Delhi District Court
Sailesh Kumar & Ors vs . Sanaullah & Ors Page 1 Of 14 on 5 July, 2018
IN THE COURT OF NAMRITA AGGARWAL, SCJ-CUM-RC, NEW DELHI
DISTRICT, PATIALA HOUSE COURT, NEW DELHI
CS No. 57983/16
1 Sailesh Kumar
S/o. Late Sh. Devi Singh
House No. H-185, Main Road,
Village -Masoodpur
New Delhi -110070
2. Jaipal
S/o. Late Sh. Devi Singh
House No. H-185, Main Road,
Village -Masoodpur
New Delhi -110070
3. Satish Kumar
S/o. Late Sh. Devi Singh
House No. H-185, Main Road,
Village -Masoodpur
New Delhi -110070
4. Jai Bhagwan
S/o. Late Sri Shiv Charan
A-95, Main Road,
Village- Masoodpur,
New Delhi -110070
5. Ashok Kumar
S/o. Late Sri Shiv Charan
A-95, Main Road,
Village- Masoodpur,
New Delhi -110070
6. Mahaveer Singh
S/o. Late Shri Kalu Ram
A-48, Main Road,
Sailesh Kumar & Ors Vs. Sanaullah & Ors Page 1 of 14
Village- Masoodpur,
New Delhi -110070
7. Ajit
S/o. Late Shri Kalu Ram
A-48, Main Road,
Village- Masoodpur,
New Delhi -110070
8. Col. Mahinder Singh
S/o. Late Captain Shri Sultan Singh
R/o. House No. 47( Main Road)
Village- Masoodpur,
New Delhi -110070
9. Anil Malik
S/o. Late Captain Shri Sultan Singh
R/o. Flat No. 3391, Block-D/3,
Vasant Kunj
New Delhi -110070
10. Inder Malik
S/o. Late Sri Bhim Singh
C-12, Main Road,
Village- Masoodpur,
New Delhi -110070
11. Jaipal Malik
S/o. Late Sri Bhim Singh
C-12, Main Road,
Village- Masoodpur,
New Delhi -110070
12. Satbir Malik
S/o. Late Sri Bhim Singh
C-12, Main Road,
Village- Masoodpur,
New Delhi -110070
Sailesh Kumar & Ors Vs. Sanaullah & Ors Page 2 of 14
13. Ved Pal Malik
S/o. Late Sri Bhim Singh
C-12, Main Road,
Village- Masoodpur,
New Delhi -110070
14. Ranjit Singh
S/o. Late Hari Singh
C-12, Main Road,
Village- Masoodpur,
New Delhi -110070
15. Ranvir
S/o. Late Hari Singh
C-12, Main Road
Village -Masoodpur,
New Delhi -110070
16. Surjan Singh
S/o. Late Sh. Shiv Lal
A-64, Main Gali,
Village- Masoodpur
New Delhi
17. Maya Devi
W/o. Late Ishwar Singh
A-64, Main Gali,
Village- Masoodpur
New Delhi -110070
18. Rakesh
S/o. Late Ishwar Singh
A-64, Main Gali,
Village- Masoodpur
New Delhi -110070
19. Harkesh
S/o. Late Ishwar Singh
A-64, Main Gali,
Village- Masoodpur
Sailesh Kumar & Ors Vs. Sanaullah & Ors Page 3 of 14
New Delhi -110070
20. Raj Kumar
S/o. Late Ram Kumar
A-64, Main Gali,
Village- Masoodpur
New Delhi -110070
21. Ajit Singh
S/o. Late Harnarain
H-68, Main Gali,
Village- Masoodpur
New Delhi -110070
22. Ranjit Singh
S/o. Late Harnarain
H-68, Main Gali,
Village- Masoodpur
New Delhi -110070
23. Jiwni Devi
D/o. Late Harnarain
H-68, Main Gali,
Village- Masoodpur
New Delhi -110070
24. Yashwanti Devi
D/o. Late Harnarain
H-68, Main Gali,
Village- Masoodpur
New Delhi -110070
25. Rakesh
S/o. Late Lajha Ram
H-67, Main Gali,
Village- Masoodpur
New Delhi -110070
26. Sarju
S/o. Late Lajha Ram
H-67, Main Gali,
Sailesh Kumar & Ors Vs. Sanaullah & Ors Page 4 of 14
Village- Masoodpur
New Delhi -110070
27. Chandramukhi
S/o. Late Lajha Ram
H-67, Main Gali,
Village- Masoodpur
New Delhi -110070
28. Santosh
S/o. Late Lajha Ram
H-67, Main Gali,
Village- Masoodpur
New Delhi -110070
29. Vidya
S/o. Late Lajha Ram
H-67, Main Gali,
Village- Masoodpur
New Delhi -110070
30. Suresh
S/o. Late Lajha Ram
H-67, Main Gali,
Village- Masoodpur
New Delhi -110070
..... Plaintiffs
Versus
1. Shri Sanaullah Miah
S/o. Sh. Sukhar Ali Miah
Jai Hind Camp,
Behind Nathu Singh Market
Masoodpur Village
New Delhi -110070
2. Sh. Alam
Temporary Huts (Jhughi)
Behind Nathu Singh Market
Sailesh Kumar & Ors Vs. Sanaullah & Ors Page 5 of 14
Masoodpur Village
New Delhi -110070
(Deleted vide order dt. 17.03.2016)
3. Sh. Muzavvir
Temporary Huts (Jhughi)
Behind Nathu Singh Market
Masoodpur Village
New Delhi -110070
(Deleted vide order dt. 17.03.2016)
4. Deputy Commissioner
Municipal Commission of Delhi (South)
Green Park, New Delhi
5. SDM (Task Force)
Vasant Vihar,
Old Terminal Building, Kapashera
New Delhi -110037
6. SHO (South)
Vasant Kunj Police Station
New Delhi -110070
..... Defendants.
