Delhi District Court
The Brief Background Of The Present Case ... vs Mahabir Prasad And Ors." Air 1966 (Sc) ... on 8 June, 2018
In the Court of Shri V.K. Gautam : Additional Senior Civil Judge of
Central District at Tis Hazari Courts, Delhi
Suit No.1504/2016
In the matter of :-
Shri Naresh Chandra,
S/o Shri Jagdeshwar Dayal,
R/o E-152, Saket, New Delhi
........Plaintif
VERSUS
1. Rehabilitation Ministry Employee
Co-operative House Building Society Ltd.,
Jaisalmer House, New Delhi
Through its President Shri Anupam Dhar
Also at :
Shivalik Colony, Malviya Nagar, New Delhi
2. Union of India,
Through Land & Development Officer,
Ministry of Rehabilitation,
Ministry of Urban Development & Poverty
Alleviation, Nirman Bhawan, New Delhi-110001
3. Delhi Development Authority,
Through its Vice Chairman,
Vikas Sadan, I.N.A., New Delhi
4. Government of NCT of Delhi,
Through Land Acquisition Collector,
(Pertaining to Village Hauz Rani
Patti Hamid Sarai, Tehsil Mehrauli,
Delhi) Office of Deputy Commissioner
At Mehrauli, Badarpur Road, Saket,
New Delhi
.....Defendants
CS No. 1504/16 Page no. 1 of 55
Date of institution : 07.01.1987
Reserved for Judgment : 06.06.2018
Date of decision : 08.06.2018
Suit for Declaration and Permanent Injunction
JUDGMENT
1. The brief background of the present case is that initially the plaintiff had filed two suits against the defendant no.1 i.e. Suit no.127/99 (1059/06/87) for permanent injunction and Suit no.126/99 for declaration and permanent injunction. Since the Prayer A in Suit No.126/99 was similar to the Prayer C in the Suit no.126/99 apart from other reliefs, both the suits were consolidated vide order dated 19.02.2002 and the proceedings were recorded in Suit No.126/99. The learned Predecessor of this Court vide common judgment dated 19.08.2011, decreed both the suits. The defendant no.1 herein preferred two Regular Civil Appeal being RCA No.15/11 and RCA No.16/11 against the above said common judgment dated 19.08.2011. The learned Appellate Court vide its order judgment dated 23.06.2014 set aside the said common judgment and remanded back the matter with direction to implead DDA and Union of India and to give them opportunity to file their respective written statements and thereafter adjudicate upon in accordance with law. Thereafter in pursuance of the directions of the learned Appellate Court, the plaintiff filed amended memo of parties on 11.08.2014 thereby including the names of UOI and DDA in the memo of parties as the defendants no. 2 and 3 respectively. After service, both the defendants i.e. the defendant no. 2 (UOI through L&DO) and the defendant no.3 (DDA) filed their respective written statement.
CS No. 1504/16 Page no. 2 of 55 Plaintif's Case
2. In brief, the case of the plaintiff is that Shri Subh Ram, son of Shri Pyare was the owner and in possession of the land bearing Khasra Nos. 27 (6 bighas and 13 biswas) and 29 (8 bighas and 10 biswas) measuring in all 15 bighas and 3 biswas situated in Village Hauz Rani, Patti Hamid Sarai, Tehsil Mehrauli, New Delhi. It is further stated that the land comprised in Khasra Nos. 27 min (5 bighas and 13 biswas) and 29 (8 bighas and 10 biswas) measuring in all 14 bighas and 3 biswas situated in the above village was notified for acquisition vide Notification No.F-1(172)/48/LSG (ii) dated 13.09.1948 for the public purpose and offer regarding the market value of the said land was made by the competent authority i.e. Land Acquisition Collector, DDA. After the acquisition of the land, mutation no. 32 was sanctioned in favour of the Government and in the column of cultivation the entry was recorded in the name of Ministry of Rehabilitation. A titamma was was also prepared upon the said mutation. It is further stated that the land of Khasra no.27/1 measuring 1 bigha was not acquired at all by the Government and the same remained in the possession of Shri Subh Ram. An application before the Tehsildar, Mehrauli was moved by Shri Subh Ram for demarcation of the Khasra no.27 and 29. Shri Subh Ram by means of a sale deed dated 04.09.1986 duly registered in the office of Sub Registrar, New Delhi sold the land bearing Khasra no. 27 min (27/1) measuring 1 bigha situated in the Village Hauz Rani, Patti Hamid Sarai, Tehsil Mehrauli, New Delhi (hereinafter referred to as 'the suit land') to the plaintiff and had delivered the actual physical possession of the suit land to him. It is further stated that on 11.09.1986, the plaintiff stored considerable building material for the purpose of constructing a boundary wall around the suit land by employing CS No. 1504/16 Page no. 3 of 55 labourers and masons and started the construction of the boundary wall around the suit land. The President of the defendant no.1, namely, Shri Anupam Dhar threatened the plaintiff against raising any construction over the suit land. It is further stated that on 12.09.1986 the plaintiff constructed the boundary wall of the height of 6 feet around the suit land by leaving two gates on the Northern and Southern sides and also fixed steel angles on the said wall and made wire fencing upto the height of 2 feet on the said boundary wall. In the evening of the same day, the President of the defendant no.1 along with his employees, associates and labourers came on the suit land and they tried to demolish the wall by removing the fencing forcibly but they were not successful in their illegal designs. It is further stated that an application for the sanction of the mutation in his favour was filed by the plaintiff and vide mutation no.2172 decided on 27.10.1986, the mutation of sale was sanctioned in favour of the plaintiff. It is further stated that the plaintiff filed suit no.455/186 against the defendant no.1 for permanent injunction and the learned Sub Judge 1 st Class Delhi on the application of the plaintiff under Order 39 Rules 1 & 2 CPC read with Section 151 CPC passed status qua order vide order dated 17.09.1986. On 15.09.1986, SI Rajesh Kumar Police Station Hauz Khas had sent a complaint under Section 145 CrPC to the Court of the concerned SDM regarding prevailing of considerable amount of tension and there was every likelihood of breach of peace. The concerned SDM by order dated 17.09.1986 in response to the Kalandra received from the SHO, PS Hauz Khas directed both the parties to maintain status quo. It is further stated on 21.09.1986, the defendant no.1 through its workmen and labourers demolished portion of the boundary wall. The SDM vide order dated 30.09.1986 came to the conclusion regarding dispute of the property and in exercise of power under Section 145 CS No. 1504/16 Page no. 4 of 55 CrPC directed both the parties to attend the Court on 27.10.1986. It is further stated that the suit land was neither allotted to the defendant no.1 nor the same was ever delivered to it. Hence, the present suit has been filed seeking decree of declaration to the effect that the plaintiff is the absolute owner and in lawful possession of the suit land and was in possession of the same uptill the time the same was attached by the learned SDM in the proceedings under Section 145 and 146 CrPC and after attachment, the learned SDM, South Delhi is holding the possession of the suit land for and on behalf of the plaintiff. It is also prayed that the defendant and its President, Vice President, Members, Associates, Staff, Workmen and Labourers be restrained from illegally interfering and forcibly dispossessing the plaintiff from the suit land as well as from forcibly and illegally demolishing the constructions existing thereon.
Defendants' Case
3. The defendant no.1 has filed his written statement wherein it is contended that the suit is barred by limitation as Shri Subh Ram never objected the acquisition of land. It is stated that the present suit is not maintainable as admittedly the possession of the land is not with the plaintiff and he has not sought a decree of possession. It is further stated that the suit land stood acquired since the year 1948 and the said acquisition has never been challenged. It is further stated that on 06.05.1970, the Department of Rehabilitation allotted 60 acres of land to the defendant no.1 Society for the same being developed into a residential colony for its members. The defendant no.1 Society had paid more than Rs.20 lacs to the Department towards the part of cost of the allotted land. As a result of the agreement between the society CS No. 1504/16 Page no. 5 of 55 and Government, the area was reduced to 45 acres and the Society paid an amount of Rs.1.15 crores to the Government as cost of the land. The said deed has so far not been issued though the possession was given to the Society. It is further stated that the Government handed over the physical possession of 45 acres of land which included the land of Khasra no.27 to the Society vide document dated 20.09.1982. Thereafter the Society got a lay out plan of the colony approved from the DDA and engaged M/s. C.P. Kukreja & Associates for the purposes of preparaing the lay out plan and for developing the land. After the lay out plan was approved, the contract of developing the land i.e. for laying underground water and sewage pipes system, constructing the roads etc. were given to one M/s. R.R. Mallick & Co, contractors, who has already completed most of work. Since the suit land was always in possession of the Society, huge underground water pipes and sewage pipes were laid by the contractor after digging the land in accordance with the service plans approved by the MCD. A road constructed by the Society passing through the suit land is also in existence. It is further stated that the first party/plaintiff has committed trespass with the use of physical force illegally and unlawfully by entering into the possession of the suit land on 11.09.1986 and on subsequent days by bringing goondas with him and when the security guard posted by the defendant no.1 stopped them, the plaintiff threatened them and collected building material on the suit land and defendant no.1 made three police complaints to this effect but in vain. The defendant no.1 was dispossessed illegally of its possession from the suit land on 11/12/13 th September, 1986. There had been imminent danger of breach of peace because the plaintiff had been threatening with dire consequences to the office bearers and members of the defendant no.1 Society and the members of the Society also CS No. 1504/16 Page no. 6 of 55 became very furious because their land had been tress-passed. It is denied that the plaintiff or Subh Ram had been in possession of the suit land. Shri Subh Ram is out of possession since the acquisition. In case Shri Subh Ram had been cultivating the land how the Society could have been developed the suit land and laid underground water and sewage pipes and could built the road upon it. No explanation has been given by the plaintiff as to how this development was carried out by the defendant no.1. The suit land is not in possession of the plaintiff and the proceedings under Section 145 CrPC are still pending. The case of the criminal tress-pass is also been registered against the plaintiff which he has not disclosed in the plaint. It is further stated that the entire chunk of land was acquired and its measurement if wrongly given due to some omission does not make any portion of the acquired land as unacquired. It is further stated that wherever there is any difference between the chauhaddi and the area of the land, chauhaddi/boundary prevails. It is further stated that the plaintiff who is a property broker by profession in connivance with the petty revenue officials tried to temper with the revenue record so as to show the evidence in his favour. It is further stated that the alleged demarcation is absolutely fictitious and had been made at the behest of the plaintiff. The defendant no.1 has denied the other allegations of the plaint and has prayed for the dismissal of suit.
