Delhi District Court
Sh. Karan Kohli vs Delhi Development Authority on 11 November, 2019
IN THE COURT OF SH. RAJINDER SINGH
SCJ/RC(WEST), TIS HAZARI COURTS, DELHI
MCA No. 02/18
In the matter of:
Sh. Karan Kohli,
S/o Late Sh. Gulshan Kumar Kohli,
C42, Manak Vihar Extension,
VillageTihar, Subhash Nagar,
Delhi. .............Appellant/Plaintiff
Vs.
Delhi Development Authority,
Through its Vice Chairman,
Vikas Sadan, INA, New Delhi. .......Respondent/Defendant
Date of institution of appeal : 27.12.2017
Date of reserving order : 29.07.2019
Date of pronouncement : 11.11.2019*
(*On 29.07.2019, four weeks time was given to the the parties to furnish written submissions
and the matter was adjourned for order on 04.09.2019. On 04.09.2019, no time was left as the
undersigned was dictating judgment in another matter bearing RC/ARC No.16/18 titled as
Satpal Singh Sarna Vs. Satya Prakash Bansal and therefore the matter was adjourned for
04.10.2019. On 04.10.2019, no time was left as the undersigned was dictating judgment in CS
No.13339/16 titled as M/s Earth Enterprises Vs. M/s Sharma Traders and the matter was
adjourned for order on 11.11.2019).
APPEAL AGAINST THE ORDER DATED 19.12.2017 PASSED BY LD.
CIVIL JUDGE02 (WEST) ON THE APPLICATION UNDER ORDER
XXXIX RULE 1 AND 2 CPC
ORDER
1. The present appeal has been filed against the order dated 19.12.2017 passed by Ld. Civil Judge02 (West), Tis Hazari Courts. Vide MCA No.02/18 Karan Kohli Vs. DDA Page..... 1/11 this impugned order, Ld. Trial Court dismissed the application of the appellant/plaintiff, under Order XXXIX Rule 1 and 2 CPC.
2. BRIEF FACTS: Ld. Trial court summarized the facts as follows: 2.1 It is stated on behalf of the plaintiff that the plaintiff is the owner and in possession possession of the property bearing no.C42, Manak Vihar Extension, Village Tihar, Subhash Nagar, Delhi, on the basis of registered sale deed dated 09.09.1999 executed by the father of the plaintiff duly registered vide document no.6260, Additional Book No.1, Volume No.9330, Pages111 to 114 registered on 13.09.1999 in the office of SubRegistrarII, Delhi.
2.2 It is further stated that the suit property has been assessed to property tax in the record of MCD in the name of the plaintiff since 1999. It is also submitted that the electricity connection bearing K. No. 802 130329 has been installed in the suit property in the name of Sh. Rajinder Kalra, since 1987. It is averred that one Sh. Gurmeet Singh Ahuja, the erstwhile owner of the suit property, filed a suit for permanent injunction regarding the suit property bearing Suit no. 7131/16 (old No. 270/14) on 28.06.1988 titled as 'Sh. Gurmeet Singh Ahuja Vs. DDA'.
2.3 It is further submitted that after purchase of the suit property,
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the plaintiff filed an application under Order 22 Rule 10 read with Section 151 CPC for substitution of the name of the plaintiff in place of Sh. Gurmeet Singh Ahuja in the said suit. It is further submitted that the said application under Order 22 Rule 10 CPC was dismissed on 18.04.2016.
2.4 It is further submitted that a review application under Order 47 rule 1 CPC for review of order dismissing the application under Order 22 Rule 10 CPC was filed and the same was dismissed vide order dated 27.09.2016. It is further submitted that the said suit was dismissed in default on 19.05.2017. It is submitted that the total area of the suit property is 87 sq. yards, which comprises of an area of 30 sq. yards, which falls on the back side of the property existing towards the park of the DDA. It is submitted that the whole of the area 87 sq. yards of the suit property is built up and the property was constructed as existing about 30 years ago. It is submitted that the plaintiff purchased the said property as a built up plot and no further construction has been raised by the plaintiff over the suit property. It is alleged that after the dismissal in default of the civil suit titled as 'Sh. Gurmeet Singh Ahuja Vs. DDA', the staff/officials of the defendant/DDA have started visiting the suit property and have started causing harassment to the plaintiff and have threatened to demolish the back side part measuring 30 sq. yards existing towards the DDA park.
MCA No.02/18Karan Kohli Vs. DDA Page..... 3/11 2.5 It is further alleged that the officials of defendant/DDA visited
the suit property on 19.06.2017. 28.06.2017 and 05.08.2017 and threatened to interfere and to demolish the said 30 sq. yards. It is submitted that the plaintiff is entitled to protection of Section3 of the National Capital Territory of Delhi Laws (Special Provisions) Act, 2007 whereby the local authorities are restrained from taking any action against any encroachment or unauthorised development in respect of the properties which are in existence since the year 2007. Certain judgment of the Hon'ble High Court of Delhi are placed on record whereby the Hon'ble High Court has directed the DDA to not adopt a policy of pick and choose with respect to the occupants of the unauthorised colonies. The plaintiff has thus prayed for adinterim injunction against the defendant/DDA restraining the defendant/DDA restraining the defendant from demolishing the said 30 sq. yards lying at the back side of the suit property.