Date of institution : 09.12.2015
Date of final arguments : 16.04.2018
Date of judgment : 05.07.2018
JUDGMENT
1. A suit for prohibitory injunction has been filed by the plaintiffs against the defendants claiming the following reliefs:-
(a) Issue injunction against the Defendants No.1 to 3 and their agents, successors, preventing them to make any further construction in the suit land;Sailesh Kumar & Ors Vs. Sanaullah & Ors Page 6 of 14
(b) direct the Deputy commissioner (MCD) South, to demolish the illegal construction made in the suit land,
(c) pass any other order or direction as this Court may deem fit and proper in the facts and circumstances of the case.
2. The brief facts, as averred by the plaintiffs, are that the plaintiffs are the bhumidars/owners of the land admeasuring 29 bigha and 13 biswa bearing Khasra No.68, 84 and 85, village Masoodpur, Vasant Kunj, New Delhi (hereinafter referred to as, ''suit property''). The plaintiffs No.4 to 7 have 1/48 portion i.e. 12 biswa, plaintiffs No.8 and 9 have 1/48 portion i.e. 12 biswa, plaintiffs No.10 to 15 have 1/48 portion i.e. 12 biswa, the plaintiffs No. 16 to 30 have 1/4 portions i.e. 7 bigha and 8 biswa, the plaintiffs No.16 to 39 have 1/4 portions i.e. 7 bigha and 8 biswa in the said land and the names of the plaintiffs have been duly recorded in the Khatauni since 1984- 85 till 2014; that the suit property was in the possession of the plaintiffs, who with the other co-owners were cultivating individually, prior to vesting of the said land in Gaon Sabha in the year 2004. The plaintiffs No.1,2,5,6,7,10,11,12,14,15,17 to 20 and 22 to 30 are represented through their power of attorney; that the village Masoodpur comes under the South West District of Revenue Department and West Zone of the MCD. The said village has been urbanized, vide Notification under section 507 of the Delhi Municipal Corporation Act, 1957, bearing No. TCO/82/47 dated 23.04.1982. The land of village Massodpur has been acquired by the Government in 1980 for the Delhi Development Authority (DDA), whereas suit property was left out from land acquisition; that before the SDM, Vasant Vihar, illegal proceedings were initiated against the plaintiffs under section 81 of the Delhi Land Reforms Act, 1954 and the suit property became vested in the Gaon Sailesh Kumar & Ors Vs. Sanaullah & Ors Page 7 of 14 Sabha on 04.02.2004 on the false allegations that the suit property was being used for purposes other than the agricultural purposes; that in October 2004, some of the plaintiffs filed appeals i.e. Case No. 82/2004, Case No.86/23004, Case No. 87/2004, before the Deputy Commissioner, South-West District against the order dated 04.02.2004 under the provisions of Delhi Land Reforms Act, where it was submitted that the vesting of the suit property in the Gaon Sabha is illegal as the said DLR Act has no application to the villages, which has been urbanized by the notification under section 507 of the DMC Act, 1957; that the proceedings before the SDM were pending for more than 10 years and no decision had been taken by the Deputy Commissioner. Therefore, in such circumstances, the plaintiffs were constrained to file a Writ Petition (Civil) No.4877 of 2014 challenging the impugned order dated 04.02.2004 passed by the SDM and the Hon'ble High Court vide order dated 13.08.2014 had directed the appellate authority i.e. Deputy Commissioner / DM to dispose of the said appeals within three months from the date of the order; after hearing the plaintiffs and the counsel for the Gram Sabha, the Deputy Commissioner, vide order dated 20.02.2015, has set aside the order dated 04.02.2004 passed by the SDM; that there is no cloud over the ownership of the plaintiffs in the suit property and the plaintiffs have filed necessary applications before the Tehsildar for mutation of their names in the revenue records; that during the period when the suit property was vested in the Gaon Sabha, by taking advantage of the situation, the construction workers