4. The defendant no.2 (Land and Development Office) has filed its written statement wherein it is contended that the suit land i.e. Khasra No.27/1 of Patti Hameed Sarai was never acquired nor under the occupation/jurisdiction of the defendant no.2 where as the referred developed Plot bearing no.B-143 to B-147 which is not a part of Khasra No.27/1 of Patti Hameed Sarai falls under the boundary of CS No. 1504/16 Page no. 7 of 55 Rehabilitation Ministry Employee Cooperative House Building near Malviya Nagar, New Delhi which is the part of the land admeasuring 45 acres which was acquired and further allotted to the Rehabilitation Ministry Employee Co-op House Building Society, Near Malviya Nagar, New Delhi vide allotment dated 7/9 th June, 1982. It is further stated that the referred Khasra No.27/1 of the Patti Hameed Sarai never acquired nor handed over to the defendant no.1 whereas referred developed property has been duly acquired by the Government in accordance with law. The possession was handed over to the Ministry of Rehabilitation Employees Co-op House Building Society for allotment of its bonafide members as well as other social facilities. Accordingly, the plaintiff has no right, title or interest in the referred developed suit property and the present suit is, therefore, not maintainable. Admittedly, no notice under Section 53B of the Delhi Development Act, 1957 has been served upon the defendant no.2. It is further stated that neither the site plan of the suit property has been filed nor proper identity of the suit property has been stated either in the plaint or in any of the documents copies whereof have been sent to the defendant no.2. In the absence of proper identity of the suit property, neither the suit is maintainable nor the suit property can be properly identified nor can a proper decree be passed with respect thereto. The suit property has not been assessed properly for the purposes of jurisdiction taking into account the market value of the 1 bigha of the precious land situated in the prestigious area of South Delhi. Since the main relief of the plaintiff happens to be the possession of the suit land with other reliefs, therefore, the suit should have been assessed at the market value of the land and, accordingly, the plaintiff is liable to pay court fees. The suit has not been properly valued for the purpose of court fee and jurisdiction. It is further stated that in the garb of declaration and CS No. 1504/16 Page no. 8 of 55 injunction, the plaintiff in fact claiming the possession of the suit property. However, since the relief of possession has not been claimed, therefore, the suit is barred under Order 2 Rule 2 and 3 CPC. The defendant no.2 has denied the other allegations of the plaint and has prayed for the dismissal of suit.
5. The defendant no.3 i.e. Delhi Development Authority (DDA) has also filed its written statement wherein it is contended that the suit property has been duly acquired by the Government in accordance with law and the possession was also duly taken over. Accordingly, the plaintiff has no right, title or interest in the suit property. Admittedly, no notice under Section 53B of the Delhi Development Act, 1957 has been served upon the defendant no.3. It is further stated that neither the site plan of the suit property has been filed nor proper identity of the suit property has been stated either in the plaint or in any of the documents copies whereof have been sent to the defendant no.2. In the absence of proper identity of the suit property, neither the suit is maintainable nor the suit property can be properly identified nor can a proper decree be passed with respect thereto. The suit property has not been assessed properly for the purposes of jurisdiction taking into account the market value of the 1 bigha of the precious land situated in the prestigious area of South Delhi. Since the main relief of the plaintiff happens to be the possession of the suit land with other reliefs, therefore, the suit should have been assessed at the market value of the land and, accordingly, the plaintiff is liable to pay court fees. The suit has not been properly valued for the purpose of court fee and jurisdiction. It is further stated that in the garb of declaration and injunction, the plaintiff in fact claiming the possession of the suit property. However, since the relief of possession has not been claimed, CS No. 1504/16 Page no. 9 of 55 therefore, the suit is barred under Order 2 Rule 2 and 3 CPC. The defendant no.3 has denied the other allegations of the plaint and has prayed for the dismissal of suit.
6. Separate replication was filed by the plaintiff to the written statement of the defendants no. 2 to 3 wherein the contents of the plaint have been reiterated and the contentions of the defendants in their written statement have been denied except the admissions made.
Issues
7. The following issues were framed by my learned Predecessor vide order dated 01.07.2002 :
1. Whether this Court has no jurisdiction to try and entertain the present suit in view of provisions of Delhi Land Reforms? OPD
2. Whether the suit of the plaintiff is maintainable in the present form? OPP
3. Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD
4. Whether the suit of the plaintiff is within limitation? OPP
5. Whether the suit land measuring 1 bigha in Khasra no.27/1, Village Hauz Rani, Delhi is not an acquired land ? OPP
6. Whether the plaintiff was in possession of the land till 27.10.1986? OPP CS No. 1504/16 Page no. 10 of 55
7. Whether plaintiff is entitled to the decree of declaration of owner, in respect of the suit land, as prayed for? OPP
8. Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? OPP
9. Relief.
Plaintif's Evidence
8. The plaintiff in support of his case examined himself as PW-1, ASI Moti Singh as PW2, Shri T.S. Srivastava as PW-3, Shri Vinod Kumar as PW-4, Shri Chhattar Pal Singh as PW-5, Shri Onkar, Patwari as PW-6, Shri J.S. Meena as PW-7 and Shri Balkishan as PW-8.
9. The plaintiff filed additional evidence by way of affidavit and examined himself as PW-1 again. The affidavit was exhibited as additional Ex.PW-1/A alongwith the additional documents which were filed by the plaintiff. Copy of Tatimma with Hindi Translation is Additional Ex.PW1/1. The Jamabandi for the year 1960-61 is already exhibited as Ex.PW1/2. Copy of the Gazette Notification dated 08.03.1979 is exhibited as additional PW-1/2; site plan was exhibited as additional PW-1/3; certified copy of the handwritten handing over taking over possession was exhibited as additional PW-1/4; Copy of the order of the Tribunal dated 11.05.2012 was exhibited as additional PW- 1/5; copy of the status report with site plan dated 14.03.2012 was exhibited as additional PW-1/6; copy of the judgment of the Tribunal dated 04.06.2012 was exhibited as additional PW-1/7; copy of the order of the court of Sh. R.K.Gauba, the then ld. District Judge, Saket, New Delhi dated 07.02.2013 was exhibited as additional PW-1/8; copy of the sanction letter dated 25.07.2013 issued by South Delhi CS No. 1504/16 Page no. 11 of 55 Municipal Corporation thereby sanctioning the building plan was exhibited as additional PW-1/9; the report of the officials of the DDA supplied to the plaintiff were exhibited as additional PW-1/10(Colly); copy of the order of the court dated 04.01.2011 was exhibited as additional PW-1/11; copy of the settlement dated 23.09.2011 before the police authoirites was exhibited as additional PW-1/12; copy of the letters and report of copying agency of destroying the record of FIR bearing No. 800/86 U/s 447 IPC was exhibited as additional PW-1/13 (Colly).
Defendant's Evidence
10. The defendant no.1 has examined Shri Anupam Dhar as DW-1, Shri Virender Kumar Singh as DW-2, Shri Jagminder as DW-3, Shri Kali Charan as DW-4, Shri M.K. Soni as DW-5, Shri Shiv Hari as DW-6 and Shri Rajender Pal as DW-7. The defendant No.1 has relied on the documents Ex.D1 to Ex. D.17.
11. It is pertinent to mention that after remanding back the matter by the learned Appellate Court vide its judgment dated 23.06.2014, the defendant no. 2 as well as the defendant no.3 had moved their respective application under Order 14 Rule 5 and Order 18 read with Section 151 CPC and under Order 14 Rule 5 read with Section 151 CPC which were disposed of vide order dated 31.08.2017 and the defendants no.2 and 3 were allowed to cross-examine the PWs. Accordingly, the plaintiff filed his additional affidavit by way of evidence on 13.11.2017 and examined himself as PW1 and tendered his additional affidavit in evidence as Ex.PW-1/A and relied upon certain documents Ex.PW1/1 to Ex.PW1/13 (colly).
CS No. 1504/16 Page no. 12 of 55
12. The plaintiff relied on the documents Ex.PW-1/1 to Ex.PW-1/19; PW-3/1 to Ex. PW-3/7; Ex. PW-5/1 to Ex. PW-5/5; Ex. PW-6/1; Ex. PW-7/A (Colly); Ex. PW-8/1 and Ex. PW-8/2; additional document exhibited as Additional Ex. PW-1/1 to Ex. PW-1/13 including the site plan exhibit additional Ex. PW-1/3.
13. Thereafter the plaintiff was cross examined by the counsel for the DDA and the Union of India. Since there was no issue which was to be proved by the defendants, therefore, the defendant evidence was closed vide order dated 27.11.2017 and the case was fixed for final arguments.
14. Final arguments have been heard and record has been perused.
15. Now I shall give my issue-wise findings.
Findings
16. Issue No.1: The onus to prove this issue was upon the defendant but it has not been made out as to how the suit is barred under the provisions of Delhi Land Reforms Act. Moreover, the present suit is between the private parties who are litigating on the point as to who is the owner and in possession of the suit property therefore, the provisions of Delhi Land Reforms Act will not be applicable in the present case. This is a suit for declaration of the title of the suit property on the ground that the plaintiff had purchased it from its previous owner and defendant No.1 has nothing to do with it, whereas revenue court cannot decide the title and only the civil court is competent to decide the subject matter of the dispute. During the CS No. 1504/16 Page no. 13 of 55 course of arguments the learned counsel for the defendant has fairly conceded that this issue is redundant and be ignored. Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
17. Issue No. 2, 5, 6, 7 and 8:- These issues are taken up together being inter-connected and inter-dependent and requires appreciation of common facts and evidence. The points in controversy which are required to be answered are "whether the suit land was acquired land or not and if it was part of the acquired land, whether it was allotted to the defendant No.1 society and if not acquired to whom did it belong and lastly whether it was purchased by the plaintiff, if so its effect and when the land is not acquired can the DDA or the Land and Building Department allot and hand over possession to defendant No.1 society and can in the absence of any document of acquisition or allotment it can be said that the title of the land is conferred on the Land Acquisition Collector or DDA or Society and can the defendant No.1 society became owner merely on the alleged ground of laying of services falling in Khasra No. 27/1 now falling in Plots No. B-143 to B- 147". These questions are also to be adjudicated alongwith the question as to who was in possession of the suit land at the time of accrual of cause of action. If all these questions are answered in favour of the plaintiff then only he can be declared as owner of the property and decree of injunction can be passed against defendant No.1.
