Delhi District Court
Rca No.:28/2017 Dhanpati Devi & Ors. V. ... vs Delhi Development Authority on 25 January, 2021
RCA No.:28/2017 Dhanpati Devi & Ors. v. Delhi Development Authority & Ors. DOD : 25.01.2021
: IN THE COURT OF :
DR. V.K. DAHIYA
ADDITIONAL DISTRICT JUDGE01:
SOUTHWEST DISTRICT: DWARKA COURTS:
NEW DELHI
Regular Civil Appeal No. 28/2017 (06/2017)
In the matter of:
1. Dhanpati Devi
W/o late Sh. Karan Singh
aged about 75 years
R/o House No. 37, Village Amberhai,
Sector19, Dwarka, New Delhi
2. Smt. Kamlesh
D/o Late Sh. Karan Singh
R/o House No. 37, Village Amberhai,
Sector19, Dwarka, New Delhi
3. Smt. Mukesh Kumari,
D/o Late Sh. Karan Singh,
R/o House No. 37, Village Amberhai,
Sector19, Dwarka, New Delhi
4. Smt. Urmila
W/o Sh. Jai Prakash
D/o late Sh. Karan Singh
r/o F106, Katwaria Sarai,
Hauz Khas, New Delhi
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RCA No.:28/2017 Dhanpati Devi & Ors. v. Delhi Development Authority & Ors. DOD : 25.01.2021
5. Smt. Bindu,
W/o Sh. Kuldeep Singh,
D/o Sh. Karan Singh,
R/o village Harmid Pur,
P.O. Alipur, New Delhi
6. Smt. Nirmala
W/o Sh. Om Prakash
D/o Late Sh. Karan Singh
R/o F14, Katwaria Sarai,
P.O. Hauz Khas, New Delhi
.....Appellants
Versus
1. Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, INA, New Delhi.
2. Deputy director (LM)
Dda Office, Subhash Nagar,
New Delhi
3. SDM/RA/So (Dwarka)
Village Amberhai,
Old Building, Kapashera,
New Delhi
4. Gaon Sabha,
Village Amberhai,
Through Block Development Officer,
Najafgarh, New Delhi
....Respondents
Page No. 2 of 18
RCA No.:28/2017 Dhanpati Devi & Ors. v. Delhi Development Authority & Ors. DOD : 25.01.2021
Date of Institution of Appeal : 19.01.2017
Date of reserving judgment : 25.01.2021
Date of pronouncement : 25.01.2021
Appearance:
(i) Sh. S.S. Gulia, Ld. Counsel for the appellants
(ii) Sh. Arvind Gupta, Advocate, Learned Counsel for the
respondent no. 1 & 2
REGULAR CIVIL APPEAL AGAINST THE JUDGMENT/DECREE
DATED 24.12.2016 PASSED BY LD. SCJ : SOUTH WEST DISTRICT.
J U D G M E N T:
1. Present appeal has been preferred against the impugned judgment and decree dated 24.12.2016, vide which suit of the plaintiff has been dismissed. Parties are hereinafter referred to as per their litigative status before ld. Trial court for the sake of convenience.
2. Plaintiffs have filed the present suit making the following averments :
i) Sh. Karan Singh, the husband of plaintiff No. 1 and father of plaintiff No. 2 to 6, was residing at house No. 37 village, Amberhai, Sector 19, Dwarka. (hereinafter referred to as the 'suit property') and said Karan Singh died on 20 April 1997 (hereinafter Page No. 3 of 18 RCA No.:28/2017 Dhanpati Devi & Ors. v. Delhi Development Authority & Ors. DOD : 25.01.2021 referred to as 'the deceased'). The deceased has resided in the suit property along with his family since the year 1945 - 46.
ii) It is submitted that plaintiff no. 1 after her marriage with the deceased has resided in the suit property since the year 1960.
