Delhi District Court
Smt. Saroj Kumar Govil vs Union Of India on 14 September, 2021
IN THE COURT OF MS. RISHIKA SRIVASTAVA
CIVIL JUDGE-03(WEST):TIS HAZARI COURTS:DELHI
SUIT NO. 178/2016
1. Smt. Saroj Kumar Govil
(Since deceased through her legal heirs)
(i) Shri. Anupam Kumar Govil
S/o Shri C.P. Govil,
R/o 114, Jor Bagh, New Delhi.
(ii) Smt. Subh Shalini Rastogi,
W/o Sh. R.C. Rastogi,
D/o Late Shri C.P. Govil,
R/o D-9/7, Vasant Vihar,
New Delhi.
2. Shri Anupam Kumar Govil
S/o Sh. C.P Govil
r/o 114 Jor Bagh
New Delhi
3. Mrs. Subh Shalini Rastogi
W/o Sh. S.C Rustogi
D/o Late Sh. C.P Govil
r/o D-9/7 Vasant Vihar
New Delhi .....Plaintiffs.
Versus
1. Union of India
CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 1 of 24
Ministry of Works & Housing,
Now the Urban Development,
Nirman Bhawan, New Delhi.
2. Delhi Administration,
(Law Section), Old Secretariat,
New Delhi.
3. The Secretary,
(Land & Building)Department,
Delhi Administration,
Vikas Bhawan, New Delhi. ..... Defendants.
Date of institution : 18.05.1984
Date of reservation : 21.08.2021
Date of decision : 14.09.2021
JUDGMENT
1. This is a suit for declaration and permanent injunction which was suit was instituted in the year 1984 by Sh. C.P. Govil against the Union of India (defendant no. 1), the Delhi Administration (defendant no. 2), the Delhi Development Authority (defendant no. 3), Secretary (Land and Building Department) (defendant no.
4), Sh. Anupam Kumar Govil (defendant no. 5), Smt. Saroj Kumari Govil defendant no. 6), and Smt. Shalini Rastogi (defendant no. 7). During the pendency of the suit, the original plaintiff Sh. C.P. Govil unfortunately expired and hence, Smt. CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 2 of 24 Saroj Kumari Govil, Shri Anupam Kumar Govil and Smt. Shalini Rastogi were transposed as plaintiffs in the capacity of being the legal heirs of the deceased original plaintiff. Thereafter, Smt. Saroj Kumari Govil also expired and the suit was continued by Shri Anupam Kumar Govil and Smt. Shalini Rastogi in the capacity of being her legal representatives as well. Vide order dated 19.03.2010, defendant no. 3 Delhi Development Authority was deleted from the array of parties and the suit was proceeded against the defendants no. 1, 2 and 4 only.
2. A brief history of the litigation proceedings so far is required to be given at the very outset. Vide judgment dated 31.01.2012, the suit was dismissed by the ld. predecessor of this Court. Against the dismissal, the plaintiff preferred an appeal and vide order dated 11.11.2016, the Ld. First Appellate Court remanded the matter back to the trial court with directions to decide the suit a fresh after recording additional evidence on certain specific points.