18. The learned counsel for the plaintiff has argued that Shri Anupam Dhar, President of defendant No.1 had filed evidence by way of Affidavit as DX. In his Cross Examination, he has admitted that the land of Khasra No. 27, Patti Hamid Sarai is not shown in Exhibit D-5 separately. He has further stated to be correct that the area of Khasra CS No. 1504/16 Page no. 14 of 55 No. 27 was 5 bigha & 12 or 13 biswa was allotted to the defendant. He also stated during his Cross Examination that he cannot tell how much land was acquired of Village Hauz Rani, Patti Hamid Sarai without consulting the records. He has further stated to be correct that entire area of Village Hauz Rani, Patti Hamid Sarai was lying vacant in the year 1986. He has further stated that he cannot tell as to how much land was left un-acquired of Village Hauz Rani, Patti Hamid Sarai at the relevant point of time. He has further stated that the plan was sanctioned by DDA in the year 1988-89 and that it might be correct that plan was sanctioned by DDA in the year 1989, at that time, present suit was pending. He has further stated that to his knowledge, no information was given as to pendency of present matter to DDA at the time of sanctioning the Layout Plan. He has further stated to be correct that they have not taken any permission from court regarding sanctioning of plan by DDA. He has further stated that the construction of buildings on Shivalik society land was started in the year 1991 to his recollection, the same is still continuing and that no permission was taken by the society from the court regarding construction of the society. He has further stated that the sewer, sewerage, back water, rain water and other basis amenities services were laid down much prior to filing of this case, after necessary permission from concerned Department. He has further stated that there was no need to take any No Objection from plaintiff before laying services nor any Notice was given before laying the service. He has further stated that they had not verified the revenue records as to in which khasra number, how much land was land was acquired and how much land was not acquired. He has further stated that they did receive one Notice when the plaintiff got demarcation, but we did not attend demarcation proceedings in favour of plaintiff and that it is correct that they have CS No. 1504/16 Page no. 15 of 55 knowledge that one bigha land was mutated in the name of plaintiff. He has further stated that they have not filed any Petition/Suit in this regard. He has futher stated that he cannot identify 5 bigha 13 biswa land of defendant in Khasra No. 27 in the Map Exhibit D-5. Same is in Block-B of the colony and that he cannot tell where is the suit land in three layout plan located. He has further stated to be correct that disputed land is still lying vacant and that it is correct that disputed portion is between Plot No. B-143 to B-14. He has further stated that the Proceedings under section 145 Cr.PC were started by SDM and Ultimately FIR was withdrawn. I cannot tell the names of members whose plots are under dispute. At one time, there were 650 members. I cannot tell about current members." In view of the statement of the defendant No.1 it is clear that the defendant No.1 is aware of the identity of the property in question right from the day one. The counsel for plaintiff has further argued on the documents pertaining to allotment dated 07/09.06.1982 (Ex. D-2). Layout Plan (Ex. D-8), alleged Service Plan Ex. D-9 to D-11 and Setback cum Demarcation Plan (Exhibit D-13).
19. The counsel for the plaintiff argued that Exhibit D-8 clearly shows that this is a Layout Plan of the colony which was sanctioned by DDA on 02.03.1985, but released on 16.01.1986. This plan clearly shows that no number was assigned to respective Plots in B-Block where the property of plaintiff falling in Khasra No. 27/1 is situated and even in other blocks of Shivalik he showed the Area Chart where the size of plot is 200 sq.yds.
CS No. 1504/16 Page no. 16 of 55
20. The learned counsel for the plaintiff has further argued that Ex. D-10 (i.e. drawings for sewerage Scheme), Water supply and Sewerage disposal Undertaking has sanctioned and released the Plan for Services on 11.03.1986. The other Plan for water supply was sanctioned on 07.01.1986 and 01.07.1986. The other plan for water supply was sanctioned on 07.01.1986 and 01.07.1986. The Plans clearly shows that alleged services were shown in this Plan is either on the front road or in the service lane behind the Plots and none of the services were passing either through the individual plots or beneath the individual plots including Plot No. B-143 to B-147 falling in Khasra No. 27/1 of the plaintiff. He has further contended that Plan Exhibit D-13, setback cum Demarcation Plan, society has submitted the Plan showing setback and demarcation plan of individual plots. Area Chart shows that sizes of the Plots falling in B-119 to B-151 is of the size of 190 sq.yds reduced from 200 sq.yds. in Plan Exhibit D-8 to 190 sq.yds in this plan and the same was sanctioned on 26.01.1989.
21. Learned Counsel for the plaintiff has further argued that no services can be laid down before the approval from competent authorities. All the services were to be laid down by the society in the area of colony before allowing the building activity by the competent authority in the area. Learned Counsel for the plaintiff has further contended that on the basis of the letters of the society, building activities were withheld in respect of Plots No. B-143 to 147 in Block-B, which is clearly marked red by the society in the plan, besides other plots in Block-A & C mentioned by the society, and released building activity in the remaining plots. Same is clearly reflected in the setback cum demarcation plan sanctioned and released by DDA on 22.03.1991 which is part of Exhibit D-13 and even in this plan the society CS No. 1504/16 Page no. 17 of 55 themselves have shown plots no. B-143 to B-147 thereby marking "Red". Learned counsel for the plaintiff further argued that the Area Chart shows that the size of plot from 200 yds. in Exhibit D-8 has been reduced to 190 sq.yds and that when the size of plot has been reduced in 1988-89, then it cannot be said that the number of plot has not been mentioned in the suit.
22. Learned counsel for the plaintiff has further argued that by the Offer No. 1027-A dt. 01.11.1962 (Exhibit. PW-7/A) land was acquired. It is clearly mentioned that Subh Ram S/o Pyare is the owner of land i.e. 27 min 5 bigha 13 biswa, Khasra No. 29, 8 bigha 10 biswa. On internal page No.12, it is mentioned Khasra 27, 6 bigha 13 biswa, decided by Arbitrator. Mentioning of word "min" on internal page No. 6, at Sr. No. 23 as 27 min 5 bigha 13 biswa, clearly shows that khasra No. 27 is a bigger khasra, out of which only 5 bigha 13 biswa was acquired, that is why it has been referred to as khasra No. 27 min. If whole of khasra No. 27 was acquired, then there was no need to mention the word "min" in the Offer No. 1027-A. The very mentioning of khasra No. 27 min at the time of acquisition shows that part of khasra No. 27 had been acquired and remaining land been left out of acquisition.
23. Learned Counsel for the plaintiff has further argued that the "Titama" (Ex. additional PW-1/1), was prepared on 25.10.1972, which is the part of court record. Document is in Urdu and Hindi Translation has also been filed. Plan prepared on the Titama in Urdu clearly shows that Khasra No. 27 has been divided into two parts bearing Khasra No. 27/1 & 27/2 and Subh Ram S/o Pyare is the owner of one bigha in 27/1 and 5 bigha 13 biswa, Khasra No. 27 min i.e. 27/2 and Khasra No. 29, 8 bigha 10 biswa.
CS No. 1504/16 Page no. 18 of 55
24. Learned counsel for the plaintiff has further argued that Ex. PW- 8/2 & PW-8/1 are Reports dated 29.10.1986 & 11.11.1986 respectively and in the report dated 11.11.1986 it is clearly shown that Khasra No. 27 was measuring 6 bigha 13 biswa out of which 5 bigha 13 biswa was acquired and remaining 1 (one) bigha was not acquired. The same is mentioned in the Report dated 29.10.1986 as well.
25. Learned Counsel for the plaintiff has further contended that the Certificate dated 13.11.1986 (Ex. PW-1/8) issued by Revenue Authorities clearly states that the Khasra No. 27 was ad-measuring 6 bigha 13 biswas out of which 5 bigha 13 biswa was acquired vide Award/Offer No. 1027-A and remaining 1 (one) bigha was not acquired.
26. Ld. Counsel for the plaintiff has further contended that the Sale Deed is exhibit as Ex.PW-3/4 and that No Objection Certificate (N.O.C) issued by Revenue Authorities dated 19.09.1986 before registatration of Sale Deed. It was submitted by him that Sale Deed was executed by Shri Subh Ram on 04.09.1986 in favour of plaintiff/Shri Naresh Chandra. As per Section 8 of Delhi Lands (Restrictions on Transfer) Act, 1972 and Rule 5 of Delhi Lands (Restrictions on Transfer) Rules, 1972, Sale Deed is registered only after NOC is received by the Registering Authority/Sub-Registrar from the Revenue Authorities. Revenue Authorities issued N.O.C dated 19.09.1986 categorically stating that Khasra No. 27/1 (1 bigha) of Village Hauz Rani, Patti Hamid Sarai was not acquired and Khasra No. 27/2 (5 bigha 13 biswa) was acquired vide Offer No. 1027-A. After receipt of N.O.C, Sale Deed was registered on 22.09.1986 although the same was presented for registration on 04.09.1986. The endorsement to the effect of N.O.C has also been CS No. 1504/16 Page no. 19 of 55 made on the Sale Deed. Sale Deed is a public document and the same had been duly registered.
27. The plaintiff in his evidence by way of affidavit has exhibited the Sale Deed as PW-1/5. Plaintiff argued that as at that time the property was mortgaged so the original document was with the Bank. Accordingly, witness from the bank was summoned which was recorded as PW-3. The summoned witness has brought the original Sale Deed, Possession Letter and the same were exhibited as Ex.PW- 3/4 and Ex.PW-3/5 after seeing the original document. Even during the course of the arguments the plaintiff has brought the original Sale Deed. The same was compared with the exhibited Sale Deed Exhibited as Ex.PW-3/4. The evidence of the plaintiff has been recorded on the later date. Even if in the affidavit plaintiff has mentioned Sale Deed Ex.PW-1/5 that does not mean that there is no Sale Deed and document of title especially when it was brought from the custody of the bank and exhibited as PW-3/4. It is settled proposition of law that the document which is registered will have to be looked into and compared with the original. There is no interpolation between the original Sale Deed dated 04.09.1986 and Sale Deed exhibited as Ex.PW-3/4. I am of the considered view that there is no interpolation in the Sale Deed. I am also of the view that the Sale Deed Ex.PW-3/4 has been proved in accordance with law. Merely, mentioning Ex.PW-1/5 in the affidavit of plaintiff and not finding the document Ex.PW-1/5 does not mean that there is no Sale Deed. Ex.PW-3/4 is the Sale Deed duly registered with the Sub Registrar and proved being a public document. The defendant No.1 has enough opportunity to challenge the Sale Deed dated 04.09.1986 as they are aware of the same since beginning on 11.09.1986 when the dispute was raised by them and also have CS No. 1504/16 Page no. 20 of 55 enough opportunity to cross examine the plaintiff on the Sale Deed. The defendant No.1 has neither challenged the Sale Deed nor proved by any cogent evidence that there is a dent in the registered Sale Deed Ex.PW-3/4.