2.6 In reply, the application has been vehemently opposed by the defendant. It is averred that the plaintiff has encroached the said 30 sq. yards in the suit property which is a part of acquired land of Khasra No.1638 min of Revenue Estate of Village Tihar. It is averred that the Khasra No.1638 min (8 Bighas 15 Biswas) was acquired vide Award No.1794. It is further stated that the physical possession of the same was handed over to the defendant by LAC/L&B on 06.05.1965 and the same was further placed at the disposal of DDA under Section 22(1) of DD Act MCA No.02/18 Karan Kohli Vs. DDA Page..... 4/11 1967 vide notification no. F.8(49)/63/L&H(IV) dated 30.11.1965. It is claimed that any kind of sale purchase of acquired Government land is avoid abnitio. It is also stated that the plaintiff has annexed the copy of the sale deed which is having the reference of Khasra No.1639. It is claimed that the seller does not have any right, title or interest even in Khasra No.1639 as the same is also Government acquired land. It is averred that one Sh. Manak Chand filed a suit bearing no.47/94/73 against the defendant in respect of various Khasras including the land in Khasra No.1639 which was dismissed on 24.02.1996 by the Ld. Predecessor of this Court. It is also stated that in the suit titled as Gurmeet Singh Ahuja Vs. DDA the application under Order 22 Rule 10 CPC filed on behalf of the plaintiff seeking impleadment in that suit wherein similar relief was sought was dismissed. It is also stated that while dismissing the application of the plaintiff, the Hon'ble Court held that the sale deed placed on record by the plaintiff in that case failed to devolve any valid title on the plaintiff herein. It is thus claimed that the plaintiff has no right, title or interest over the said 30 sq. yards and thus the application is liable to be dismissed.
3. ARGUMENTS OF THE PARTIES: 3.1 It was argued on behalf of the appellant/plaintiff that the suit property is situated in Khasra No.1639. Award No.1794 relied upon by the respondent/defendant pertains to Khasra No.1638 and not Khasra MCA No.02/18 Karan Kohli Vs. DDA Page..... 5/11 No.1639. In the sale deed dated 09.09.1999 made by father of the appellant/plaintiff in favour of the appellant/plaintiff, also Khasra number of the suit property is mentioned as 1639.
3.2 Written submissions filed by the plaintiff/appellant perused. It is stated that the properties no.C40B to C45 are in symmetry. The suit property no.C42 is also situated between these properties. The suit property is not beyond the straight line in which all the properties fall. It shows that there is no encroachment by the appellant/plaintiff with regard to the suit property. There is also mention of judgments relied upon by the appellant/plaintiff regarding ''pick and choose'' policy adopted by the respondent/defendant.
3.3 In response to court query dated 28.01.2019, Ld. Counsel for the respondent/defendant submitted that only 30 sq. yards of the suit property allegedly falling in Khasra No.1638 is the targeted area. With regard to the court questions dated 29.07.2019, it is replied that in RTI application's reply dated 23.04.2007, it was stated that the property no.C40 just near the suit property falls in Khasra No.1639 and the same is not DDA land. With regard to the second question, it is stated that the appellant/plaintiff's father is suffering from heart disease. He wanted to settle property issue among his children during his lifetime. Due to this reason, sale deed regarding the suit property was made by the appellant/plaintiff's father in his favour.
MCA No.02/18Karan Kohli Vs. DDA Page..... 6/11 3.4 It was submitted on behalf of the respondent that targeted
area 30 sq. yards out of the suit property falls in Khasra No.1638. This fact is stated on the basis of file no.F7(68)2017/LN/WZ. The appellant/plaintiff has not filed any document to show that the entire suit property falls in Khasra No.1639.
4. COURT'S FINDINGS AND REASONING: 4.1 I have seen the impugned order. Ld. Trial court observed that in view of Award No.1794 relied upon by the respondent/defendant, ownership of the disputed 30 sq. yards of area vested in the respondent/defendant. It raised cloud on the title of the appellant/plaintiff with regard to the suit property. As such, appellant/plaintiff should have sought declaration of ownership regarding the entire suit property including the disputed 30 sq. yards.
4.2 Ld. Trial court has not mentioned the judgment Anathula Sudhakar vs. P. Buchi Reddy (Dead) By LRs & Ors on 25 March, 2008, Appeal (civil) 6191 of 2001 specifically, though it appears that the aforenoted observation of the Ld. Trial court is based upon the said judgment Anathula Sudhakar vs. P. Buchi Reddy (Dead) By LRs & Ors.
