229 was acquired and the possession was given to DDA. He volunteered that it was an unacquired land and whole of the village is situated in said khasra. However, he has not placed on record any documentary evidence to show that khasra no.229 was not acquired by the government.
Suit No.18/09 Page : 14/16
19.Plaintiff has not examined any other witness to prove that he was in possession of the suit land or that the suit land falls in khasra no.229 and not in 479/231 etc. DW5 Sh. S.N. Tripathi in his cross examination has specifically testified that khasra no.229 was acquired by DDA and he identified the khasra no.229 in the site plan Ex.DW5/2 in yellow colour. Perusal of the said site plan would show that khasra no.229 is a separate khasra and the Dhalaon does not fall in khasra no.229. Counsel for the defendant no.2 has also argued that the plaintiff has failed to show any right, title or interest in the suit property and he is not entitled to any injunction against true owner. Reliance has been placed on Premji Ratansey Shah & Ors. Vs. Union of India & Ors., (1994) 5 SCC 547 and Rajender Kakkar & Ors. Vs. DDA, 1994 (28) DRJ 133 (DB). In both these judgments, it was held that where the plaintiff has no title or authority and he is merely a trespasser or an unlawful occupant, injunction would not be issued against a true owner.
20.Thus, in view of the aforesaid discussion, I am of the considered opinion that the plaintiff has failed to discharge the onus cast on him. The issues are accordingly decided in favour of the Suit No.18/09 Page : 15/16 defendants and against the plaintiff.
ISSUE NO.4 :
21. Thus, in view of my findings on the aforesaid issues, I am of the considered opinion that the plaintiff has failed to establish his case and he is not entitled to any relief. Accordingly, the suit of the plaintiff is dismissed. No orders as to costs. Decree sheet be prepared accordingly.
File be consigned to record room.
Announced in the open Court Dated : 4th August, 2011 (ANIL KUMAR SISODIA)
Senior Civil JudgeCumRent Controller (NE) Karkardooma Courts, Delhi.
Suit No.18/09 Page : 16/16