28. Learned Counsel for the plaintiff has further contended that a possession letter, Ex.PW-3/5, which shows that the possession has been handed over by Sh. Subh Ram to the plaintiff and plaintiff is in possession of the same. Ld. Counsel for the plaintiff further has further contended that the letter dated 19.02.1997 Ex.PW-6/2 issued by SDM, LAC to the effect that Khasra No. 27, area 6 bigha 13 biswa out of which 5 bigha 12 biswa was acquired and remaining one bigha was not acquired. Learned Counsel for the plaintiff further argued that Ex.PW-3/7 is Revenue Record of Khasra Girdhawari in favour of Shri Naresh Chandra in which it is mentioned that Khasra No. 27 is 6 bigha 13 biswa and 5 bigha 13 biswa was acquired and remaining one bigha is lying vacant. Learned Counsel for the plaintiff has further contended that in the Revenue records for the year 1960-61 i.e. Jamabandi it is clearly shown that Khasra No. 27 is measuring 6 bigha 13 biswa. The endorsement in the Revenue Record is presumed to be correct, as is provided under Section 44 of Punjab Land Revenue Act. The society failed to rebut the presumption by any cogent evidence, as such, the same has to be presumed to be correct. The mutation in favour of plaintiff was accorded vide Mutation No. 2172 dt. 27.10.1986 in favour of plaintiff in respect of one bigha of land.
29. Learned Counsel for the plaintiff has further argued that Ex.PW 5/3 i.e. letter dated 29.12.1992 is issued by Tehsildar submitting Report to the concerned Authorities considering the case/ matter for CS No. 1504/16 Page no. 21 of 55 withdrawal of FIR No. 800/86. In this Letter, it has been categorically mentioned that Khasra No. 27 was measuring 6 bigha 13 biswas is under the ownership of Subh Ram out of which 5 bigha 12 biswas has been acquired. Entries are made to this effect in January, 1979. The left out land i.e. one bigha 1 biswa remained with the owner who later on sold one bigha to Shri Naresh Chandra vide Sale Deed registered on 22.09.1986. Mutation was effected in favour of Shri Naresh Chandra vide Mutation No. 2172 dt. 27.10.1986. Similarly, letter dated 28.04.1994 (Exhibit PW-1/9) is also to same effect. Learned Counsel for the plaintiff has further argued that on the basis of the report submitted by the Tehsildar, the Government has decided to withdraw the FIR bearing No. 800/86 and the same was withdrawn by the Government. The orders were passed by the court for acquitting the plaintiff. The Record Room reported that the record has be weededout/destroyed and the certified copy of the same is Ex. Additional PW-1/13 (Colly).
30. Ld. Counsel for the plaintiff has contended that it has been argued before the Appellate Tribunal that the revenue authorities submitted the report dated 14.03.2012 alongwith the Site Plan which is exhibit as additional Ex.PW-1/6 and Super Imposed Layout Plan. The learned Tribunal has also passed the orders on 11.05.2012 thereby dismissing the impleadment application of defendant No.1 i.e. Society before the Tribunal. The said order is exhibited as additional Ex.PW- 1/5. The same were considered by the learned Appellate Tribunal MCD while pronouncing the Judgment on 04.06.2012 and the same is exhibit as additional Ex.PW-1/7. Appeals bearing Nos. 9/2012 to 13/2012 and Appeal No. 1/2013 to 5/2013 were filed by the DDA and the defendant No.1 Society respectively against the judgment of the Tribunal dated CS No. 1504/16 Page no. 22 of 55 04.06.2012 before the learned District Judge Saket, New Delhi. The same were decided by the learned District Judge Saket, New Delhi vide a common order dated 07.02.2013 which is exhibited as additional Ex.PW-1/8.
31. That the counsel for the plaintiff further argued that the defendant No.1 has made the statement before the court on 04.11.2011 and the same is exhibited as additional Ex.PW-1/11 and settlement dated 23.09.2011 is exhibited as additional Ex.PW-1/12. The learned counsel for the plaintiff has argued that the judgments, orders and observations in the judgments has the persuasive value and the same can be considered and take judicial notice while adjudicating the issue in dispute. The learned counsel for the plaintiff has argued that notification dated 22.01.1979 published in Gazette of India on 08.03.1979 u/s 22 of Delhi Development Act exhibited as additional Ex.PW-1/2, clearly shows that Khasra No. 27 min 5 bigha 12 biswa was handed over to DDA for the purpose of development and is a Nazul land.
32. The learned counsel for the plaintiff has argued that Exhibit PW- 1/11 and Exhibit D-2 is Letter of Allotment dated 07/09.06.1982 which clearly shows that Khasra No. 27 admeasuring 5 bigha 12 biswa was allotted to the Society in Village Patti Hamid Sarai where total land allotted was approximately 12.50 acres. The learned counsel for the plaintiff has argued that Exhibit D-4 is Possession Letter dated 20.09.1982. Hand-written Certified Copy was placed on record as additional Ex.PW-1/4 which clearly shows that Khasra No. 27, 5 bigha 12 biswa was handed over to the Society.
CS No. 1504/16 Page no. 23 of 55
33. On the basis of above, learned counsel for the plaintiff has submitted that in view of the abovesaid documents, Khasra No. 27/1 admeasuring 1 bigha 1 biswa was never acquired at any point of time by Government that is why Khasra No. 27 min has been mentioned in the Offer No. 1027-A dated 09.11.1962. Once the land has not been acquired, it cannot be handed over to anybody. Thus, the plaintiff is the owner of land falling in Khasra No. 27/1.
34. During the arguments learned Counsel for the defendant No.1 has argued that there is no identification of the suit property. The property has not been described in the plaint and actual location of the property cannot be worked out, hence the suit is not maintanable under order VII Rule 3 CPC. It is further argued that land cannot be identified in the entire chunk of the land allotted to the defendant No.1 and in these circumstances court cannot give the relief to the plaintiff for want of identification of the suit property. The property No. B-143 to 147 has not been mentioned either in the plaint or in the Sale Deed or in any other document as such no relief can be granted to the plaintiff.
35. The learned counsel for the plaintiff has argued that Identity of the Plot/suit property and the land falling in Khasra No. 27/1 was never in dispute as the same was categorically identified and understood by the parties right from the day one as is clear from FIR lodged by defendant No.1 against the plaintiff which was later on withdrawn and even during the pendency of suit the identification of suit land was never in question. Moreover, the defendant No.1 themselves had written to the DDA that there is a dispute with regard to the plots No. B-143 to B-147 shown Red at the location of B-143 to B-147 and there CS No. 1504/16 Page no. 24 of 55 is endorsement in the layout plan itself about the withholding of the building activity on Plots No. B-143 to B-147. Therefore, the contention of the defendant No.1 society that Site Plan has not been filed will not make any difference as the suit is for declaration and injunction only qua the land which both the parties understand in its true perspective, from day one. The counsel for the plaintiff has further argued that the site plan has been filed alongwith the additional evidence by way of affidavit and exhibited as additional Ex. PW-1/3. Learned Counsel for the plaintiff further argued that in the absence of mentioning of Plot No. B-143 to 147, either in the Plaint or in the Sale Deed or in any other document, does not mean that land falling in Khasra No. 27/1 will not be pertaining to Plots No. B-143 to 147, especially when the society themselves are claiming right from day one in various Letters that suit property/land of Shri Naresh Chandra pertains to Plot No. B-143 to B-
147. Even during the Cross Examination, President of the Society has admitted that suit land falls in Plots No. B-143 to B-147. In the Layout Plan which was sanctioned in the year 1985 and released on 07.01.1986, no plot number has been assigned. Plot numbers to respective plots were given at later stage by the Society after 1989 and during the pendency of suit as the sizes of plots had been reduced from 200 sq.yds to 190 sq.yds in 1989. The Society has not taken any permission from the court at any point of time for getting the approval of Service Plan or Schemes or Setback cum Demarcation Plan by which the sizes of plots had been reduced in sizes. This shows that the services etc. have been laid down by the society during the pendency of suit, without the consent of the plaintiff.
36. The learned counsel for the plaintiff has argued that perusal of Service Plan approved in July, 1986 shows that none of the services CS No. 1504/16 Page no. 25 of 55 passes through the inside or beneath of Plots No. B-143 to B-147. It only passes through Service Road in rear and road in front of all the plots in the colony of Shivalik, so to say that services were laid in the plot, is incorrect. Moreover, services can be laid only after alleged approval from Competent Authority which was granted in July, 1986. Suit was filed on 17.09.1986. Services cannot be laid in 45 acres in such short span of two months, after approval from the Authorities. Moreover, even laying of services will not confer any title on the society qua the suit property. The counsel for the plaintiff has argued that the right, title and interest in an immovable property can only be created by valid title documents such as Allotment by Government Body, Conveyances, Sale Deed etc. When the land has not been allotted, so, the society cannot arbitrarily claim itself to be the owner of such land.
37. The learned counsel for the plaintiff has argued that in the light of Revenue Records, Sale Deed etc. it is clear that plaintiff is the owner of land falling in Khasra No. 27/1, which is now forming part of Plots No. B-143 to B-147, Shivalik, Malviya Nagar, New Delhi. Same has been admitted and acknowledged by the Society in all the Statements made before courts and Tribunal. The identity of the suit property falling in Plots No. B-143 to B-147 was never in dispute or in question as the same is admitted by the Society in the Cross Examination, in Contempt proceedings and amicable Settlement arrived at before Station House Officer, P.S: Malviya Nagar and before Tribunal. Sale Deed (Exhibit PW- 3/4) is registered Sale Deed which is a public document. Plaintiff identify his signatures and in existence for the last more than 30 years, so the execution of Sale Deed stands proved. The Learned Counsel for the plaintiff has argued that once DDA and Government in their Written CS No. 1504/16 Page no. 26 of 55 Statements has admitted that Khasra No. 27/1 measuring one bigha was not acquired and transferred/handed over, then, where is the question of society becoming owner of the land falling in Khasra No. 27/1.
38. The learned counsel for the plaintiff has argued that the Layout Plan in respect of land has not been prepared on the basis of land falling in individual khasras allotted to the society in the Letter dated 07/09.06.1982. All the plots are carved out in the Layout Plan, by the Society. If society carved out the plots in the land of the plaintiff, then, it cannot be said that society is the owner of said plots. The counsel for the plaintiff has argued that nobody can become the owner of land without any document of title and merely on the basis of allegedly laying of services during the pendency of suit, defendant No.1 cannot become the owner of the property. Moreover, Society has not placed any record as to when laying of alleged services commenced. It cannot be laid before sanctioning of Layout Plan and Services Plan. The Services Plan released on 01.07.1986. The allegations of the Society that the laying of services were done before the filing of the suit is a bald allegations. Society withheld the evidence from court. Merely mentioning the name of Architect etc. does not mean that services were laid before filing of suit, that too, within a span of three months from 01.07.1986 to 30.09.1986.