4.3 In the present case, the main dispute is with regard to the portion measuring 30 sq. yards out of the suit property. It is the claim of the appellant/plaintiff that the entire suit property falls in Khasra MCA No.02/18 Karan Kohli Vs. DDA Page..... 7/11 No. 1639. On the other hand, respondent/defendant contends that the said 30 sq. yards, which is targeted the area, is situated in Khasra No.1638, which has been acquired vide Award No.1794. In support of his contention, appellant/plaintiff has relied upon the sale deed dated 09.09.1999 wherein Khasra number of the suit property measuring 87 sq. yards is mentioned as 1639. Prior to that one GPA dated 30.01.1995 with regard to the suit property was executed by Sh. Guljar Singh in favour of Sh. Gulshan Kohli, father of the plaintiff/appellant. In this GPA also, Khasra number of the suit property, measuring 87 sq. yards, is mentioned as 1639. Appellant/plaintiff has also relied upon RTI reply dated 23.04.2007 wherein it is stated that the property no.C40 falls in Khasra no. 1639min. In my considered opinion, this RTI reply is not conclusive evidence to show the location of the suit property. Every Khasra has a boundary. It is quite possible that the property no.C40 might be falling in Khasra No.1639, whereas the adjacent property (in this case the suit property) may be falling in some other khasra.
4.4 In the present case, the main dispute is with regard to the identity of the said 30 sq. yards of area. Appellant/plaintiff claims that this area falls in Khasra no. 1639, whereas respondent/defendant claims that this 30 sq. yards of area of falls in Khasra No.1638, which has already been acquired. Coming back to the sale deed dated 09.09.1999 and GPA dated 30.01.1995 (with regard to the suit property), respondent/defendant has not been able to show whether during the year MCA No.02/18 Karan Kohli Vs. DDA Page..... 8/11 1995 and 1999, the present appellant/plaintiff or any predecessorin interest had any specific reason to be apprehensive about DDA's claim in the said 30 sq. yards and in view of such apprehension either the appellant/plaintiff or any predecessorininterest would try to create falls evidence by mentioning Khasra No.1639 in the sale deed dated 09.09.1999 and GPA dated 30.01.1995.
4.5 From perusal of the impugned order, it is not clear whether the point regarding the identity of the said targeted area of 30 sq. yards was specifically agitated before the Ld. Trial court. It appears that this point was not specifically agitated before the Ld. Trial Court, thus Ld. Trial court did not have the occasion to make any observation regarding the dispute pertaining to the identity of the said targeted area of 30 sq. yards.
4.6 Plaintiff has relied upon Section 3 of the National Capital Territory of Delhi Laws (Special Provisions) Act, 2007. Copy of this Act is available in the trial court record. The moratorium regarding demolition of unauthorized construction has been extended from time to time. Ld. Trial court has specifically dealt with this point. Ld. Trial court held that in the present case, plaintiff is claiming to be the owner of the said 30 sq. yards of area. He has not claimed himself to be any encroacher on the said land. As such, the said Act would not apply to the present case.
MCA No.02/18Karan Kohli Vs. DDA Page..... 9/11 4.7 In my considered opinion, in the present matter, the main
issue is with regard to the identity/location of the said targeted area of 30 sq. yards. Burden is upon the appellant/plaintiff to show that the said 30 sq. yards of area is falling in Khasra No.1639 as claimed by him and the same is private property, not acquired by DDA. At this stage, there is no material before the court to see whether the disputed area 30 sq. yards falls within Khasra No.1639 as claimed by the plaintiff/appellant or it falls within Khasra No.1638 as claimed by the respondent/defendant.
4.8 Only documents regarding the location of the suit property including the disputed portion are the sale deed dated 09.09.1999 and GPA dated 30.01.1995. These are prima facie in favour of the appellant/plaintiff.
4.9 Appellant/plaintiff is admittedly occupying the entire suit property. As such, balance of convenience is in favour of the appellant/plaintiff.
4.10 The entire area of 87 sq. yards is built up property. If a portion measuring 30 sq. yards is demolished, it will cause irreparable loss to the plaintiff/appellant. In view of the above, the impugned order dated 19.12.2017 is set aside. Appeal stands allowed.
4.11 Respondent/defendant and its officials are restrained from
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carrying out any demolition activities in the suit property till final disposal of the suit.
5. Parties are directed to appear before the Ld. Trial court on 20.12.2019 at 2:00 PM.
6. Copy of this order alongwith TCR be sent back to the Ld. Trial court.
7. Appeal file be consigned to record room after due compliance.
Digitally signed by RAJINDER RAJINDER SINGH
SINGH Date: 2019.11.14
15:08:10 +0530
PRONOUNCED IN THE OPEN (RAJINDER SINGH)
COURT ON 11.11.2019 SCJ/RC(WEST)/ DELHI
.
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