have set up illegal jhuggis i.e. temporary huts. All the jhuggis have been illegally constructed in the suit property and the jhuggi dwellers have no right, title, interest in the suit property and are trespassers on the land in question; that the plaintiffs have filed the suit CS (OS) No.157 of 2015 for Sailesh Kumar & Ors Vs. Sanaullah & Ors Page 8 of 14 mandatory injunction for delivery of possession against the jhuggi dwellers residing in the suit property; that the plaintiffs No. 3 and 9 visited the suit property on 19.10.2015 and noticed fresh digging of earth on the suit property for the purposes of construction of a permanent structure. Further, on 20.10.2015, they found an electricity meter bearing CA No.15138523 and were surprised as the defendants were not the owners of the suit property. On inquiry, the plaintiffs came to know that in connivance with the BSES and by forging of documents, an electricity connection of 47 KW for domestic use had been obtained by the defendant No.1; that the plaintiffs have come to know that the defendant No.1 with the defendants No.2 and 3 are instrumental in raising construction on the suit property and from the said electricity meter are distributing electricity to the other jhuggis dwellers illegally residing in the suit property; that the plaintiffs have made a complaint to the defendants No.2,3 and 4 for appropriate action and when the police inspected the spot, the digging activities were stopped. The plaintiffs on 29.11.2015 have noticed brick with cement bags lying in the suit property and have also seen construction workers on the site. The defendants No.1,2 and 3 have trespassed the suit property and do not have any right to make any constructions therein. It is stated that the plaintiffs shall suffer irreparable loss, if defendants are not restrained from carrying on further constructions.
3. Defendant No.1 did not file the written statement on time despite being given several opportunities due to which the right of defendant No.1 to file the written statement was closed vide order dated 20.08.2016. Defendants No.2 and 3 were deleted from the array of the parties by the plaintiffs.
Sailesh Kumar & Ors Vs. Sanaullah & Ors Page 9 of 144. During PE, PW1 Sh. Satish Kumar entered into the witness box and he relied upon the following documents:-
(i) Original death certificate of Mr. Devi Singh, Ex.PW1/1.
(ii) Site plan of Khasra No. 68, 84 and 85, Village Masoodpur, Vasant Kunj, New Delhi, Ex.PW1/2.
(iii) Khatoni as issued on 31.01.2014 alongwith the translated copy, Ex.PW1/3.
(iv) Khatoni of Khasra No.68, 84 and 85, Village Masoodpur, dated 11.01.2016 alongwith the translated copy, Ex.PW1/4.
(v) The Power of Attorney executed by the plaintiffs No.1 and 2 in favour of the deponent, Ex.PW1/5.
(vi) Order dated 04.02.2004 passed by the SDM under section 81 of DLR Act, 1954 and its true typed copy, Ex.PW1/6.
(vii) Order dated 20.02.2015 passed by the Learned District Collector, Ex.PW1/7.
(viii) Certified copy of the suit No.157/15 titled as Sailesh Kumar and Ors. Vs. Jamna and Ors. pending in the court of Sh.
Ajay Garg, Ld. JSCC, Patiala House Courts, New Delhi, Ex.PW1/8.
(ix) Electoral Roll prepared by the Government showing details of the jhuggi dwellers, Ex.PW1/9.
(x) Electricity Bill for the month of October 2015, Ex.PW1/10.
(xi) Complaints of the plaintiff to the Deputy Commissioner MCD, SDM and SHO Vasant Kunj, dated 23.10.2015, Ex.PW1/11.
Sailesh Kumar & Ors Vs. Sanaullah & Ors Page 10 of 145. PW2 Sh. Surjan Singh entered into the witness box and he relied upon the document i.e. the Power of Attorney executed by the plaintiffs No.17 to 20 in favour of the deponent, Ex.PW2/1.
6. PW3 Col. Mahender Singh Malik entered into the witness box and he relied upon the following documents:-
(i) The Power of Attorney of plaintiff No.9, Ex.PW3/1.
(ii) Khatoni for the year 1984-85 already exhibited as Ex.PW1/4 (colly).
(iii) Khatoni for the year 1964-65 (in Urdu) and there translation, Ex.PW3/2 (colly).