39. The learned counsel for the plaintiff has argued that the Doctrine of lis pendens will be applicable as the suit was filed in 1986. Court to consider the facts at the time of filing of suit. Any improvement or act done during the pendency of suit cannot confer any right on the party and is bound by doctrine of lis pendens. The learned counsel for the CS No. 1504/16 Page no. 27 of 55 plaintiff has argued that the property is clearly identifiable and the defendant No.1 is misleading and misrepresenting about the identity of the suit property. It is submitted that the relief prayed for in the suit, is in respect of land falling in Khasra No. 27/1, Village Hauz Rani, Patti Hamid Sarai. Defendant No.1 is trying to project as if the land falling in Khasra No. 27/1 is different then the land falling in Plots No. B-143 to B- 147, merely on the basis of the contents of plaint & Sale Deed. Learned Counsel for the plaintiff has also argued that the Layout Plan was prepared by Society in respect of whole of land measuring 45 acres allotted to them vide Allotment Letter dated 07/09.06.1982 and un- acquired land within the area. In the Allotment Letter with Annexures, it is mentioned as land in Patti Hamid Sarai is 12.50 acres (approx.). Mentioning of 12.50 acres (approx.) clearly shows that it can be more as well. Moreover, layout plan was not prepared based on individual khasras with respective areas mentioned in the Allotment Letter with Annexure dated 07/09.06.1982. Shri Anupam Dhar (President of the society) in his Cross Examination has stated that he cannot tell how much land was acquired of Village Hauz Rani, Patti Hamid Sarai without consulting the records. He has further stated that it is correct that entire area of Village Hauz Rani, Patti Hamid Sarai was lying vacant in the year 198I cannot tell as to how much land was left un- acquired of Village Hauz Rani, Patti Hamid Sarai at the relevant point of time. He has further stated that they had not verified the revenue records as to in which khasra number, how much land was land and how much land was not acquired and that it is correct that they have knowledge that one bigha land was mutated in the name of plaintiff. He has further stated that they have not filed any Petition/Suit in this regard. He has further stated that he cannot identify 5 bigha 13 biswa land of defendant in Khasra No. 27 in the Map Exhibit D-5. Same is in CS No. 1504/16 Page no. 28 of 55 Block-B of the colony and that he cannot tell where is the suit land in three layout plan located. It is correct that disputed land is still lying vacant. He has further stated that it is correct that disputed portion is between Plot No. B-143 to B-147.
40. It clearly shows that when the land was allotted and Layout Plan was submitted for approval, society has not verified the Revenue Records as to in which khasra how much land was allotted and how much land was not acquired and how much land is in fact there. Moreover, the Layout Plan (Exhibit D-8) clearly shows that it is not prepared as per land in individual khasras with respective areas allotted to defendant No.1. Once Layout Plan has been prepared, land falling in khasra No. 27/1 was taken while carving out Plots between Plots No. B-142 & B-148 and some land had gone in Right of Way. He has further argued that even in the Revenue Records, it is shown that in khasra No. 27, (6 bigha 13 biswa), there is road (2 bigha 13 biswa), Park (2 bigha 19 biswa), vacant (1 bigha 1 biswa). Layout Plan so prepared is not on the basis of the areas and existence of respective khasras allotted to the society. So to say that land as per Plaint & Sale Deed is different than the land falling in Plots No. B-143 to B-147, is misconceived. On the contrary, in the initial Layout Plan (Exhibit D-8), the size of plots has been reflected as 200 sq.yds, which was reduced to 190 sq.yds in the year 1988-89. Defendant has admitted in his Cross Examination that suit land/disputed portion falls between Plots No. B- 143 to B-147. The Office Bearers of the society had admitted before court in Contempt Petition and in the amicable settlement that the disputed land falls in Plots No. B-143 to B-147. FIR was filed by the Society for criminal trespass etc. Government called for Report about ownership of land. After Reports from Revenue authorities, Competent CS No. 1504/16 Page no. 29 of 55 Authority recommended for withdrawal of prosecution and on the basis of recommendations, case was withdrawn by Government as the plaintiff is the owner of land falling in Plots No. B-143 to B-147. Even before learned Tribunal and before learned District Judge, defendant admitted that property falls in Plots No. B-143 to B-147. So to say that the suit property is not identifiable and is hit by Order 7 Rule 3 CPC, is misconceived. When the property is clearly identified, identifiable and understood by parties in its true perspective, right from day one, when Officer Bearers of defendant society interfered in the possession of plaintiff, FIR was lodged by defendant against plaintiff, suit filed by plaintiff, proceedings u/S. 145 Cr.PC before Sub-Divisional Magistrate, respective Revision Petitions etc., land of the plaintiff is clearly understood by defendant No.1 to be land falling in Khasra No. 27/1, now falling in Plots No. B-143 to B-147, Shivalik, Malviya Nagar, New Delhi. Therefore to say that the property is not identifiable has no merits.
41. The learned counsel for the defendant No.1 has argued that the plaintiff has made a statement on 22.01.2013 in appeal stating that suit pertains to that portion of land which falls in Khasra No. 27/1, Patti Hamid Sarai, Mehrauli, measuring 1 bigha and as such the suit is not for Plots No. B-143 to B-147.
42. The relief of declaration is continuing one in these circumstances and onus to prove that the sale deed was not validly executed was on the defendant No.1 specially in the circumstances when the vendor of the plaintiff as well as the person whose land was acquired and allotted to the defendant No.1 was same whereas the dispute is not of genuineness of the sale deed but it is a dispute whether such land CS No. 1504/16 Page no. 30 of 55 existed or not and then whether the vendor was entitled to execute the same. Thus, all these observations irresistibly reach to the conclusion that issue no.7 is to be decided in favour of plaintiff and against the defendant No.1. Issue No. 8 deals with permanent injunction. The plaintiff has been able to prove his ownership, possession, relief of declaration and construction of boundary wall was also proved to some extent, even otherwise the land in question was lying vacant and possession is to follow the title as observed above. Government had no title in the land in dispute at any point of time having not been acquired and plaintiff's possession has been threatened and he was left with no alternative except to approach the court and accordingly he is entitled to the injunction.
43. The suit land measuring 1 bigha in Khasra No. 27/1 village Hauz Rani is not an acquired land and plaintiff was in possession of the said land till it was made custodian legis i.e. on 30.09.1986 vide Ex. PW-1/7.
44. The counsel for the plaintiff has argued that layout plan was prepared in the year 1985 and released in 1986 by DDA (Exh. D-8) neither any plot number was given by Society nor marked on the same. When plot numbers were not there and Layout Plan has not been prepared on the basis of individual respective khasras with respective areas and plot numbers have been given, some time in the year 1988-89, when Plans for Services, setback cum Demarcation was submitted in the year 1988-89, wherein size of plots have been reduced from 200 sq.yds to 190 sq.yds. Thus, Plots No. B-143 to B-147 came into existence during the pendency of suit. Shri Anupam Dhar in his Cross Examination has categorically admitted that no permission was sought from anybody including plaintiff.
CS No. 1504/16 Page no. 31 of 55
45. That The counsel for the plaintiff has further argued that the Society cannot state that suit is not for Plots No. B-143 to B-147. The suit is for the declaration of ownership of land ad-measuring 1 bigha falling in Kh.No. 27/1(1-0). The land falling in Kh. No. 27/1 falls in Plots No. B-143 to B-147. The same is admitted by society in their evidence. The society also admitted the ownership of Shri Naresh Chandra, plaintiff qua land falling in B-143 to B-147. The Revenue Authorities in various Letters also admitted and acknowledged the ownership of the plaintiff in respect of Khasra No. 27/1. In view of the admitted position of the facts right from 1986, there is no merits in the contention that the suit is not for plots No. B-143 to B-147.
46. The counsel for the plaintiff has argued that the learned Appellate Court while pronouncing the judgment on 23.06.2014, has stated that Union of India & DDA are necessary parties and they have to be impleaded as they can only explain about the title of suit land and whether the title of suit land is still with DDA or U.O.I.
47. In the Written Statement of DDA & L & DO, it is categorically mentioned that land falling in Khasra No. 27/1, Patti Hamid Sarai was neither acquired nor allotted nor transferred nor mutated nor handed over to the society. Once the land falling in Khasra No. 27/1 was neither acquired, nor allotted nor transferred nor handed over to society, the title of land remained with Shri Subh Ram who sold it to Shri Naresh Chandra vide Sale Deed dated 04.09.1986 regd. on 22.09.1986 after N.O.C given by L.A.C dt. 19.09.1986. The Revenue Authorities had carried out mutation in the Revenue Records on the basis of Sale Deed in October, 1986. Thus, the title of suit land falling in Khasra No. 27/1 CS No. 1504/16 Page no. 32 of 55 was of plaintiff. Revenue Authorities demarcated during the pendency of Appeal before Tribunal and Report obtained was submitted before Appellate Tribunal, MCD who was hearing the Appeal against the Rejection of Building Plan by DDA. In the Report, the Revenue Authorities have clearly stated that land falling in Khasra No. 27/1 now falls in Plots No. B-143 to B-147 and same was also shown in the super- imposed layout plan. The learned Tribunal has considered those Reports while passing the judgment.
