Delhi District Court
Smt. Vineeta Yadav vs D.D.A on 9 December, 2014
In the Court of Dr. Rakesh Kumar: Additional District Judge (South
District) Saket Court Complex, New Delhi.
RCA No. 10/2014
Unique I.D. No. 02406C0121302014
In the matter of :
1. Smt. Vineeta Yadav
W/o Late N.R. Yadav
R/o 260K, Hauz Rani
Malviya Nagar, New Delhi
2. Sudhir Yadav
3. Ms. Santosh Yadav
4. Parveen Yadav
all R/o 268K,
Hauz Rani,
Malviya Nagar, New Delhi ....Appellants
Versus
1. D.D.A
Through its Vice Chairman
I.N.A, Vikas Sadan
New Delhi
2. Jagan
S/o Masudi
R/o 103, Village Segampur
New Delhi ....Respondents
Date of institution : 19.05.2013
Reserved for Judgment : 28.11.2014
Date of decision : 09.12.2014
RCA No.10/14 Page no. 1 / 13
Appeal against Judgment and Decree dated 15.03.2014 passed by
Sh. Sushant Changotra, Civil Judge (West), Tis Hazari Courts, Delhi
J U D G M E N T
1. This appeal under Section 96 and Order XLI Rule 1 of the Code of Civil Procedure, 1908 (in short 'the CPC') is directed against the judgment and decree dated 15.03.2014 passed by the Court of Sh. Sushant Changotra, Civil Judge (West), Tis Hazari Court Complex, Delhi in Suit no. 184 of 2014 whereby the suit for Declaration and permanent injunction instituted by the plaintiff against the defendant was dismissed.
2. Brief facts for the decision in the appeal are that appellants (plaintiffs in the trial court) are successors in interest of Sh. N.R. Yadav, who was the actual owner of the property bearing no. 268K, Hauz Rani, Malviya Nagar, New Delhi measuring 200 sq. yards having purchased the same from the respondent no. 2 (the Defendant no. 2 in trial court) vide GPA etc. dated 03.11.1980 and also received physical possession thereof; that indefeasible rights were created in favour of deceased N.R. Yadav and the plaintiff have become owners being his successors in interest; that deceased has not filed any suit for declaration regarding ownership of land in any manner; that the plaintiffs have remained in physical possession of the suit property and they should not be uprooted illegally; that the employees of the defendant no.1/ DDA on 11.06.2007 stated that they are only demolishing 100 sq. yards and the remaining 100 sq. yards shall be demolished in future; that a decree of declaration for RCA No.10/14 Page no. 2 / 13 declaring them to be the owners of 100 sq. yards of land of suit property and for restraining the defendant no.1 from carrying out demolition and from dispossessing the plaintiffs from the suit property may be passed.
3. The suit was contested by the defendants by filing separate written statements of their defence.
4. In the written statement filed on behalf of the defendant no. 1/ D.D.A, preliminary objections are taken to the effect that the suit is liable to be dismissed as it has not been properly valued for the purpose of courtfees and jurisdiction. In reply on merits, it is contended that the land comprised in Khasra no. 203/1, 203/2 and 203/3 has been acquired vide Award no. 1409 and the possession had been handed over to DDA by LAC/ L & B on 23.11.1962; that the land has been placed at the disposal of DDA vide notification no. F8 (49)/63/ L & H(ii) dated 03.01.1968; that the land measuring 72 Bighas 10 Biswas of Village Begampur was notified for acquisition under Section 4 pf Land Acquisition Act vide Notification dated 15.12.1961 issued by Chief Commissioner, Delhi; that the land has been transferred for BadarpurMehrauli residential scheme on 27.04.1968; that the defendant also pleaded that this court does not have jurisdiction as the land has been acquired and it vests in government, which cannot be challenged before this court that the averments of the plaint are denied on behalf of the defendant no. 1/DDA; that the plaintiffs do not have any right, title or interest in RCA No.10/14 Page no. 3 / 13 the suit property and suit has been filed with the intention to grab the vacant government land. It is contended that the plaintiffs are merely encroacher of government land and thus prayed that the suit may be dismissed.
5. The defendant no. 2 filed his written statement and took preliminary objections that present suit is an abuse of process of law; that the suit is barred by Section 41 (h), (i) & (j) of Specific Relief Act; that no cause of action arose in favour of plaintiffs; that the suit has not been properly valued; that the plaintiffs have not come to the court with clean hands.