The deceased was blessed with six daughters and marriage of all the daughters of the deceased was performed at the suit property. The daughters of the deceased divided the suit property amongst themselves through family settlement dated 26th March 2015 and plaintiffs started raising construction over their respective share in the suit property. When the construction was in progress over the suit property, officials of the defendant no. 1 and 2 arrived on 28 - 29th April 2016 and started threatening the plaintiffs to dispossess them and demolish the suit property as the land is falling within water body (johad) comprised in Khasra No. 57 of village Amberhai. It was informed that the suit property is under the control and management of defendant no. 1 and 2. The plaintiffs tried to convince the officials of the defendant no. 1 and 2 that the suit property belong to them since the year 1945 - 46 and they are residing over there without any hindrance and obstruction from any side. The plaintiffs also showed their possession to the defendants through water/electricity bills as well as the order dated 30th of April 1985 passed under section 86A of the DLR Act Page No. 4 of 18 RCA No.:28/2017 Dhanpati Devi & Ors. v. Delhi Development Authority & Ors. DOD : 25.01.2021 by learned SDM Punjabi Bagh in case no. 147/1985 in favour of the deceased and the said order depicts that the suit property is in possession of the plaintiffs for the last more than 70 years.
(iii) It is averred about that the officials of defendant no. 1 and 2 along with defendant No. 3 and 4 came at the suit property on 10 th June 2016 and directed the plaintiffs to vacate the suit property by 22nd of June 2016, otherwise, the demolition of the suit property will be carried out on 22nd June 2016. The officials of defendants are claiming the right over the suit property on the premise that the suit property falls in khasra no. 57 and is a part and parcel of the water body(johad) situated in front of the suit property, however, the suit property is separated from the said water body through a street situated between the said water body and the suit property as depicted in the photograph placed on record.
iv) It is evident that the plaintiffs are in continued and peaceful possession of the suit property since the year 1945 - 1946 till date without any obstruction from any side and having possessory title being in settled possession of the suit property. In addition to it, section 8 of the Delhi Land Reforms Act, 1954 (hereinafter referred to as the Act) confers ownership right on the plaintiffs being in possession of the suit property prior to commencement of Page No. 5 of 18 RCA No.:28/2017 Dhanpati Devi & Ors. v. Delhi Development Authority & Ors. DOD : 25.01.2021 the Act. The act of the defendants whereby they want to dispossess plaintiffs from the suit property is unwarranted and illegal and, therefore, the suit was filed by the plaintiffs for declaration, mandatory and permanent injunction.
3. The defendant appeared and filed written statement.
The defendant No. 1 and 2 in their written statement submitted that the suit property falls in Khasra No. 57 of village Amberhai and the entire Khasra is a water body (johad), which also comprises the embankment, total area admeasuring about seven Bighas in terms of the revenue record maintained by the revenue officials. It is further averred that out of the total area admeasuring 6 bighas was acquired wide award No. 48/86 - 87 and proceeding for taking possession was conducted on 22nd September 1968 and out of the total area, DDA/defendant got physical possession of 5 bigha 8 biswa and possession of 10 biswa was handed over by way of formal possession of the total acquired land. The said possession has been handed over by the LAC and L&B department to the DDA. The remaining area of 2 biswa could not be taken on account of (Tomb)samadhi. Therefore, possession of the remaining land i.e. 1 bigha and 12 biswas comes from acquisition i.e. (100) & (002) which stood acquired but possession was not taken. The physical possession of the said Page No. 6 of 18 RCA No.:28/2017 Dhanpati Devi & Ors. v. Delhi Development Authority & Ors. DOD : 25.01.2021 land admeasuring 1 bigha 12 biswa has been handed over to DDA by BDO SouthWest on 30th September 2003. The suit property falls in Khasra No. 57min admeasuring 1 bigha 12 biswa and the total area of land comprised in Khasra no. 57 of village Amberhai was placed at the disposal of the DDA.
4. Defendant No. 4 filed a written statement stating that prior to urbanisation the village Amberhai defendant No. 4 was the owner of the suit property.
5. The learned trial court after hearing the parties framed the preliminary issue vide order dated 24.10.2016 which is as under:
"Whether the prayer for declaration made by the plaintiff is not maintainable in law"
6. The learned trial court after hearing the counsel for the parties on the preliminary issue dismissed the suit being not maintainable in terms of the impugned judgment/decree. Feeling aggrieved by the impugned judgment/decree the present appeal has been preferred.