48. It has to be kept in mind that all pleadings coupled with evidence has to be looked into and if the location of the property can be identified then the plaintiff cannot be non suited on this points. The details of the property are mentioned in the plaint. It is mentioned that one bigha has not been acquired. Demarcation of the suit property was carried out on 17.02.1986 Ex. PW-1/4. Plaintiff started raising construction on the suit property and defendant came on the spot for stopping him. FIR was filed which was withdrawn thus both the parties knew where the land is situated. The judgment of Sh. A.K.Sarpal learned Appellate Tribunal, MCD dated 04.06.2012 held that the plaintiff is the owner of the property No. B-143 to B-147, Malviya Nagar, Saket, New Delhi and the order dated 07.02.2013 passed by the court of Sh. R.K.Gauba, the then District Judge, Saket, New Delhi on the basis of the statement of the parties including the society has observed that it is the private property of the plaintiff. The defendant has also made statement before the court on 04.11.2011 with regard to this very property in possession of the plaintiff. The defendant No.1 has not filed any document to show that the land falling in khasra no. 27/1 was acquired at any point of time and put at the disposal of DDA and given to them by DDA in 1982. Merely on the basis of the bald CS No. 1504/16 Page no. 33 of 55 allegations and contentions it cannot be said that the property is acquired. The revenue records and other documents produced by the plaintiff clearly shows that this piece of land i.e. 1 Bigha 1 Biswas in Khasra No.27/1 remained with Sh. Subhram which was never part of the acquired land as well as no compensation was ever given to anybody regarding this piece of land including Sh. Subh Ram. Even DDA and the Union of India has not filed any document to show that the land bearing 1 Bigha 1 Biswas falling in Khasra No.27/1 was acquired at any point of time. On the other hand, there is categorical admission on the part of DDA and Union of India that 1 Bigha 1 Biswas in Khasra No.27/1 was not acquired. The plaintiff in his cross examination has clearly stated that plot No. B-142, existed on the North of the disputed land while B-148 existed on the South. The defendant Sh. Anupam Dhar has categorically admitted in his cross examination that construction of the building started in the year 1991, if so again the rule of lis pendis will apply. He also stated that he does not exactly remember the year in which actually the pipes were laid which pertains to sewer, sewerage, back water, rain water and basis amenities. He also stated the he has not verified the revenue record with respect to khasra no. and area of acquisition of land. The demarcation report is public document, ignorance of which cannot be cited as an excuse. As per DW-1 there was no sanction plan at the time of laying of the alleged services. Moreover, as per deposition of DW-1 layout plan was passed in the year 1988-89 and construction of the building started in the year 1991 which demolishes the claim of defendant that the sewer line, pipelines are laid down by them earlier and prior to 1986 though at that time they were not authorized to do so as site plans were sanctioned later on. He also admitted that demarcation was done by the department and some dispute was also CS No. 1504/16 Page no. 34 of 55 raised but he had no knowledge as to which documents were shown and who was present on behalf of society. Thus, if the defendant wants to ignore the demarcation report produced by the plaintiff on the same ground, the demarcation report Ex.D-7 of the defendant is also required to be ignored. Moreover, this demarcation report does not talk about khasra no. 27/1 in whole of the proceedings. The report Ex.PW-1/3 relied upon by the plaintiff was specifically for the demarcation of khasra no. 27 and 29 whereas Ex.D-7 was for general demarcation therefore carries no weight in comparison to Ex.PW-1/3. Thus the plea of the defendant No.1 is not tenable with respect to the identification of the property. It is worthwhile to mention that an application Under Order VII Rule 11 CPC was filed by the defendant No.1 wherein it was mentioned that society was developed the suit land as well as other lands with other averments like sewer lines and metal roads have been laid by the society beneath the land including the suit land. The FIR was also filed by the defendant No.1 in respect of this very suit land which was later on withdrawn by the government. The defendant No.1 has not challenged the order of withdrawal of FIR by the government. The defendant No.1 has also not challenged the Sale Deed till date. Thus, the plea of the defendant No.1 that the suit land in not identifiable is rejected. The suit property in the present case is identifiable. It is also to be kept in mind that the plaintiff has relied upon the Sale Deed Ex. PW-3/4 executed in his favour whereas defendant No.1 has failed to show any document of ownership or allotment except for the bald assertion that they were given the land as allotted to them after it was acquired. The ownership of the land can be transferred only by way of conveyance as is provided under the transfer of property act. The offer No. 1027A dated 09.11.1962, Ex.PW-1/1 by the land falling in khasra no. 27 measuring 5 Bigha 12 CS No. 1504/16 Page no. 35 of 55 Biswas was acquired. The same was put at the disposal of DDA vide notification under Section 22 of the DDA Act dated 08.03.1979 Exhibit as additional Ex.PW-1/2, which shows that land measuring 5 Bigha 12 Biswas falling in Khasra No. 27 Min was put at the disposal of DDA. DDA has handed over possession to the defendant No.1 on 07/09.06.1982. It is a settled law that no person can confer better title then he had. When the land was not acquired then the DDA cannot handover the possession of the same to the defendant No.1 The defendant No.1 has got no right, title or interest in the land falling in Khasra No. 27/1 Patti Hamid Sarai Village Hauz Rani, Delhi. It is not disputed that Khasra No. 27 belongs to Sh. Subh Ram. The major portion of the same was acquired and put at the disposal of the DDA, who in turn had handed over the same to defendant No.1. Khasra No. 27 is part of B-Block of Shivalik, The portion of Khasra No. 27/1 which is not acquired cannot be said to be some other place other then the B- Block opf Shivalik when khasra No.27 is part of the same. Thus, the plaintiff has discharged the onus to prove that the land falling in khasra no. 27/1 was not acquired and now falls in Plot NO. B-143, to B-147 Shivalik. The defendant No.1 cannot claim the ownership of the same. In the plaint the plaintiff has stated that while he was raising the boundary wall and for that purposes collected building material on 11.09.1986 then defendant came and the dispute arose though the plaintiff had constructed the boundary wall. Even if for the sake of arguments, if it is presumed that boundary wall was not fully constructed or at the most there was no boundary wall at the spot the fact remains that the prayer sought is for injunction seeking restrain order against the defendant No.1 against forcible dispossession and not of possession or of demolishing the construction thereon thus it can be presumed that some part of boundary wall was there and CS No. 1504/16 Page no. 36 of 55 plaintiff wanted to protect the same by filing the present suit. The learned Local Commissioner in his report dated 17.09.1986 reported that wall was in existence and the observation of the learned Local Commissioner that the wall is new also does not goes against the plaintiff since it was his case in the plaint itself and the report of the learned local commissioner is within 5 days of the alleged construction of boundary wall. When the plaintiff has discharged the initial onus by means of cogent documentary evidence as well as the subsequent judgments of the learned Appellate Tribunal, MCD and the learned District Judge, Saket and the statement of defendant No.1 dated 04.11.2011 and the settlement dated 23.09.2011 before the SHO Malviya Nagar that he is the owner of the property in suit. The defendant No.1 had to show that they are legally entitled to have the suit property in dispute in their possession. The defendant has miserably failed to established by means of any document of title or otherwise that they are in possession of the suit premises except the bald assertions of laying of services etc. The defendant No.1 cannot be said to have any right, title and interest in the suit property.
49. The defendant No.1 has argued that he had got the lay out plan sanctioned, laid down sewer pipes and drainage etc. which are going beneath the suit land and thus it shows that they are in possession of the suit land.
50. The Counsel for the plaintiff has argued that services can be laid either in front road or in rear in the service lane. No part of the services have been laid within the plot or beneath the plots. The layout plan and the service plan exhibited by the defendant No.1 also shows that the services are laid only in the front road or in the rear in service lane CS No. 1504/16 Page no. 37 of 55 and not in any part of the plot. The contention of the defendant no.1 is misconceived. The defendant No.1 has to establish their legal right over the suit land. The defendant No.1 has miserably failed to prove the same. The laying of sewers or drainage in front or rear of the plots does not confer the possessory rights or ownership rights upon the defendant No.1.
51. The learned Counsel for the plaintiff has argued that the Defendant No.1 cannot challenge the demarcation Report (Ex. PW-1/4) as defendant No.1 has neither filed any objection to said Report nor taken any step against said Report. Report (Ex. PW-1/4) is on record right from day one of filing of suit. It is also in the knowledge of defendant that the property is owned by Shri Naresh Chandra and mutated in the Revenue Records. After lapse of more than 30 years, now defendant No.1 cannot raise any objection that said Demarcation Report is not in accordance with Hadshikhni Rules as framed by Delhi High Court. The counsel for the plaintiff further argued that DDA while rejecting the building plan stated that it is a private property and they do not sanction plans for private property. DDA also submitted before the learned Tribunal that DDA is neither the owner nor it is put at disposal of DDA. Once DDA took categorical stand that Kh. No. 27/1 was neither acquired nor transferred nor put at their disposal nor allotted to the society, the DDA cannot challenge the demarcation done by Revenue Authorities in February, 1986.
52. The learned Counsel for the plaintiff has argued that by categorical evidence that suit land falls in Khasra No. 27/1 and now falls in Plots No. B-143 to B-147. Same is also admitted by society in all those proceedings. Now to say that there is no pleading about Plot No. CS No. 1504/16 Page no. 38 of 55 B-143 to B-147 and plaintiff never sought any amendment in his Plaint and any evidence beyond pleading is not admissible, is misconceived. It is also argued by the counsel for the plaintiff that the plaintiff is the owner of land falling in Khasra No. 27/1, Patti Hamid Sarai. Same is also admitted by DDA, L&DO in their Written Statement to be neither acquired nor allotted nor transferred nor mutated nor handed over. Thus, the land falling in Khasra No. 27/1, Patti Hamid Sarai is un- acquired land, owned by plaintiff. Relief is sought pertaining to land falling in Khasra No. 27/1. Revenue Authorities has demarcated the land falling in Khasra No. 27/1 to be now falling in Plots No. B-143 to B-
147. Society/defendant No.1 right from day one i.e. September, 1986 is acknowledging and admitting that plaintiff is trying to encroach/trespass on the land falling in Plot No. B-143 to B-147. Shri Anupam Dhar, President of the society had admitted in his Cross Examination that disputed land falls in Plots No. B-143 to B-147. Once the society is aware that land falling in Khasra No. 27/1 falls in Plot No. B-143 to B-147, now to say that there is no pleading or any evidence beyond pleading has no merits.
53. The learned Counsel for the plaintiff has argued that no services were laid inside the plots bearing No. B-143 to B-147 admeasuring 190 sq.yds. Whatever services allegedly laid, same was laid either in front road side or in rear service road, which fact is clearly reflected in the Services Plan. No Services had been laid on suit land during the pendency of suit. Shri Anupam Dhar had admitted that no permission was taken.