6. In reply on merits, it is contended by the defendant no. 2 that the legal heirs of late Sh. Mussadi Khan are the owners in possession of suit property; that Sh. N.R. Yadav was not the owner of suit property; that the alleged GPA etc. are forged and fabricated documents. Defendant no. 2 also denied the remaining averments of the plaint and prayed that suit may be dismissed.
7. The plaintiff filed replication to the written statements wherein the contentions of the written statement were traversed and the averments of the plaint were reaffirmed.
8. From the pleadings of the parties, following issues were framed by learned Trial Court on 05.02.2008 for trial, namely: RCA No.10/14 Page no. 4 / 13 1 Whether the plaintiff is entitled for the decree of declaration as prayed in the plaint? OPP 2 Whether the plaintiff is entitled for the decree for permanent injunction as prayed ? OPP 3 Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD Whether this court has no jurisdiction to try the present 4 suit? OPD Whether the suit is not maintainable in the present form? 5 OPD 6 Relief.
9. After the matter being put on trial the plaintiffs got examined the plaintiff no. 1 Smt. Vinita Yadav.
10. The defendant no. 1 examined Sh. Om Prakash, Kanungo from DDA.
11. After recording of evidence and hearing counsel for the parties the trial court had pronounced judgment dated 15.03.2014, whereby the suit was dismissed.
12. I have heard Mr. Bharat Singh Sisodia, Advocate for the appellant and Ms. Promila Kapoor, Advocate for the respondent and have gone through the trial court record carefully.
13. Having drawn my attention on the impugned judgment and decree dated 15.03.2014 passed by the learned trial court and RCA No.10/14 Page no. 5 / 13 testimonies of the parties, it is submitted by the learned counsel for the appellant that the plaintiffs were owner of 200 sq. yards of the suit property out of which the D.D.A. had acquired only a portion of 100 sq. yards and remaining 100 sq. yards is owned and possessed by the plaintiffs.
14. Per contra, it is submitted by the learned counsel for the respondent no. 1 that the documents relied upon by the appellants do not confer any right, title or interest in respect of the suit property and entire property has been acquired and owned by the D.D.A. It is further submitted that even the defendant no. 2 from whom the plaintiffs are claiming to have purchased the suit property has contended that the documents relied upon by the plaintiffs are forged.
15. I have given my thoughtful consideration to the submissions made on behalf of the parties.
16. In the memorandum of appeal, the appellant has not assailed the findings of the learned Trial Court on issues no. 1 to 5. Therefore, in the light of the contentions raised by the parties before this court the only point for determination is, namely: Whether the judgment and decree passed by the learned Trial Court are liable to be reversed?
17. Facts alleged by the plaintiffs in the plaint are that husband of RCA No.10/14 Page no. 6 / 13 plaintiff no. 1 had purchased the suit property bearing no. 286K Hauz Rani, Malviya Nagar, New Delhi 110017 which falls within the Khasra No. 203 in the Revenue State of Village Begampur, New Delhi admeasuring 200 sq yards from the defendant no. 2 Shri Jagan and the documents executed between her husband and the defendant no. 2 are including General Power of Attorney (Ex.PW1/1) and Agreement to Sell (Ex. PW1/2), both dated 03.11.1980.
18. Contentions raised by the defendant in the written statement are that the land falling under Khasra no. 203/1 (119), 203/2 (015) and 203/3 (1115) has been acquired vide award no. 1409 and the physical possession of the same has been handed over to the defendant on 23.11.1962 by the LAC/L&B and the Award is Ex. DW1/1. It is also contended that the land measuring 72 bigha 10 biswa of Village Begumpur was notified for acquisition under section 4 of Land acquisition act one of 1894 vide notification no. F7 (26)/61 L&H dated the 15th December 1961 issued under the authority of the Chief Commissioner, Delhi. The acquired land has been transferred to the defendant for plan development of Delhi which possession has been handed over on 23.11.1962 and the acquired land has placed at the disposal of DDA by virtue of notification u/s 22 (i) of DD Act through file no. F8 (49)/63 L&H (ii) dated 03.01.1968, 23.11.62 and the Kabza Karwahi is exhibited as Ex.DW1/2. It is also contended that the aforesaid land has been transferred on 27.04.1968 for Badarpur Mehruali, Residential Scheme.
