Delhi District Court
Delhi Development Authority vs Sh. Rajesh Garg on 1 December, 2009
IN THE COURT OF Dr. KAMINI LAU: ADDL.
DISTRICT JUDGE13: CENTRAL DISTRICT: DELHI
RCA No. 38/2009
Delhi Development Authority
Vikas Sadan,
INA, New Delhi
Through
Director (LM) I.
............ Appellant
Versus
Sh. Rajesh Garg
S/o Sh. Om Prakash Garg
R/o 109, Kewal Park,
Azadpur, Delhi
Through its Special Counsel
Sh. Om Prakash Garg
............ Respondent
Date of Institution: 6.3.2002
Arguments heard on: 6.10.2009
Date of Decision: 1.12.2009
: J U D G M E N T :
This appeal is directed by the appellant against the judgment and decree dated 8.1.2002 passed by the Ld. Civil Judge in a suit for injunction filed by the respondent. The case of the appellant is that the land in suit is situated in 1 Khasra no. 262/ 258/ 217/4 min of village Bharola belonged to the Gaon Sabha and was vested in the Central Government on the urbanization of the village and consequent upon the vesting of the land in the Central Government the same was placed at the disposal of the DDA under Section 22 of the Delhi Development Act, 1957 to be developed and maintained as green. It is pleaded that the land in question was a part of the land vested in the Gaon Sabha of village Bhalora which land was lying vacant and was not in occupation of any person including the plaintiff/ respondent before this court and was to be developed as green and the respondent/ plaintiff before the Ld. Trial Court has no right, title or interest there in.
It is alleged that the impugned judgment/ decree is against the law and facts of the case and the Ld. Trial Court has failed to properly appreciate the evidence lead by the parties and has erred in not holding that Khasra no. 262/258/217/4 min of village Bharola belongs to the Gaon Sabha and had been placed at the disposal of the appellant 2 by the Central Government. According to the appellant, the Ld. Trial Court has also erred in not appreciating that the respondent has no right titled or interest over the land in question and any agreement to sell and power of attorney etc. executed in the absence of any rights in land was of no avail to the respondent. It is further pleaded that the Ld. Trial Court should have held that under the guise of the suit for permanent injunction the plaintiff is in fact seeking much more and therefore, the notice under Section 53 B of DD Act was required. It is also stated that the suit has not been properly valued for the purposes of court fee and jurisdiction.
According to the appellant, while deciding the issue no.2 the Ld. Trial Court has contradicted itself in placing its reliance on the testimony of PW3 Lalit Rana, Patwari who had deposed that the land measuring 200 bighas 10 biswas in respect of Khasra no. 262/258/217/4 min of village Barola, Adarsh Nagar is a Gaon Sabha land as per their record whereas at the same time while deciding the issue no.1 the Ld. Trial Court has held that there is no 3 revenue record produced by the DDA on the aspect of vesting of the land in Gaon Sabha which findings on the face of which are contradictory. It is further pleaded that consequent upon the urbanization of village the land vests in Central Government and such urbanization took place after the issuance of the notification under the Municipal Corporation Act and the said notification is not required to be proved and therefore, an inference was required to be drawn by the Ld. Trial Court. It is further stated that observations of the Ld. Trial Court that the transfer of land to the Horticulture department had not been proved is of no effect since the land had been placed at the disposal of the DDA and it was immaterial whether it was further transferred by it to its Horticulture Department or to any other department. According to the appellant the respondent had failed to prove the original ownership of the land as per the revenue record and the documents filed by the respondent were of no consequence which aspect has been ignored by the Ld. Trial Court. It is stated that at no point of time any threat has been issued to the respondent as 4 the land was lying vacant and the Ld. Trial Court should have framed an issue in this regard which he did not do.
No reply to the appeal has been filed. It is evident from the record that alongwith the appeal an application under Section 5 of the Limitation Act has also been filed for condonation of delay. The main ground raised in the application is with regard to the delay caused on account of departmental procedure. No reply to the said application has been filed. I have considered the grounds raised in the application. In the interest of justice, I allow the application under Section 5 of the Limitation and hereby condone the delay of 49 days in filing the appeal.