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7. During the course of arguments counsel for the plaintiff has raised the following contentions namely:
a) The learned trial court has erred in holding that the suit is not maintainable as the title of the plaintiffs is based only on the adverse possession, thus the relief of declaration cannot be granted. But such finding is perverse in as much as the plaintiffs have claimed in the plaint that they are in long continuation settled possession of the suit property from the year 194546 till date and plaintiff has attained the possessory title over the suit property and have all rights to protect their possession.
b) The learned trial court has wrongly and erroneously observed that the relief of permanent and mandatory injunction being ancillary relief, which could not be granted as the main relief of declaration is being not maintainable. However, the relief of permanent and mandatory injunction are not only independent but separately valued but also has been prayed by the plaintiffs independently and separately. The ld. trial court overlooked the said fact and treated the relief of permanent and mandatory injunctions under clause 'B' and 'C' of the plaint as consequential relief, therefore, the impugned judgment/decree deserves to be set aside.
c) The learned trial court has not appreciated that the plaintiffs are in uninterrupted, continuous and long possession for such a long time and plaintiffs could not be dispossessed without due process of law. The defendants are adamant to dispossess the plaintiffs from the suit property without following the due process of law, which forced the plaintiffs to file the suit along with the Page No. 8 of 18 RCA No.:28/2017 Dhanpati Devi & Ors. v. Delhi Development Authority & Ors. DOD : 25.01.2021 relief of permanent and mandatory injunction which has wrongly been termed as consequential relief by the learned trial court. In this regard reliance is placed upon judgment Rame Gowda (dead) by LRs vs. M. varadappa Nainu (dead) by LRs & Anr. (2004) 1 SCC 769.
d) The ld. Trial Court has erred in holding that the present suit was simplicitor for the relief of permanent injunction and is not maintainable as plaintiffs failed to seek the relief of declaration.
However, the learned trial court ignored the dictum of law that multiplicity of litigation should have been avoided and therefore, the learned trial court by holding that the relief of declaration cannot be granted, in the facts and circumstances of the case, ought to have held the suit maintainable for the remaining relief of permanent and mandatory injunction. Otherwise also, the plaintiff could have abandoned the relief of declaration in view of order XXXIII rule 1 CPC, and in that eventuality, the suit of the plaintiff for the remaining relief of permanent and mandatory injunction was maintainable.
e) The learned trial court has wrongly interpreted the law laid down in the judgment in Anathulla Sudhakar v. P. Buchi Reddy 2008(4) SCC 594.
f) It is further contended that the suit can be filed by the owner as well as the person in possession of the immovable property either on the basis of title or on the possessory title respectively. Therefore, suit filed by the plaintiff is maintainable in terms of the judgment Phiraya Lal Alias Piara Lal And v. Jia Rani And Anr.
Page No. 9 of 18RCA No.:28/2017 Dhanpati Devi & Ors. v. Delhi Development Authority & Ors. DOD : 25.01.2021 1972 AIR 1973 Delhi 186. It is prayed that the appeal may be allowed and the judgment/decree passed by the ld. Trial Court be set aside.
8. Per contra, ld. Counsel for the defendants has contended that as per the land record DDA is the actual and rightful owner of the suit property. The suit property admeasuring 500 sq. yds. falls within Khasra No. 57 of village Amberhai, which has been illegally encroached by the plaintiffs and construction has been raised over there up to three stories. The suit property is a part and parcel of the water body which comprises the embankment area totalling an area of 7 bighas as per revenue record. The area admeasuring 7 bighas was acquired through notification issued under the DDA Act and DDA got possession of the land except 1 bigha 12 biswas and the physical possession of the same has been handed over by BDO to the DDA on 23.11.2003. The suit property (1 bigha 12 biswas) falls in Khasra No. 57 and not in Khasra No. 56 as alleged by the plaintiffs. The village pond including the suit property stood vested in DDA and plaintiff has no right in the suit property.