Plaintiff's version:
3. The facts in brief, as stated in the amended plaint, are:
i. Late Sh. M.L. Govil was the father of Late Sh. C.P. Govil and had purchased 13 bighas and 19 biswas of land comprised in khasra no. 1284/92 and 93, forming part of the revenue estate of village Mohammadpur, Munirka, Delhi;CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 3 of 24
ii. Out of this area of 13 bighas and 19 biswas, 4 bighas 9 biswas were from khasra no. 1284/92 and 9 bighas and 10 biswas were from khasra no. 93;
iii. This land was purchased by Sh. M.L. Govil from its erstwhile owner Sh. Bhoop Singh through a sale deed dated 09.09.1951 which was registered with the Sub-Registrar on 12.11.1951;
iv. Thereafter, land measuring a total of 13 bighas and 11 biswas was acquired through the below-mentioned acquisition awards:
Award Area acquired from Area acquired from No. khasra no. 1284/94 khasra no. 93 717 1 bigha and 13 biswas 1 bigha and 6 biswas 883 2 bighas and 3 biswas -
889 - 8 bighas and 9 biswas Total 3 bighas and 16 biswas 9 bighas and 15 biswas v. After the acquisition, 8 biswas of land was left unacquired in khasra no. 1284/92. This 8 biswas of land forming part of khasra no. 1284/92, revenue estate of village Mohammedpur, Munirka, Delhi is the subject matter of the present suit and is hereinafter referred to as the "suit property";
vi. Since the 8 biswas of land was never acquired, all rights with respect to it continued to vest with Late Sh. M. L. Govil and after his death, they devolved upon the original plaintiff;
CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 4 of 24vii. The plaintiffs are in continuous possession of the suit property;
viii. The award bearing no. 717 pertaining to 1 bigha and 13 biswas out of khasra no. 1284/92 was never challenged and has attained finality;
ix. The award no. 883 pertaining to 2 bighas and 3 biswas was found to be null and void by various courts; however, a compromise was affected between the parties and the plaintiffs were allotted alternate land measuring 2,834.35 sq meters at Factory road, near Safdarjung hospital in lieu of the this land measuring 2 bighas and 3 biswa;
x. Pursuant to the compromise, the original suit was amended and the claim for 2 bighas and 3 biswas was dropped and the matter was proceeded only with respect to 8 biswas of the land which is the suit property now;
xi. Since the defendants have casted a doubt upon the title of the plaintiffs, the present suit was filed seeking the following reliefs:
a) A decree of declaration thereby declaring the plaintiffs to be the owners in possession of the suit property;
b) A decree of permanent injunction restraining the defendants from interfering with the quiet and peaceful vacant possession of the suit property of the plaintiffs and from dispossessing the plaintiffs from it.CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 5 of 24
Version of defendants no. 1, 2 and 4:
4. The defendants opposed the claim of the plaintiff and stated the following in their common written statement:
i. The total area of land present in khasra no. 1284/92 is only 3 bighas and 16 biswas as per the revenue records and field book and not 4 bighas and 4 biswa;
ii. the area of khasra no. 92 was wrongly entered in the jamabandhi as 8 bighas and 7 biswas whereas it was actually only 7 bighas and 14 biswas and in order to correct this mistake, mutation no. 1335 was done;
iii. this mutation was never challenged and became final;
iv. after the correction, the area of khasra no. 1284/92 was 3 bighas 16 biswa;
v. thus, the entire land comprising of khasra no. 1284/92 was acquired vide award No. 717 and 883 and no portion was left unacquired;
vi. the plaintiffs are not the owners of the suit property nor are they in possession of it;
vii. the possession of the entire area in khasra no. 1284/92 is with the defendants.
5. The defendants have therefore argued that the suit of the plaintiffs is liable to be dismissed with costs.
CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 6 of 246. Before proceeding forward, for the sake of clarity, it must be stated that while in paragraph 1 of the plaint it has been stated that the total area of the land purchased from khasra no. 1284/92 is 4 bighas and 9 biswa, the ld. counsel for the plaintiff has argued that the actual area purchased was 4 bighas and 4 biswas and that 9 biswas has been incorrectly mentioned due to a typographical error. In the written statement, the reply given by the defendants is with respect to 4 bighas and 4 biswas only, thereby indicating that they were aware of the correct case of the plaintiff.
Replication:
7. A replication was filed by the plaintiffs in which the averments in the written statement were denied and the case as stated in the plaint was reiterated. The plaintiffs specifically mentioned in the replication that they are in symbolic possession of the suit property.