54. The plaintiff has argued that the court has the power under Order VII Rule 7 CPC to mould the relief and grant the relief in the interest of CS No. 1504/16 Page no. 39 of 55 justice and also to impart substantial justice. The counsel for the plaintiff has relied upon AIR 1951 (SC) 177 titled as "Firm Srinivas Ram Kumar Vs. Mahabir Prasad and Ors." AIR 1966 (SC) 735 "Bhagwati Prasad Vs. Chandra Moul" wherein it is held that "if a plea is not specifically and yet if a and the parties knew that the said plea in involved in that the plea was not If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon it if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched, though indirectly or even obscurely in the issue, and evidence has been led about them, then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it ? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and had had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another." The counsel for the plaintiff has relied upon AIR 1975 (SC) 1409 titled as "Pasupuleti Venkateswarlu Vs. Motor & General Traders" wherein it was held that "for making the right or CS No. 1504/16 Page no. 40 of 55 remedy, claimed by the party just and meaningful as also legally and factually inaccord with the current realities, the court can, and inmany cases must,take cautious cognisance of events and developments subsequent to the institution of the proceeding provided the rupees of fairness to both sides are scrupulously obeyed". The counsel for the plaintiff has further relied upon AIR 1976 (SC) 49 titled as "Rameshwar and Others Vs. Jot Ram and Others" wherein it was held that "It is basic to our processual jurisprudence that the right to relief -must be judged to exist as on the date a suitor institutes the legal proceeding. This is an emphatic statement that the right of a party is determined by the facts as they exist on the date the action is instituted. Granting the presence of such facts, then he is entitled to its enforcement. Later developments cannot defeat his right. The Court's procedural delays cannot deprive him of legal justice or rights crystallised in the initial cause of action. Courts can, however, take note of subsequent events and mould the relief accordingly, but this can be done only in exceptional circumstances. Rights vested by statute cannot be divested by this equitable doctrine. AIR 1927 PC 252 and AIR 1966 Punj 374 (FB), Approved. Case law discussed." The counsel for the plaintiff has relied upon AIR 2002 (SC) 136 titled as "Rajendta Tiwary Vs. Basudeo Prasad" it was held that "where the relief prayed for in the suit is a larger relief and if no case is made out for granting the same but the facts, as established, justify granting of a smaller relief, Order VII Rule 7 permits granting of such a relief to the parties. However, under the said provisions a relief larger than the one claimed by the plaintiff in the suit cannot be granted." The Hon'ble Supreme Court in para 11 had further relied the judgment in Firm Sriniwas Bam Kumar Vs. Mahabir Prasad & Ors. [A.I.R. 1951 S.C. 177] it is laid down by this Court:-
CS No. 1504/16 Page no. 41 of 55 Ordinarily, the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings & which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendants own plea cannot possibly be regarded with surprise by the latter & no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff to a separate suit". The counsel for the plaintiff has also relied upon 1995 (33) DRJ titled as "M/s Nabha Investment Pvt. Ltd. Vs. Narmishan Dass Lukhmi Dass" wherein it was held in para 16. 1. The rule that the plaint shall state specifically the relief which the plaintiff claims and the power of the court to grant general or other relief though not asked for as contemplated by Rule 7 of Order. 7 CPC, has met with a meaningful interpretation by their Lordships of the Supreme Court in "Hindalco Industries Ltd vs. Union of India and others, 1994 (2) SCC 594 :-
"It is settled law that it is no longer necessary to specifically ask for general or other relief apart from the specific relief asked for. Such a relief may always be given to the same extent as if it has been asked for provided that it is not inconsistent with that specific claim which the case raised by the pleadings. The court CS No. 1504/16 Page no. 42 of 55 must have regard for all the reliefs and look at the substance of the matter and not its forms. It is equally settled law that grant of declaring relief is always one of discretion and the court is not bound to grant the relief merely because it is lawful to do so. Based on the facts and circumstances the court may on sound and reasonable judicial principles grant such declaration as the facts and circumstances may so warrant. Exercise of discretion is not arbitrary. If the relief asked for is as of right, something is included in his cause of action and if he establishes his cause of action, the court perhaps has been left with no discretion to refuse the same. But when it is not as of right, then it is one of the exercise of discretion by the court. In that event the court may in given circumstances grant which includes `may refuse' the relief. It is one of exercising judicious discretion by the court."
The counsel for the plaintiff has relied upon AIR 2001 Madras 399" wherein it was held "The question, however, arises whether, in the absence of any such alternative case in the plaint it is open to the Court to give him relief on that basis. The rule undoubtedly is that the Act cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side wax not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant. In his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant, himself makes. A demand of the plaintiff based on the defendants own plea cannot possibly be regarded CS No. 1504/16 Page no. 43 of 55 with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant, in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to drive the plaintiff, to a separate suit."
"..... There is no question of the 1 st respondent being taken by surprise since there is no necessary to adduce evidence of these facts when it was expressly admitted by the 1st respondent in the written statement. If we look at the judgment of the trial court and issues that were framed thereunder...."
The counsel for the plaintiff has relied upon 2007 (98) DRJ 443 (DB) titled as Anil Kumar Marwah Vs. Deepak Sunder & Ors." wherein it was held that "No doubt, the case is to be decided on the pleadings. However, subsequent event can be taken note of to do complete justice in the matter as provided under Order 7 Rule 7 CPC. Interpreting this provision, the Supreme Court in the case Pasupuleti Venkateswarlu Vs. The Motor & General Traders - AIR 1975 SC 140, has observed as under:
"We feel the submissions devoid of substance. First about the jurisdiction and propriety vis a vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date of a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has CS No. 1504/16 Page no. 44 of 55 a fundamental impact on the right to relief for the manner of moulding it, is brought diligently to the notice of the Tribunal, it cannot blink at it or be blind to events which stultify or render inept the decrotal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice-subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myraid. We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments (subsequent to the institution of the proceeding provided the rules of fair-'ness to both sides are scrupulously obeyed. On both occasions the High Court, in revision, correctly took this view. The later recovery of another accommodation by the landlord, during the pendency of the case, has as the High Court twice pointed out, a material bearing on the right to evict in view of the inhibition written into Section 10(3)(iii) itself. We are not disposed to disturb this approach in law or finding of fact.
The counsel for the plaintiff has further relied upon 187 (2012) Delhi Law Times 548 titled as "Shri Radha Krishan Temple Trust Maithan, Agra Vs. Hindco Rotatron Pvt. Ltd. & Ors."
wherein it was held that "Ordinarily, a suit has to be decided on CS No. 1504/16 Page no. 45 of 55 the basis of a cause of action which exists on the date when the suit is filed. However, this technical rule has been whittled down by a catena of judgments of the Supreme Court whereby the Supreme Court has said that Courts are always empowered to take notice of subsequent events under Order 7 Rule 7 CPC to shorten the litigation. In fact, the provision of Order 7 Rule 7 CPC has been extensively applied by the Supreme Court in litigations between the landlord and the tenant under different Rent Control Acts, more so in petitions pertaining to eviction on the ground of bonafide necessity. The Supreme Court has repeatedly held that the object of taking notice of subsequent events is to shorten the litigation and to do substantive justice. This principle of taking notice of subsequent events is a well settled principle and I therefore need not burden this judgment with the innumerable judgments of the Supreme Court on this aspect. Of course, it has to be kept in mind that where there are disputed questions of facts pertaining to subsequent events, such disputed questions of facts ordinarily will require trial, however, where the subsequent events bring out an admitted or categorical position they can be used to pass appropriate orders on the basis of such admitted subsequent events/facts.
7. So far as the facts of the present case are concerned, the same show that it is apposite that this Court applies the principle of Order 7 Rule 7 CPC in view of the admitted facts, and more particularly keeping in mind the intention of legislature in amending Section 106 of the Act by Act 3 of 2003.
CS No. 1504/16 Page no. 46 of 55
55. The counsel for the plaintiff has also relied upon judgment of our own High Court cited in 2014 (145) DRJ 119 titled Smt. Uma Kapoor & Anr. Vs. Kapil Aggarwal" wherein it was held "In our view the legal position would be that sub Section (2) of Section 22 of the Specific Relief Act recognizes a rule of procedure that Courts should not grant a relief unless it has been specifically prayed for. It is trite that a rule of procedure cannot defeat a right which may flow from a statute or even in equity. Law draws a distinction between a relief which requires additional pleadings and some more facts to be proved vis-a-vis a relief which is subsumed or can be granted without proof of any other fact. Law recognizes that though not specifically asked for, a lesser relief would be included in a main relief prayed for. Thus, in a suit seeking specific performance, it would be open for a Court to order refund of earnest money if equity demands so even in the absence of a specific prayer made. In this context we would only refer to a decision of the Supreme Court reported as 1982 (1) SCC 525 Babu Lal vs. M/s Hazari Lal Kishore Lal &Ors.wherein the Supreme Court referred to sub Section (2) of Section 22 of the Specific Relief Act and interpreted the same concerning a suit for specific performance where there was no prayer made for the defendant to put the plaintiff in possession of the suit property. The Supreme Court held that notwithstanding a prayer made for possession to be granted, it was permissible to direct possession to be handed over.
56. The counsel for the plaintiff has relied upon AIR 2004 Supreme Court 115 titled "Shanti Kumar Panda Vs. Shakuntala Devi"
wherein it was held "A party unsuccessful in an order under Section 145(1) would initiate proceedings in a competent court to establish its entitlement to possession over the disputed property against the CS No. 1504/16 Page no. 47 of 55 successful party. Ordinarily, a relief of recovery of possession would be appropriate to be sought for. In legal proceedings initiated before a competent court consequent upon attachment under Section 146(1) it is not necessary to seek relief of recovery of possession. As the property is held custodia legis by the Magistrate for and on behalf of the party who would ultimately succeed from the court it would suffice if only determination of the rights with regard to the entitlement to the possession is sought for. Such a suit shall not be bad for not asking for the relief of possession."
57. The counsel for the plaintiff has relied upon AIR 1986 Allahabad 39 titled Gyasuddin Vs. Allah Tala Waqf Mausuma"
wherein it was held "that the suit for injunction simpiciter was not rendered bad for not seeking the additional relief of possession, since in the instant case the order of attachment dated January 4, 1966, was subsisting when the suit was instituted on September 24, 1968. Despite the finding recorded under Section 146 Cr.P.C. by the Civil Court, therefore on September 24, 1968, since the possession of the date of the suit was that of the superdar, and in this manner the property was in custodia legis, it was of no consequence that the plaintiff h ad not in addition claimed the further relief of possession besides seeking injunction by way of restraint against the defendants to obtain release of the property in their favour."
58. In view of the above, the counsel for the plaintiff stated that the parties knew from the beginning that the suit property falling in Khasra No. 27/1 now falls in Plot No. B-143, to B-147 even if the relief has not been sought categorically by mentioning the numbers of plot even then the defendant No.1 have not been taken by surprise by claiming CS No. 1504/16 Page no. 48 of 55 the same as the defendant No.1 knew about the property claimed by the plaintiff falls in Plot No. B-143 to B-147 Shivalik, Malviya Nagar, New Delhi and plaintiff is the owner of the property falling in khasra no. 27/1 which is now falls in plot no. B-143 to B-147. In order to effectually and substantially doing justice it will be appropriate that the relief be granted to the plaintiff in respect of Plot No. B-143 to B-147.