9. I have heard the ld. Counsel for the parties and with their assistance have gone through the record.
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10. It may be noted that the plaintiff has filed the present suit with the following prayer (a) :
"Pass a decree of declaration in favour of plaintiffs and against the defendants, whereby the plaintiffs be declared in possession of the suit property i.e. H. No. 37, Vill. Amberhai, Sector 19, Dwarka, New Delhi since 194546 being the owner or in alternative a decree of declaration be passed in favour of plaintiffs and against the defendants thereby the plaintiffs be declared owner of the suit property in by way of adverse possession."
11. The ld. Trial Court has observed that plaintiff has filed the suit for decree of declaration as owner of the suit property by way of adverse possession and suit for declaration claiming ownership by way of adverse possession is not maintainable. The ld. Trial Court has made such observations by relying upon the case Law Gurudwara Sahab v. Gram Panchayat Village Sirthala (2014) 1 SCC 669. However, the said judgment has been over ruled by Hon'ble Supreme Court in judgment Ravinder Kaur Grewal vs Manjit Kaur passed in Civil Appeal No.7764 / 2014, wherein in para no. 59, 60 & 61, it has been observed as under :
"59. We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years' period of adverse possession is Page No. 11 of 18 RCA No.:28/2017 Dhanpati Devi & Ors. v. Delhi Development Authority & Ors. DOD : 25.01.2021 over, even owner's right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner's title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.
60. When we consider the law of adverse possession as has developed vis a vis to property dedicated to public use, courts have been loath to confer the right by adverse possession. There are instances when such properties are encroached upon and then a plea of adverse possession is raised. In Such cases, on the Page No. 12 of 18 RCA No.:28/2017 Dhanpati Devi & Ors. v. Delhi Development Authority & Ors. DOD : 25.01.2021 land reserved for public utility, it is desirable that rights should not accrue. The law of adverse possession may cause harsh consequences, hence, we are constrained to observe that it would be advisable that concerning such properties dedicated to public cause, it is made clear in the statute of limitation that no rights can accrue by adverse possession.
61. Resultantly, we hold that decisions of Gurudwara Sahab v. Gram Panchayat Village Sirthala (supra) and decision relying on it in State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj (supra) and Dharampal (dead) through LRs v. Punjab Wakf Board (supra) cannot be said to be laying down the law correctly, thus they are hereby overruled. We hold that plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff."
A bare perusal of the mandate of law laid down by Hon'ble Supreme Court in the above said case law depicts that a civil suit for declaration by claiming adverse possession of the suit property is maintainable against private persons only and not against the Government on account of the statute of limitation as has been observed in para no. 60 of the judgment Ravinder Kaur Grewal (supra). Therefore, no suit for declaration by seeking ownership by way of adverse possession against the Government Page No. 13 of 18 RCA No.:28/2017 Dhanpati Devi & Ors. v. Delhi Development Authority & Ors. DOD : 25.01.2021 is not maintainable as per the above said judgment. As such, I agree with the findings recorded by the ld. Trial Court on the maintainability of the suit for declaration on the basis of adverse possession with somewhat different reasoning as per the law laid down in judgment Ravinder Kaur Grewal (supra).
12. It may also be relevant to mention here that the ld.
Trial Court has rightly observed that though the plaintiff has filed the suit for declaration to be declared in possession being the owner of the suit property or in the alternative suit for declaration as owner of the suit property by way of adverse possession, yet the sum and substance of the relief claimed by the plaintiff is declaration of his ownership by way of adverse possession. As stated above, suit for declaration by way of adverse possession is not maintainable against the Government as per the mandate of law as discussed in the foregoing paras of this judgment,the ld. Trial Court has rightly observed that all the remaining prayers in the prayer clause of the plaint namely, a decree of permanent injunction and mandatory injunction are consequential relief in as much as the said prayer clause (b) and (c) are contingent upon relief in clause (a) for decree of declaration as owner of the suit property by way of adverse possession.