Issues:
8. After the completion of the pleadings, vide order dated 01.02.2006, the following issues were framed:
i. Whether the plaintiff is entitled to the decree of declaration as prayed for? OPP ii. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 7 of 24 iii. Whether the suit is not within limitation and liable to be dismissed? OPD iv. Whether the suit of the plaintiff is not maintainable for want of notice under Section 53-B of the Delhi Development Authority Act? OPD/DDA Evidence:
9. On behalf of the plaintiffs, only one witness i.e. Sh. Anupam Kumar Govil was examined as PW-1. He furnished his evidence affidavit as Ex. PW-1/A and deposed on the lines of the plaint itself. He relied upon the following documents:
1. Ex. PW-1/1 Site map
2. Ex. PW-1/2 Copy of Death certificate of late Sh. M.L Govil
3. Ex. PW-1/3 Copy of Death certificate of late Sh. C.P Govil
4. Ex. PW-1/4 Copy of Death certificate of late Smt. Saroj Kumari Govil
5. Ex. PW-1/5 Certified copy of order of Sub Judge dated 29.02.1978 in Shiv Lal Sikka Vs. Union of India
6. Ex. PW-1/6 Certified copy of appeal before Sr. Sub Judge in Union of India Vs. A.K Ghatak
7. Ex. PW-1/7 Certified copy of order of Sr. Sub Judge in Union of India Vs. A.K Ghatak 8 Ex. PW-1/8 Certified copy of order dated 25.01.1966 of Hon'ble High Court of Punjab in CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 8 of 24 Union of India Vs. A.K. Ghatak
9. Ex. PW-1/9 Certified copy of order dated 31.07.1967 of Hon'ble High Court of Punjab in Union of India Vs. N.R Mohindra
10. Ex.PW-1/10 and Copy of legal notices dated 08.08.1981 Ex. PW-1/11 and 10.11.1981 respectively
11. Ex. PW-1/12 to Postal receipts Ex. PW-1/15
12. Ex. PW-1/16 A.D Cards and Ex. PW-1/17
13. Ex. PW-1/18 to Photographs Ex. PW-1/28
14. Ex. PW-1/29 Report of the Local Commissioner
15. Ex. PW-1/30 Statement submitted along with report of Local Commissioner
16. Ex. PW-1/31 Letter dated 26.10.85 written by the Local Commissioner to Tehsildar
17. Ex. PW-1/32 to Photographs filed by Local Ex. PW-1/46 G Commissioner along with his report
18. Ex. PW-1/47 to Lease deed, deed of transfer on exchange Ex. PW-1/57 and connected affidavits dated 26.07.1981
10. Thereafter PW-1 was cross examined and discharged.
Plaintiffs' evidence was closed and the matter was fixed for defendants' evidence.
CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 9 of 2411. DW-1 Sh. Rajesh Sharma, Halka Patwari was examined as DW-1. He relied upon the following documents:
1. Ex. DW-1/1 Copy of field book of khasra no. 1284/92 (OSR)
2. Ex. DW-1/1A Certified copy of filed book of khasra no.1284/92
3. Ex. DW-1/2 Copy of Mutation no. 1335 of Village Mohamadpur, Munirka (in Urdu)
4. Ex. DW-1/2A Certified copy of hindi translation
5. Ex. DW-1/3 Certified copy of jamabandi DW-1 was thereafter cross examined and discharged and vide order dated 09.12.2011 defendants' evidence was closed matter was fixed for final arguments.
Judgement dated 31.01.2012 and proceedings before the Ld. First Appellate Court:
12.Vide judgment dated 31.01.2012, the suit of the plaintiffs was dismissed by the ld. predecessor of this Court. Thereafter, an appeal was filed against this judgment wherein the Ld. Appellate Court observed that DW-1 had admitted that earlier the area of khasra no. 1284/92 was shown as 4 bighas and 4 biswas but was later found to be 3 bighas and 16 biswas after the cutting of boundaries i.e tatima. With the view to effectively adjudicate the dispute and to do substantial justice, the Ld. Appellate Court remanded back the matter to this Court and directed the CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 10 of 24 defendants to produce relevant record in respect of the following:-
i. Whether the notice was given before 22.09.1953 to the appellants in respect of the alleged tatima;
ii. The record of tatima may be produced before the court and what procedure was adopted by the Respondent for completing the said procedure of tatima;
iii. Whether any compensation was given by the Respondent to the Appellant in respect of the said land admeasuring 8 biswas which was never acquired by the Government at any point of time and;
iv. The land admeasuring 8 biswas was used for which particular purpose.
Evidence after remand:
13. The matter was remanded back to this court with the directions to decide the matter a fresh after taking on record the aforesaid evidence.
14.Thereafter, the defendants were given multiple opportunities to lead evidence but failed to avail of it. Hence, vide order dated 06.03.2018, defendants' evidence was closed. Thereafter, the plaintiffs conducted further examination of PW-1 Sh. Anupam Kumar Govil whose additional evidence affidavit is Ex PW-1/X. He relied upon the following documents:
1. Ex. PW-1/A Certified copy of sale deed in Urdu CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 11 of 24
2. Ex. PW-1/B English translation of Ex. PW-1/A PW-1 was cross-examined and plaintiffs' evidence was closed on 24.05.2019.
