Delhi District Court
-1- Kalyan Dass vs . Dda on 25 February, 2010
-1- Kalyan Dass Vs. DDA
IN THE COURT OF SH. ANIL KUMAR, ACJ/ARC (NE),
COURT NO. 53, KKD COURTS, DELHI.
Suit No. 571/06
In the matter of :
Sh. Kalyan Dass
S/o Late Sh. Daya Nand
R/o 1/11022 West Subhash Park,
Saptrishi Marg,
Naveen Shahdara,
Delhi-110032. ....Plaintiff
Versus
Delhi Development Authority
Through Its Vice Chairman
Vikas Sadan, I.N.A. Market,
New Delhi. ....Defendant
Date of Institution : 03/07/2002
Final Argument Heard on : 19/01/2010
Date of Judgment : 25/02/2010
JUDGMENT :
1. This is a suit for permanent injunction and thereby plaintiff has sought a decree of permanent injunction for directing the defendant, its officials, agents, etc. not to disturb the peaceful possession and enjoyment of the plaintiff in respect of suit premises measuring 112-1/2 Sq. Yards consisting of structure of a room out of Khasra no. 513 situated at village Gokulpur, Delhi
-2- Kalyan Dass Vs. DDA now premises no. B-4, Harijan Basti, West Jyoti Nagar, Loni Road, Shahdara, Delhi as shown in red in site plan (herein referred as to suit property) without valuation due process of law. The case of the plaintiff is that his father purchased suit property on 11/05/1983 by way of registered GPA, agreement to sell for sum of Rs. 10,000/- from Sh. Hari Singh, S/o Sh. Kantu Ram and his father enjoyed the suit property during his life time and after his death suit property devolved to plaintiff by way of succession. In year 1987 colony Harijan Basti, West Jyoti Nagar, Loni Road, Shahdara, Delhi in which suit property situated has been approved/regularized by Govt. of NCT Delhi. All the Civil amenties such as water and electricity provided to the residents of the colony by Govt. Further in the 1991 the census of houses was conducted by the Central Govt. and in the same plaintiff has been shown in the possession of the suit property and for the map approved by Govt. of NCT the suit property has been numbered as B-4. There was a dispute between occupant and adjacent plot no. B-3 and on that account defendant demolished the construction raised by occupants and adjacent plot no. B-3 and inadvertantly also demolished some portion of premises of plaintiff. On
-3- Kalyan Dass Vs. DDA 01/06/2002 plaintiff visited the suit property and found that some portion of the suit property has been demolished by the defendant inadvertantly and on enquiry officials of defendant namely Sh. Suresh demanded some easy money and threatened that if he failed to fulfill the demand then suit property shall be merged with adjacent plot which had already been demolished.
Plaintiff has claimed that in the revenue record the suit property has been shown in the population and hence the defendant does not have any right and interest in the suit property. He has further stated that plaintiff has been enjoying peaceful and un-interrupted possession of the suit property since 1983 and now he has every apprehension that the official Suresh by misguiding the defendant can get executed his illegal threat at any moment.
2. Defendant has contested the present suit by taking defence that suit property falls in khasra No. 513 min and 514 min of village Gokalpur and same was acquired by award No. 2004 and transferred to DDA by virtue of Notification No. F.8(27)/77 dt. 08/06/1990 and No. F.8(49)63-L&H(ii) dt. 19/06/1968 under section 22(1) of DD Act 1957 and physical possession of the suit property was handed over to DDA on 02/05/1968 and 01/02/1990
-4- Kalyan Dass Vs. DDA and same was fenched after 08/06/1990. Defendant has alleged that the plaintiff tress-passed and encroached upon the Govt. land without any right or title and made some fresh construction which was demolished on 17/02/2001 and the same is now with the defendant. Defendant has taken further defence that statutory notice under section 53-B has not been served. On merit defendant has denied the material contents of the plaint and stated that sale and purchase of land after issue of Notification under section 6 of the Land Acquisition Act 1894 is not permissible under Delhi Land (Restriction or Transfer) Act 1972 and alleged sale of suit property in favour of father of plaintiff on 11/05/1983 is void and ab-initio and is not tenable under the law as, in respect of the suit property, Notification under section 6 of Land Acquisition Act 1894 was issued on 01/08/1966.
3. Plaintiff has filed replication to the written statement filed by defendant and has denied the contents of WS of defendant which are in denial of contents of plaint and has re-iterated that he is in possession of suit property.