RCA No.10/14 Page no. 7 / 1319. The plaintiff' suit for declaration and permanent injunction against the defendant was dismissed vide judgment and decree dated 15.03.2014. Relevant portion of the judgment reads as under:
15. The plaintiff has proved a statement of Sh. Ranbir Singh, Patwari given in the other case as Ex. PW1/3. The perusal of the said statement shows that he stated that the suit land falls in Khasra No. 203/1, 203/2 & 203/3 and this land has been acquired. He further stated that plaintiff has encroached government land and raised unauthorized construction on the land measuring 100 sq. yards. The said statement is not in the form of any admission regarding title of plaintiffs or their predecessor in interest with respect to 100 sq. yards of land. The plaintiffs have also not proved the plaint or judgment passed in the said suit filed by their predecessorininterest. In absence thereof, it can not be construed that the subject matter of said suit was land measuring 100 sq. yards or 200 sq. yards.
16. The plaintiff no. 1 in her crossexamination stated that she is not aware whether the suit property has been acquired in the year 1962 and whether she is a trespasser on the government land. The plaintiffs have also not filed any documents to show that their land measuring 100 sq. yards does not fall in the land acquired vide Award no. 1409.
17. The plaintiff have relied on documents Ex.PW1/1 & Ex.PW1/2 to establish her title. These documents were purportedly executed on 03.11.1980. The defendant DDA has proved that the Award Ex.DW2/1 i.e. with respect to suit property was passed on 31.10.1962. Thus, the said transactions are also void.
18. The plaintiffs have also admitted that the earlier suit for injunction was filed in the year 1992. The plaintiffs have not filed copy of the plaint or judgment passed in that suit, therefore, adverse inference has to be taken against the plaintiffs. Meaning thereby that the rights of the predecessor of the plaintiffs to seek declaration of their title first accrued before 1992. As per Article 58 of the Limitation Act, 1963, the suit ought to have been filed within three years from then. However, the present suit has been filed in the year 2007 i.e. beyond the period of limitation. Even, otherwise, the present suit is also barred by Order II Rule 2 of CPC, as the cause of action to seek declaration even as per averments of plaint had accrued in the year 1992. The former suit filed by the predecessorin interest has been dismissed and the appeal has also abated.
19. No suggestion has been put to DW1 that the plaintiff is owner of 100sq. Yards of land and the said portion does not fall in the acquired land. In Traders Syndicate RCA No.10/14 Page no. 8 / 13 Vs. Union of India AIR 1983 Calcutta 337 it has been held that, "when no cross examination is preferred to the witness on the point of dispute as stated in examination in chief, then the court can hold that defendant accepted plaintiff's case on the point of entirety. No dispute can be raised in the arguments. " The aforesaid proposition has been reiterated in M/s Chunni Lal Dwarka Nath vs Hartford Fire Insurance Co Ltd AIR 1958 Punjab 440 wherein it has been held that, "a party should put to each of his opponents witnesses so much of his case as concerning that particular witness. If no such questions are put the courts presume that witnesses account has been accepted". Thus, the failure of plaintiffs to put their own case to defendant witness leads to a conclusion that they had admitted the averments of defence in that regard made by DW1 in his affidavit.
20. In view of the aforesaid discussion, it has to be concluded that the plaintiffs have failed to prove that they are the owners of suit property and entitled to declaration as prayed for. Hence this issue is decided against the plaintiffs.
21. Issue No. 2Onus to prove this issue was also placed on plaintiffs. In issue no. 1, it has already been held that plaintiffs have failed to prove the title of the suit property. It has also been proved that plaintiffs are encroachers of the public land.
22. The Hon'ble Delhi High Court in "Rajender Kakkar Vs. DDA" 1994 I AD (Delhi) 432 held the encroacher over the public land are entitled for no protection from the Court. It has held in the para 17 of the aforesaid judgment that, "Time has now come where the society and law abiding citizens are being held to ransom by persons who have no respect of law. The wheel of justice grind slowly and the violators of law are seeking to take advantage of the laws delays. That is why they insist on the letter of law be complied with by the respondents while, at the same time, showing complete contempt for the laws themselves. Should there not be a change in teh judicial approach of thinking when dealing with such problems which have increased mainfold in recent years viz., large scale encroachment on public land and unauthorized construction thereon, most of which could not have taken place without such encroacher getting blessings or tacit approval from the powers that be including the municipal or the local employees. Should the courts give protection to the violators of the law? The answer in our opinion must be in negative. Time has not come when the courts have to be satisfied, before they interfere with the action taken or proposed to be taken by the governmental authorities qua removal of encroachment or ceiling or demolishing unauthorized construction specially when such construction, like the present, is commercial in RCA No.10/14 Page no. 9 / 13 nature."