15.Thereafter, final arguments were heard on part of both the parties.
Issue wise findings:
Issue No. 1:
Whether the plaintiff is entitled to the decree of declaration as prayed for?OPP
16.The onus to prove this issue lies upon the plaintiff. In order to successfully establish that the plaintiff is entitled to the decree of declaration that he is the owner in possession, all of the following will have to be proved:
i. The suit property is properly identified and ascertained;
ii. The plaintiffs are in possession of the suit property;
iii. The plaintiff is the owner of the suit property;
The Court will now examine the law and appreciate the evidence produced by both the parties with regards to the above-mentioned points.
(i) Identity of the suit property
17.In a suit where the subject matter is immovable property, it is mandatory that the same should be properly identified. This requirement stems from Order VII Rule 3 CPC as per which in CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 12 of 24 such a suit, the plaint must contain a description of the property sufficient to identify it, and in case such property can be identified by boundaries or by numbers in a record of settlement or survey, the plaint should specify the boundaries or the numbers. In case the description of the suit property is not sufficient to identify it or if the same is vague, the suit of the plaintiff is liable to be dismissed. Reference in this regard may be made to Bandhu Das v. Uttam Charan Pattnaik AIR 2007 Ori 24 wherein with respect to Order VII Rule 3 it was held:
"A bare reading of the above provision makes it is crystal clear that what exactly the land or the area over which the dispute exists is a question which goes into the root of the matter relating to subsistence of the case. In absence of such description in the plaint or supply of the map by annexing the same to the plaint and the evidence to the above effect, no Court would pass a decree, as such a decree would be in executable or would be rendered otiose. Even if the Court finds that the plaintiff had title and possession in respect of the suit land, in absence of proper description, as mentioned in Order 7 Rule 3, C.P.C., the decree cannot be executed."
18. The requirement that property forming the subject matter of suit should be properly identifiable is based both in law and logic. The Court cannot give a decree with respect to an unidentifiable property as the same would make it uncertain and ambiguous, which is not permissible in law and is also against common logic.
CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 13 of 24A decree of the court must be absolutely clear and unequivocal so that it fixes rights and liabilities of parties without any ambiguity and so that it can be executed. A vague decree or a decree which does not exactly and clear state the subject matter is not capable of execution at all. For these reasons, irrespective of the lax attitude displayed by the defendants, this Court will have to delve into the question as to whether the suit property in the instant suit is identifiable or not.
19.In the present suit, with regards to khasra no. 1284/92, it has been stated that 1 bigha 13 biswas were acquired vide award no. 717 and 2 bighas and 3 biswas were acquired by way of award no.
883. Paragraph 3 of the amended plaint mentions that thereafter late Sh. M.L. Govil was left with the possession of "land measuring 8 biswas out of Khasra no. 1284/92, forming part of revenue estate of village Mohammadpur, Munirka, Union Territory of Delhi." Subsequently, award no. 883 was challenged by another person (not party to the present suit) and was declared illegal. However, after that, on 27.10.1989, the plaintiffs and the defendants arrived at a compromise and the defendant was allotted alternate land in lieu of land measuring 2 bighas and 3 biswas out of Khasra no. 1284/92 and the plaintiff withdrew its claim with respect to it. The suit was continued with respect to 8 biswas of land and the plaintiff has prayed for a decree declaring the plaintiffs to be the owners in possession of the "land measuring 8 biswas out of khasra no. 1284/92 situated in the revenue estate of village Mohammadpur, Munirka, Union Territory of Delhi."
CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 14 of 2420.The purpose of repeating the averments of the plaint in brief was to show that the plaintiffs have made absolutely no mention of any identification mark or description sufficient to identify the suit property. Neither is there any mention of the boundaries of the suit property nor is there any description of what areas/properties surround the suit property in all the four directions. In addition, there are no geographical coordinates or any other identification marks mentioned in the plaint on the basis of which the suit property can be identified. All that has been stated is the total area of the suit property and that it is situated in the khasra no. 1284/92, but it is conspicuously silent on where exactly within this larger area it is located. Even the dimensions i.e. the length and breadth of the suit property have not been stated. There is no mention of any site map in the amended plaint. Thus, in the absence of any boundaries or any other description on the basis of which the suit property can be identified and located, the mandatory requirement of order VII Rule 3 CPC has not been met.