59. The defendant No.1 has failed to substantiate its claim as well as to create any dent in the claim of the plaintiff no suit for declaration has been filed by the defendant challenging the records filed by the plaintiff which has come on court record and against them on the ground that the documents were forged and fabricated. Under Section 91 and 92 of Indian Evidence Act no amount of oral testimony or contention can be looked into in contradiction to the documentary evidence. The pleothera of documents establishes that plaintiff is the owner of land falling in khasra no. 27/1 now falls in plot No. B-143 to B-
147. The defendant No.1 has not filed any document of title. The defendant No.1 cannot take any benefit from certain statement of the plaintiff given before the appellate court or showing ignorance regarding the number of plots and plot holders as he is concerned with this own land and rightly so. DW-2 Anupam Dhar could not tell as how much land was left unacquired at Village Hauz Rani. He admitted that plan was also sanctioned by DDA in 1988-1989. If it was so then the suit was already pending and the doctrine of lis pendene also applied.
60. Similarly, the Counsel for the defendant has challenged the authenticity of demarcation report but the same also being a public document is admissible in evidence and it was open for defendant to call for the witness concerned for creating dent in the same, if so CS No. 1504/16 Page no. 49 of 55 advised. The defendant could have also moved for demarcation for their area which was allotted to them if this piece of land was part of the acquired land/allotted land. The legal possession implies the real constructive possession and possession cannot be inferred by way of laying down pipelines etc. and as the land in dispute is lying vacant the possession of open plot will follow the title. Ld. Counsel for the plaintiff has relied upon Sunil Kumar Basu Vs. Dr. Dwinjindra Nath Mitra 1997 (Supplementary) Civil Court Cases 379 wherein it was held that "Suit for permanent injunction is maintainable as the suit land belongs to the plaintiff. Mere fact that the defendant connected pipe lines, sewage pipes, water pipes etc. through that land does not mean that the defendant became the owner in possession and also does not give any right to the defendant to claim right over that land and in that case the suit was decreed." It has been further held in Shanti Kumar Panda Vs. Shakuntala Devi, 2004 (1) SCC 438 : 2004 AIR SC 115 that "Where there is dispute over possession of property and Magistrate has attached the property U/s 146 (1) Cr.P.C., then it is not necessary for the unsuccessful party to seek the relief of possession from the court and a mere adjudication of rights would suffice in as much as the attachment property is held custodial egis by the Magistrate for an on behalf of the party who would be successful from the competent court by establishing his right to possession over the property". Further reliance is placed upon AIR 1986 Allahabad High Court Page 39 wherein suit for injunction without prayer for possession was not held bad where property was under attachment u/s 145 Cr.P.C. on the date of the suit. The document Ex.PW-1/1 Offer No. 1027; mutation Ex.PW-1/2; notice of demarcation dated 30.09.1985 Ex. PW- 1/3; demarcation report dated 17.2.1986 Ex.PW-1/4 are documents prior to the sale deed and cannot be said to be manipulated because CS No. 1504/16 Page no. 50 of 55 plaintiff was not at all in picture at that time. The other relevant document i.e. letter dated 13.11.1986 Ex.PW-1/8; letter dated 27.02.1986 of Assistant Settlement Commissioner Ex.PW-1/9 and Khasra Girdawari, Jamabandi, mutation, AKS Sizra Ex.PW-5/1; Ex.PW- 5/2 and Ex.PW-5/3; PW-1/10 are proving the case of the plaintiff to which there is no rebuttal by the defendant. No dent could be created in the testimony of plaintiff's witnesses. Hence, in these circumstances the suit of the plaintiff is held to be maintainable in the present form. In view of the above, all the issues i.e. issue No. 2,5,6,7 and 8 are decided in favour of the plaintiff and against the defendant No.1.
61. Issue No.3:- It has been argued by the Ld. Counsel for the defendant No.1 that the suit has not been properly valued for the purposes of court fee and jurisdiction and ad-volerum court fee should have been paid as per Section 7(V) of the Court Fee Act and the plaintiff shall have assessed the value of the suit land in 1987 and should have filed ad-volerum Court Fee on market value and suit for declaration, injuciton similar is not maintainable.
62. The Ld. Counsel for the plaintiff argued that the Court Fee as per Section 7(iv) of Court Fees Act is payable as the present suit is for Declaration & Permanent Injunction. No possession has been claimed in the suit, as possession of the property in question was always with plaintiff. The suit for the purposes of Court Fee & Jurisdiction has to be valued under Section 7(iv)(c)(d) of Court Fees Act, 1870. The suit has been properly valued for Court Fees and jurisdiction.
CS No. 1504/16 Page no. 51 of 55
63. The Ld. Counsel for the plaintiff further argued that Court Fee is not payable under Section 7(v) of Court Fees Act as this is not a Suit for Possession. As such, suit is not to be valued on the basis of market value as alleged by the defendants under Section 7 (v) of Court Fees Act. Regisered Sale Deed is in favour of the plaintiff and defendant is trying to encroach upon the alleged area of plaintiff. In these circumnstances, it is not a suit for possession, plaintiff has not claimed any relief of possession in the suit as plaintiff is in the possession of the same. Therefore, there was no question of payment of advelorum court fee. Accordigly this issue is decided in favour of the plaintiff and against the defendant.
64. Issue No.4:- In the instant case the plaintiff had purchased the suit proprety on 04.09.1986 from Shubh Ram. Thereafter raised construction over the same and cause of action firstly arose on 11.09.1986 when defendant tried to dispossess the plaintiff and thereafter on 12.09.1986, 13.09.1986 and 21.09.1986. On 30.09.1986 the order was passed for attachment of the land in question by the concerned SDM under Section 145/146 of Cr.P.C. The revision against the orders of the SDM bearing Crl. Rev. No.97/1986 was filed the same was allowed by the court of Sh. S.C.Jain, ADJ, Delhi vide judgement dated 25.09.1987 as mentioned in the replication and the order of the SDM was set aside. The Criminal Revision bearing No. 202/1987 filed by Sh. Anupam Dhar was dismissed by the Hon'ble High Court vide order dated 04.11.1987 as during pendency of the suit the SHO was appointed as custodia legis. During the trial of the suit also the possession of the property was with SHO, P..S. Hauz Khas who has given the possession to the land to the plaintiff after the documents dated 19.08.2011 passed by Sh. Ajay Goel, the then Senior Civil Judge, CS No. 1504/16 Page no. 52 of 55 The cause of action arose when the suit of the plaintiff bearing No. 455/1986 was dismissed on an application under Order VII Rule 11 CPC moved by the defendant and finally when on 05.01.1987 defendant refused to admit the ownership of the plaintiff the present suit was filed in January 1987. The cause of action is continuous and in view of above, the suit is well within the limitation.
65. The learned appellate court while remanding the matter back to the trial court has made certain observations regarding the change of land use. The counsel for the plaintiff has argued that the land use is governed by Master Plan. As per Master Plan, the land use for the area, where property in question is situated is "Residential". The Layout Plan of the land falling in Khasra No. 27/1, had been approved by DDA. Once the layout plan is approved by DDA/Competent Authority in 1985, released in 1986, the land use of the property stands changed to "residential". The counsel for the plaintiff further argued that the appellate Tribunal, MCD in its judgment dated 04.06.2012 had directed the DDA for sanction of building plan for residential use only after satisfying itself that it forms part of the layout plan of the "Shivalik Colony". The plaintiff has filed the building plan for sanction with the South Delhi Municipal Corporation in pursuance of the order dated 07.02.2013 passed by Sh. R.K.Gauba, the then District Judge, Saket and the same was sanctioned by the Municipa Corporation. The documents sanctioned by South Delhi Municipal Corporation has been placed on record. The DDA and MCD sanctioned the building plan when the land use is residential. In the present case, in the additional affidavit by way of evidence the plaintiff has categorically stated that as per master/zonal plan the land use is residential there is no cross on the same aspect. Thus it is established that the land use has been CS No. 1504/16 Page no. 53 of 55 changed to residential once the layout plan has been approved by the DDA.
66. Other Objections taken by DDA etc. do not warrant adjudication. Defendant is trying to project that other Objections taken by DDA & L&DO have also to be considered and Issues have to be framed. It is submitted that present suit for Permanent Injunction and Declaration of ownership of land falling in Khasra No. 27/1, Patti Hamid Sarai against the society. Appellate Court has observed that title of land cannot be granted without U.O.I and DDA being party who are in better position to explain the title of suit land. Thus, court has only to consider that aspect of Written Statement and court is not to consider other objections/issues being raised by DDA, L&DO etc. Accordingly, all the issues are decided in favour of the plaintiff and against the defendant No.1.
Relief :
67. In view of the above observations, the suit is decreed in favour of the plaintiff and against the defendants with cost and the decree of declaration is passed to the effect that the plaintiff is absolute owner and was/is in lawful possession of the suit land comprising of 1 bigha in Khasra No. 27/1, Village Hauz Rani, Patti Hamid Sarai, Tehsil Mehrauli, New Delhi now forming part of Plots No. B-143 to B-147 now known as Shivalik Malviya Nagar, Delhi, uptill the time the same was attached by the Court of the then Ld. SDM U/s 145 and 146 Cr.P.C. The decree of declaration is also passed to the effect that the suit land after the order of attachment of Ld. SDM was in possession of Ld. SDM for and on behalf of the plaintiff and is in custodial legis as after the order of the CS No. 1504/16 Page no. 54 of 55 Hon'ble High Court dated 04.11.1987, the SHO, Hauz Khas and his successor was appointed receiver who had taken the possession on behalf of the Court and subsequently thereafter the possession of the land was handed over to the plaintiff by SHO after the judgment and decree dated 09.08.2011. Decree of injunction is also passed hereby restraining the defendant no.1, its president, vice president, secretary, members, associates, staff, workmen and labourers from interfering and forcibly dispossessing the plaintiff from the suit land as well as from forcibly and illegally demolishing the construction existing thereon. The suit land is now clearly defined as forming part of plots No. B-143 to B-147 now known as Shivalik, Malviya Nagar, Delhi. The order of SDM dated 30.09.1986 was set aside earlier as observed above and SHO, P.S. Hauz Khas was appointed as receiver and possession was given to him with direction that he will keep the possession during the pendency of appeal. Further, as the appeal was allowed SHO, P.S. Hauz Khas was directed to act as receiver during the pendency of the suit and now since the suit has been decreed in favour of the plaintiff, SHO, PS Hauz Khas to act as Receiver comes to an end. The plaintiff is considered to be in possession of the suit property henceforth.
68. Decree sheet be prepared accordingly. File be consigned to Record Room after due compliance.
VINOD Digitally signed
by VINOD
KUMAR KUMAR GAUTAM
Date: 2018.06.08
Announced in the Open Court GAUTAM 18:33:16 +0530
on 08.06.2018
(V.K. Gautam)
Additional Senior Civil Judge
Central District: Tis Hazari Courts: Delhi
CS No. 1504/16 Page no. 55 of 55