20. The plaintiffs have based their claim heavily on the allegations that Sh. N.R. Yadav, husband of the plaintiff no. 1 and father of other plaintiffs had purchased the suit property from the defendant no. 2 on execution of General Power of Attorney (Ex.PW1/1) and Agreement to Sell (Ex. PW1/2), both dated 03.11.1980. The plaintiffs have not placed on record original documents relied upon by them. The documents exhibited by the plaintiffs are mere photocopies and are illegible. Even otherwise, these documents are General Power of Attorney and Agreement to Sell. The Hon'ble Supreme Court in Suraj Lamp and Industries Private Limited v. State of Haryana and Another, (2012) 1 Supreme Court Cases 656 clearly declared the scope of agreement for sale as follows:
"Section 54 of TP Act makes it clear that a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas v. S.A. Kamtam and Anr. (1977) 3 SCC 247, observed:
A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. See Rambaran Prosad v. Ram Mohit Hazra [1967]1 SCR 293. The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of contract and annexed to the ownership of property, but not amounting to an interest or easement therein." In India, the word 'transfer' is defined with reference to the word 'convey'. The word 'conveys' in section 5 of Transfer of Property Act is used in the wider sense of conveying ownership... ...that only on execution of conveyance ownership passes from one party to another...."
The Hon'ble Supreme Court in Suraj Lamp's case (supra) further explained the scope of power of attorney which is as follows:
"A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the RCA No.10/14 Page no. 10 / 13 grantee to do the acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him (see section 1A and section 2 of the Powers of Attorney Act, 1882). It is revocable or terminable at any time unless it is made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. In State of Rajasthan vs. Basant Nehata - 2005 (12) SCC 77, this Court held :
A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience.
Execution of a power of attorney in terms of the provisions of the Contract Act as also the PowersofAttorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.
An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the guarantor."
21. In the light of law clearly declared by the Hon'ble Supreme Court in Suraj Lamp's case(supra) a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property and a power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property; no right, title or interest in respect to the suit property has been conferred on N.R. Yadav or on the plaintiffs.
22. It is noteworthy here that in the crossexamination, the plaintiff no. 1 has not specifically denied the question put to her RCA No.10/14 Page no. 11 / 13 that the suit property belongs to DDA and she answered that she did not know whether the suit property belongs to DDA. The plaintiff no. 1 has also not specifically denied the question put to her that the suit property has been acquired vide Award no. 1409 in the year 1962 and she answered that she did not know whether the suit property had been acquired vide Award no. 1409 in the year 1962. In answer to one question, the plaintiff no.1 has also stated that she did not know whether she was trespasser on the government land. The plaintiff no. 1 has also neither admitted nor denied the suggestion put to her that area where the suit property is situated had been acquired by the Government and placed at the disposal of DDA vide Award dated 03.11.1962. The plaintiff no. 1 has also neither admitted nor denied the suggestion put to her that any person residing on the said property after acquisition was an encroacher on the Government land.
23. In the light of abovesaid crossexamination of the plaintiff no. 1, therefore, I am of the clear view that the plaintiff no. 1 herself is not sure whether she has any right, title or interest in respect of the suit property. The plaintiff no. 1 is also not sure if she is an encroacher on the government land or that the land has been acquired by the government.
24. Furthermore, during the crossexamination of PW1, a question was put to her on behalf of the defendant no. 2 suggesting that Ex. PW1 and Ex. PW2, the documents on which the plaintiffs relied RCA No.10/14 Page no. 12 / 13 upon for their claim, are forged and fabricated which itself suggested that the defendant no. 2 from whom the plaintiffs have claimed to have purchased the suit property has also raised the contentions that these documents are forged and fabricated.
25. In the light of discussion abovestated, therefore, I am of the view that the plaintiffs have failed to prove the very basis of their claim. The plaintiffs have failed to prove that Sh. N.R. Yadav had purchased the suit property or that he was owner thereof. Once the plaintiffs have failed to prove the title of their predecessorin interest in respect of the suit property, they also cannot claim any right, title or interest in respect of the suit property.
26. In view of the above discussion, I am of the considered view that the impugned judgment and decree suffers from no infirmity and hence is not liable to be interfered with. The appeal is dismissed.
27. The appeal file after due compliance be consigned to the Record Room. Trial Court Record be sent back along with copy of the judgment.
Announced in the Open Court
on 09.12.2014 (Dr. Rakesh Kumar)
Additional District Judge
South District, Saket Court Complex
New Delhi
RCA No.10/14 Page no. 13 / 13