4. On the basis of the pleadings of parties following issues were framed vide order dt. 15/07/2003 :
-5- Kalyan Dass Vs. DDA
1) Whether suit is bad for want of notice under section 53-
B of DD Act? OPD
2) Whether plaintiff is owner in possession of suit land
measuring 112 ½ Sq. Yards out of khasra No. 513 in village Gokalpur? OPP
3) Whether suit land falls in khasra No. 513 and 514 min in village Gokalpur which stands acquired and has been placed at the disposal of DDA? OPD
4) Whether plaintiff is entitled for the relief of injunction as prayed for? OPP
5) Relief
5. Thereafter, in support of his case plaintiff got examined Sh. Vinay Kumar Jain as PW 1, Sh. Kalyan Dass as PW 2, Sh. Jaivir Singh as PW 3, Sh. Sanjay Kumar, LDC, SDM Seelampur as PW 4, Sh. Prem Chand, Kanoongo, SDM Seelampur as PW 5 and proved on record copy of site plan as marked P, copy of death certificate of father of plaintiff as Ex. PW 2/2, copy of notification no. F-12(108)/86/L&B/Part 26291 dt. 13/07/1987 as Ex. PW 2/3, copy of bills issued by electricity deptt. as Ex. PW 2/4 and 5, the GPA as marked Y, agreement to sale as Ex. PW 2/7, copy of receipt dt. 21/10/1983 as Ex. PW 4/1, copy of khatoni 1989-90 of village Gokalpur as Ex. PW 5/1. PW 3 Sh. Jaivir Singh has not produced himself in witness box for cross-examination.
Other hand, defendant in support of its case got examined Sh. Satbir Singh, Patwari, LM/East Zone as DW 1 and
-6- Kalyan Dass Vs. DDA proved on record copy of award as Ex. DW 1/1, copy of notification under section 22(1) of DD Act as Ex. DW 1/2 and 1/3, copy of possession report as Ex. DW 1/4, copy of demolition report dt. 17/02/2001 as Ex. DW 1/5, copy of sizra of suit property as Ex. DW 1/6.
6. I have heard the Ld. counsel for plaintiff and given my thoughtful consideration to her submissions. I have gone through the evidence on record and my issue wise findings are as under :
Issue 1 : Whether suit is bad for want of notice under section 53-B of DD Act? OPD Onus to prove this issue is on defendant. During the course of argument this issue has not pressed by Ld. counsel for defendant. Hence this issue is decided against the defendant and in favour of plaintiff.
Issue 2 : Whether plaintiff is owner in possession of suit land measuring 112 ½ Sq. Yards out of khasra No. 513 in village Gokalpur? OPP Onus to prove this issue is on plaintiff. Ld. counsel for plaintiff has submitted that plaintiff is owner of the suit property by virtue of registered GPA, agreement to sell thereby his father purchased suit property from one Sh. Hari Singh and he enjoyed
-7- Kalyan Dass Vs. DDA the suit property during his life time and after his death suit property devolved upon the plaintiff and since then plaintiff is in possession of the suit property. Ld. counsel for plaintiff has further submitted that there is a dispute between the occupant of adjacent plot No. D-3 and the official of the DDA. Due to dispute between them DDA demolished construction raised by owner of plot No. B-3 but at the same time inadvertantly official of DDA demolished the some portion of suit property. Ld. counsel for plaintiff has further submitted that the official of DDA further threatened the plaintiff to demolish entire portion of suit property.
Plaintiff has claimed ownership as well as possession of suit property. Let me examine first whether plaintiff is the owner of the suit property. In order to prove his ownership plaintiff has placed on record certain documentary evidences as such GPA, executed by one Sh. Hari Singh in favour of father of plaintiff which has been marked as mark Y and agreement to sell entered between Hari Singh and father of plaintiff and same has been marked as Ex. PW 2/2. Apart from these documents plaintiff has placed on record Ex. PW 4/1 and Khatoni of year 1989-90 of village Gokalpur.
-8- Kalyan Dass Vs. DDA Plaintiff has deposed that his father purchased suit property consisting of structure of a room by way of GPA, agreement to sell, receipt, registered before Sub-Registrar concerned on 11/05/1983. He has further deposed that this suit property devolved upon him after the death of his father on 27/09/1990.
It is well settled that ownership of any immovable property can only be transferred by way of mode prescribed under section 54 of Transfer of Property Act. In the case in hand plaintiff has tried to establish his ownership by way of documents GPA, agreement to sell, receipt, etc. which are not valid documents for transfer of ownership. Hence, in absence of any valid documents necessary for transfer of ownership of immovable property, the plaintiff has been failed to establish his ownership.
In the document mark Y which is GPA executed by Sh. Hari Singh in favour of father of plaintiff, it has been shown that the suit property fallen in Khasra No. 513 situated at village Gokalpur in the abadi of near the Jyoti Colony Illaqa, Shahdara, Delhi. This document was executed on 11/05/1983. Defendant has placed notification of acquisition of land in Revenue Village
-9- Kalyan Dass Vs. DDA of Gokalpur, Shahdara, Delhi. Document Ex. DW 1/1 and Ex. DW 1/3 which are of year 1968 shows that land falling in Khasra No. 1124/513 and land falling in Khasra No. 1124/153 were acquired by the Government. These documents are sufficient to show that land situated in Khasra No. 513 were fragmented before 1968 hence these two documents contain the bifurcated Khasra No. of original Khasra No. 513. But documents executed by Sh. Hari Singh in year 1983 does not contain this division of Khasra No. of 513. It reflects that any transaction between Sh. Hari Singh and father of plaintiff was not pertaining to any specific piece of land because documents executed by Sh. Hari Singh shows only Khasra No. 513. There is nothing on record to show that why documents executed in year 1983 does not contain the bifurcated Khasra No. and same leads to inference that documents executed by Sh. Hari Singh in favour of father of plaintiff are bogous documents. Apart from this there is nothing on record to show the complete chain of transfer of land falls in Khasra No. 513 of Revenue village Gokalpur, Shahdara, Delhi. In view of these facts and reasons, I have no hesitation to say that plaintiff has been failed to establish his ownership of land situated in old Khasra No.