(iv) Order dated 04.02.2004 already exhibited as Ex.PW1/6.
(v) Order dated 20.02.2015 already exhibited as Ex.PW1/7.
(vi) Mutation in revenue record dated 04.05.2016 marked as Mark A.
(vii) Plaint in Suit No.CS No. 157/2015 already exhibited as Ex.PW1/8.
(viii) Site plan showing the illegal construction already exhibited as Ex.PW1/2.
(ix) Three complaints dated 23.10.2015 already exhibited as Ex.PW1/11 (colly.)
7. PW4 Sh. Jai Bhagwan entered into the witness box and he relied upon the following documents:-
Sailesh Kumar & Ors Vs. Sanaullah & Ors Page 11 of 14(i) Special Power of Attorney in favour of Plaintiff No.5, Ex.PW4/1.
(ii) Khatoni dated 31.01.2014 alongwith translated copy in Hindi, Ex.PW4/2.
(iii) Khatoni dated 11.01.2016 alongwith translated copy, Ex.PW4/3.
(iv) Order dated 04.02.2004 passed by the SDM under section 81 of DLR Act, 1954, Ex.PW4/4.
(v) Copy of an appeal of the Deputy Commissioner South West / Appeal No.22/2014, Ex.PW4/4A.
(vi) Copy of order dated 20.02.2015, Ex.PW4/5.
(vii) Copy of the mutation for the year 2016, Ex.PW4/6.
(viii) Copy of the electricity bill for the month of October 2015,
Ex.PW4/7.
8. PW5 Sh. Ved Pal Malik entered into the witness box and he relied upon the following documents:-
(i) Special Power of Attorney dated 19.10.2015 in favour of Plaintiff No.5, Ex.PW5/1.
(ii) Khatoni dated 31.01.2014 alongwith certified translated copy in Hindi, already Ex.PW4/2.
(iii) Khatoni dated 11.01.2016 alongwith translated copy, already Ex.PW4/3.
(iv) Order dated 04.02.2004 passed by the SDM under section 81 of DLR Act, 1954, already Ex.PW4/4.
(v) Copy of an appeal of the Deputy Commissioner South West / Appeal No.22/2014, already Ex.PW4/4A.
(vi) Copy of order dated 20.02.2015, already Ex.PW4/5.Sailesh Kumar & Ors Vs. Sanaullah & Ors Page 12 of 14
(vii) Copy of the mutation for the year 2016, already Ex.PW4/6.
(viii) Copy of the electricity bill for the month of October 2015, already Ex.PW4/7.
9. I have heard the contentions of the parties and have perused the record.
10. During arguments, it was averred by defendant No.1 that defendant No.1 is in occupation of the suit property for the last several years and therefore, it is only the Government, who can displace them. The plaintiff, on the other hand, has placed on record the Khatoni records of village Maksoodpur, Vasant Kunj of Khasra No.64, 84 and 85 reflecting the names of the plaintiffs in the column of Khatedar. The said Khatoni also records the order dated 15.10.2012 whereby the rights of bhumidar under section 81 of Delhi Land Reforms Act have been transferred by the Gram Sabha in favour of the plaintiffs. Further, the plaintiffs have also filed on record the updated Khatoni dated 04.05.2016 Mark A to prove that even as on date, the plaintiffs are shown as the Khatedar of the suit property. It is not the case of the defendant No.1 that he is the owner of the suit property. Further, perusal of the photographs and the complaint Ex.PW1/11 made by the plaintiffs clearly shows that construction activities are going on in the suit property. Further, as per order dated 20.02.2015, Ex.PW1/7, the suit property was taken back from Gram Sabha and a mutation and revenue record was also made in favour of the plaintiffs on 04.05.2016, Mark A. PW4 further filed a copy of the mutation the year 2016, Ex.PW4/6 to prove that the plaintiffs are the owners of the suit property. The defendant, on the other hand, failed to prove that he is in possession of the suit property for the last several years Sailesh Kumar & Ors Vs. Sanaullah & Ors Page 13 of 14 or that he has any right, title or interest of any nature whatsoever over the suit property. That being the case, the defendants have failed to prove any right over the suit property and therefore, the plaintiffs are entitled to the reliefs, as claimed for. The suit is, therefore, decreed in favour of the plaintiffs. Decree sheet be prepared accordingly. No orders as to the cost.
File be consigned to Record Room.
Digitally signed by NAMRITA NAMRITA AGGARWAL
AGGARWAL Date: 2018.07.07
16:39:42 +0530
Announced in the open ( NAMRITA AGGARWAL)
court on 05.07.2018 SCJ-CUM-RC:PHC:NEW DELH
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