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13. It may a also be relevant to mention here that the land in question including the suit property, which as per the case of the defendant is falling in khasra no. 57 min and is part and parcel of Village pond (johad) already stood acquired and vested in DDA vide award / notification no. 48/8687 issued under the relevant provisions of the Delhi Development Authority Act by the government and the said award / notification has never been challenged by the plaintiff at any point of time. Apart from that it may also be relevant to mention here that no injunction is to be granted, even in the case, where the public property including village pond are encroached upon, though not quoted reliance is placed upon judgment Jagpal Singh v. Union of India & Ors. passed in CA No.1132 /2011, wherein, it has been observed as under :
"16. The present is a case of land recorded as a village pond. This Court in Hinch Lal Tiwari vs. Kamala Devi, AIR 2001 SC 3215 (followed by the Madras High Court in L. Krishnan vs. State of Tamil Nadu, 2005(4) CTC 1 Madras) held that land recorded as a pond must not be allowed to be allotted to anybody for construction of a house or any allied purpose. The Court ordered the respondents to vacate the land they had illegally occupied, after taking away the material of the house. We pass a similar order in this case."
XXXXX Page No. 15 of 18 RCA No.:28/2017 Dhanpati Devi & Ors. v. Delhi Development Authority & Ors. DOD : 25.01.2021
14. So far as the contention that even if, the main relief of the declaration of ownership of the plaintiff over the suit property by way of adverse possession is not maintainable the other ancillary relief cannot be granted is concerned, suffice is to say that no fault can be found with such findings recorded by ld. Trial Court in as much as when the main relief for declaration is not maintainable then ancillary relief by way of permanent and mandatory injunction cannot be granted.
15. So far as the ratio of Anathulla Sudhakar (supra) is concerned, the same is to the effect that when the coulds is raised of the title of the plaintiff and it does not have possession, a suit for declaration and possession with or without a conseqentuaial injunction is the remedy, however, the plaintiff has filed suit for declaration seeking declaration as owner of the suit proeprty by way of adverse possession, therefore, the ratio of Anathulla Sudhakar is having no applicability to the facts of the present case.
16. As far as ratio of Rame Gowda(supra) is concerned, suffice is to say that facts in the said case are to the effect that plaintiff (therein) was found having failed to prove his title, nevertheless plaintiff (therein) had been found to be in settled Page No. 16 of 18 RCA No.:28/2017 Dhanpati Devi & Ors. v. Delhi Development Authority & Ors. DOD : 25.01.2021 possession of the property; even the defendant (therein) failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff (therein). In those circumstances, the Hon'ble Supreme Court has observed that the ld. Trial Court and Hon'ble High Court were right in leaving the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The ratio of this judgment has no relevance to the facts of the present appeal in as much as plaintiffs have sought declaration of ownership over the suit property by way of adverse possession and as such stand distinguished from the facts of the above said judgment.
17. As far as the ratio of Phiara Lal (supra) is concerned the same is to the effect that a possessory title is good against everyone who does not have a better one, therefore, the ratio of this judgment is also having no relevance to the facts of the present case in as much as plaintiffs are seeking not only possessory title but has sought ownership which is alleged to have fructified into ownership by virtue of adverse possession.
18. As a sequel to the above said discussion, it can be safely concluded that ld. Trial Court has rightly framed the issue Page No. 17 of 18 RCA No.:28/2017 Dhanpati Devi & Ors. v. Delhi Development Authority & Ors. DOD : 25.01.2021 which is purely a question of law, and I agree with the findings so recorded by ld. Trial Court with somewhat different reasoning from that of the Ld. Trial Court. As such this appeal is devoid of merits and is dismissed and disposed off accordingly.
No order as to cost.
Trial Court record be sent back along with copy of this order.
Decree Sheet be drawn accordingly.
Appeal file be consigned to record room.
DR Digitally signed
by DR VIJAY
Announced and dictated on VIJAY KUMAR
DAHIYA
25th Day of January 2021 KUMAR Date:
2021.02.20
DAHIYA 17:07:33 +0530
(V.K. DAHIYA)
ADDL.DISTRICT JUDGE01 (SOUTH WEST)
DWARKA DISTRICT COURTS: NEW DELHI.
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