- 10 - Kalyan Dass Vs. DDA 513 of Revenue Village, Gokalpur, Shahdara, Delhi.
Now, let me examine whether plaintiff is in possession of suit property. On the point of possession plaintiff is the key witness of his case. Other hand, defendant has produced official witnesses in witness box to prove the fact that encroachment upon the suit property by plaintiff has been removed and suit property has been bounded by wire. In the plaint plaintiff has averred that his father enjoyed the suit property during his life time and after his death this property devolved to plaintiff by way of succession and in year 1987 colony Harijan Basti, West Jyoti Nagar, Loni, Shahdara, Delhi in which suit property situated has been approved by the Govt. of NCT of Delhi and Civil amenities were provided to the residents of the colony. Plaintiff has further averred that some portion of the suit property was demolished by the defendant inadvertantly and further it was threatened by the officials of the defendant that they demolish and merge the suit property with adjacent plot. Other hand, on the point of possession defendant has alleged that plaintiff tress-passed and encroached upon the suit property without any right or title and made some fresh construction which was demolished by the DDA and now same is
- 11 - Kalyan Dass Vs. DDA with defendant.
On the point of possession plaintiff has deposed on the line of plaint. In the cross-examination plaintiff has denied the suggestion that he is not in possession of suit land after the demolition carried out by DDA in 2001. In my opinion physical possession of any person on immovable property can be determined by the manner of the use and enjoyment of property. Plaintiff has nothing stated about the manner in which he has been enjoying the suit property. Mere oral statement that he is in possession is not sufficient to establish the factum of possession over the suit property. Other hand, defendant witness Mr. Satvir Singh, Patwari has deposed that plaintiff tress-passed and encroached upon the suit property which was removed by DDA on 17/02/2001 and thereafter suit property was bounded by DDA and same is now in possession and rests with DDA. I find no reason to convince myself as to why official witnesses would tell lie or false regarding possession over the suit property.
In the oral evidence given by PW 1 Vinay Kumar Jain there is nothing to show that the plaintiff is in physical possession of suit property. Apart from this in order to establish his
- 12 - Kalyan Dass Vs. DDA possession over the suit property the plaintiff has placed on record two electricity bills Ex. PW 2/4 and Ex. PW 2/5 but I find that these bills are not related to plaintiff or suit property. Hence, these bills are of no importance or relevancy. In view of above mentioned reasons and discussion, I find that plaintiff has miserably failed to establish his physical possession over the suit property.
In view of above discussions it is hold that plaintiff has failed to establish his ownership as well as possession over the suit property. Hence, this issue is decided against the plaintiff and in favour of defendant.
Issue 3 : Whether suit land falls in khasra No. 513 and 514 min in village Gokalpur which stands acquired and has been placed at the disposal of DDA? OPD Defendant has proved on record notification of the acquisition of land falls in Khasra No. 513 & 514 min village Gokalpur. It is not in dispute that DDA got certain land after acquisition of the same by the Government in village Gokalpur. There is no sufficient evidence to establish whether the suit property falls in Khasra No. 513 & 514 min in Village Gokalpur or
- 13 - Kalyan Dass Vs. DDA in any other Khasra which was not acquired by DDA or Government. Whether a piece of land falls in Khasra No. 513 & 514 min or in any different Khasra same can be decided by demarcation of disputed land. In the case in hand in absence of any demarcation of disputed land it can not be ascertained that suit property falls in the Khasra of which land as already been acquired by Government and handed over to the DDA for disposal. Since, plaintiff has been failed to establish his ownership and possession as hold on finding on issue no. 1 hence, present issue has lost its importance. Accordingly this issue is dispossed off. Issue 4 : Whether plaintiff is entitled for the relief of injunction as prayed for? OPP In view of finding on issue no. 2 the plaintiff is not entitled for relief of injunction as prayed for. Hence, this issue is decided against the plaintiff and in favour of defendant. Issue 5 : Relief In view of discussion, observation and findings on above issues, this suit is dismissed.
Decree sheet be prepared accordingly.
File be consigned to Record Room.
- 14 - Kalyan Dass Vs. DDA
Announced in the open court
Dt. 25/02/2010 (ANIL KUMAR)
ACJ/ARC (NE),
KKD COURTS,
DELHI.
- 15 - Kalyan Dass Vs. DDA