It is further evident that during the course of proceedings the Ld. Predecessor of this court had recalled PW3 Lalit Rana Patwari for reexamination and clarification. The said witness has in his additional evidence before this court specifically deposed that Khasra no. 262/258/217/4 min of village Bharola, Tehsil Model Town Distt. North West has a vast area of land about 300 400 bigha out of which about 200 bighas and 12 biswas was 5 in possession and ownership of Gaon Sabhaand 88 bighas is in possession of M/s. Capital Housing Company. The witness is unable to tell which portion of land is in possession of M/s. Capital Housing Company nor can he tell about the Khasra nos. without the physical verification. The witness is also unable to tell whether the land had been transferred to the DDA nor can he tell if the plaintiff/ respondent has any right, title or interest over the suit property. The said witness was thereafter has been re examined with the relevant revenue record from the North West District pertaining to Khasra no. 262/258/217/4 min of village Bharola, Tehsil Model Town, Distt. NorthWest i.e. the Jamabandi/ khatoni for the year 198889 and Sajra of the village was produced. After seeing the record, the the witness has testified that there are so many recorded owners of the land and the Gaon Sabha is the recorded owner of two khatas one bearing khata no. 69 measuring 100 bighas of land as abadi deh and another bearing khata no. 70 measuring 100 bighas and 12 biswas as banjar in the said Khasra no. According to him, M/s. Capital Housing 6 Company is the recorded owner of 1/4th share out of 113 bighas and 2 biswas of same khasra no. In his cross examination the witness has stated that no land has been shown in the name of Gram Sabha in the Jamabandi and it is only as per the entries recorded in Khatoni, that Gram Sabha has been shown as the owner. The witness, however, has stated that as per the entries on the revenue record no land has been sold by M/s. Capital Housing Company to the respondent. He is also not aware if the Horticulture Department of DDA looks after the land of the Gaon Sabha of village Bharola and has no personal knowledge.
Ld. Counsel appearing on behalf of the DDA has vehemently argued that the Ld. Trial Court has in fact decided the issue of ownership and possession of the property in the suit property despite the fact that the suit was only for injunction simplicitor and no issue with regard to the possession and ownership had been framed. He has contended that the Ld. Trial Court had not dealt with the case in proper procedure right from the very beginning and the Ld. Trial Court should have presumed that after the land 7 placed at the disposal of the government, it can transfer the same to the concerned department and since the land was required to be maintained as green, it would have been transferred to the Horticulture department. He has pointed out that the Ld. Trial Court is erroneous in its conclusion that the DDA has not placed any documentary material on record to prove that the land in dispute belonging to the Gaon Sabha. According to him, the testimony of Mehardin DW1 is very clear in this regard who has very specifically testified that the land measuring 12 bigha was transferred to the Horticulture Department for maintaining the same as green which notification No. SO 2190 dated 20.8.1974 is Ex.DW1/1, which was done by the government under Section 22 of the DD Act. It is further pointed out that the site plan placed on the judicial record by the plaintiff was only a rough sketch and does not depict the alleged plot as a part of the regularized colony.
I have considered the rival contentions. The witness of the defendant Mehardin Patwari has in his oral 8 testimony testified that the land which falls in Khasra No. 262/258/217/4 min of village Bharola was placed under the management and control of DDA by the Ministry vide notification no. S.O. 2190 dated 20.8.1974 which land of 12 bigha was transferred to the Horticulture Department on 29.7.1980 for maintenance as green and is still vacant, possession of which is with the DDA. He has placed on record the copy of the aforesaid notification which is Ex.DW1/1. I have gone through the said notification and it is not evident as to how many land was transferred. No demarcation of the suit land has been done nor any such report has been placed on record. It is also not clear from the said notification as to how much land was with the Gaon Sabha. In fact Lalit Rana Patwari has also been examined in the court at the instance of the appellant and even before the appellate court but he has not been able to give the exact details of the land which was in possession of the Gaon Sabha. Further, in so far as the witness of the plaintiff is concerned, PW1 has specifically deposed that the property 9 in question was in the name of M/s. Capital Housing Company and it was sold to number of people and had it been lastly purchased by the plaintiff, as alleged the documents in respect of the same have been placed on record. It was necessary for the appellant DDA to have carried out the demarcation and placed the report pertaining to the same on record to show the extent of area which was originally in possession of the Gaon Sabha and the area which was sold to Capital Housing Company. Rather on the contrary despite repeated opportunities and the witness from the department having been reexamined on two occasions even before this appellate court, the witness had still not been able to provide the details regarding the extent of land which was in possession of Gaon Sabha and that in possession of M/s. Capital Housing Company. The witness of the appellant DDA, DW1 has only proved the notification from which notification it is not clear as to which portion of the land under the concerned Khasra no. was transferred to the DDA. On the other hand the respondent who is the plaintiff before the Ld. Trial Court 10 has proved that he is in continuous possession of the land in dispute and therefore, cannot be dispossessed without adopting due process of law.
In this view of the matter, I find no illegality or infirmity in the judgment/ decree of the Ld. Trial Court dated 8.1.2002. The appeal is hereby dismissed being devoid of merits. Parties to bear their own costs. Decree sheet be prepared accordingly. Trial Court record be sent back alongwith the copy of this order. Appeal file be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 1.12.2009 Addl. District Judge: Delhi 11 RCA No. 38/2009 DDA Vs. Rajesh Garg 1.12.2009 Present: Sh. S.D. Sharma, advocate for the appellant.
None for the respondent.
Vide my separate detailed order dictated and announced in the open court, the appeal is hereby dismissed being devoid of merits. Parties to bear their own costs. Decree sheet be prepared accordingly. Trial Court record be sent back alongwith the copy of the detailed order. Appeal file be consigned to Record Room.
(Dr. Kamini Lau) ADJ: DELHI/ 1.12.2009 12