21. It must be borne in mind that the case of the plaintiffs, as expressly stated in the amended plaint filed in 1992, is that the plaintiffs are in possession of the suit property measuring 8 biswas. It is not the case of the plaintiff that the suit property requires proper identification and demarcation, after which it should be handed over to the plaintiff. Since the plaintiffs have claimed to be in possession of the suit property, they ought to be aware of the exact geographical location and boundaries of it and CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 15 of 24 ought to have mentioned the same in the plaint itself in compliance with Order VII Rule 3 CPC.
22.The only relevant piece of evidence with respect to the identity of the suit property is the site map Ex PW-1/1. Ld. counsel for the plaintiffs has argued that the portion shown in red therein is the suit property. On the other hand, ld. counsel for the defendant has argued that the portion shown in red is a part of the 3 bighas and 16 biswas of land which has already been acquired and in lieu of which alternate land has already been awarded. The plaintiff has not made any averment in the plaint with regards to this site map. Be that as it may, even this site map Ex PW-1/1 does not mention the exact dimensions (i.e. length and breadth) of the suit property and is not drawn to scale. Thus, this site map does not assist in identifying the suit property with exactness and precision. Moreover, upon a perusal of this site map Ex PW-1/1, it is revealed that it was made by a draughtsman named Sh. P.P. Verma. This draughtman was never examined by the plaintiffs and there is nothing to show exactly how and when the suit property was ascertained, identified and measured by him. These aspects are of paramount importance given that the crux of the defense of the defendants is that the suit property does not exist at all. In addition to that, merely because the site map has been exhibited, does not imply that the contents thereof stand proved. Reference in this regard may be made to Sudhir Engineering Company v. Nitco Roadways Ltd. (1995 (34) DRJ 86) where it was held that:
CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 16 of 24"Endorsement of exhibit number on a document has no relation with its proof. Neither the marking of an exhibit number can be postponed till the document has been held proved; nor the document can be held to have been proved merely because it has been marked as an exhibit."
23.Thus, due to the lack of material details in the site map Ex PW- 1/1, the non-examination of the draughtman and due to the absence of any explanation as how to the portion shown in red was ascertained to be the suit property, this court finds that the site map does not prove the identity and location of the suit property. No other evidence has been produced on this aspect.
24.At this stage, it is also essential to note that the alleged typographical error stated to exist in the plaint with respect to the total area purchased by the predeccsor of Late Sh. M. L. Govil has crept into the examination-in-chief of the PW-1 as well. In affidavit Ex PW-1/A, this area has been mentioned as 4 bighas 9 biswas instead of 4 bighas 4 biswa, which also adds to the lack of clarity in the identity of the suit property.
25.Therefore, for the reasons mentioned above, this court finds that the suit property is not identifiable on the basis of the pleadings or the evidence.
(ii) Possession of the plaintiffs over the suit property:
26. In the present case, the question of possession of the plaintiffs is an extremely material one for two reasons. Firstly, the first and primary relief sought by the plaintiffs is that they are the owners CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 17 of 24 in possession of the suit property and secondly, if the plaintiffs are not in possession, then no declaration as to title can be made in their favour in view of the proviso of Section 34 Specific Relief Act 1963. At this stage it is essential to mention that the court is concerned with the possession of the plaintiff on the date of institution of the suit and not with the current status of possession. Reference in this regard is made to Santoshchandra v. Gyansundarbai (AIR 1975 MP 193) and Mantaj Ali Shah and ors. v. Sajid Sha and ors. ((2020) 1 Cal LT 544).
27.The case of the plaintiff is that they were in possession of the suit property on the date of institution of the suit. The defendants have denied the possession of the plaintiffs in the written statement. The plaintiffs have then stated in their replication that they are in symbolic possession of the suit property. The burden of proof lies on the person who asserts the facts as per Sections 101 and 102 of the Indian Evidence Act 1872. Section 101 provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. Section 102 states that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Apart from these two provisions, Section 103 is also of relevance as it states that the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. Thus, in view of the above-
CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 18 of 24mentioned provisions, it is for the plaintiffs to prove their possession over the suit property.
28.This court will now proceed to analyze the pleadings and the evidence on this aspect. The plaintiffs have stated in the plaint that they are in possession of the suit property. In the replication, they have averred that this possession is symbolic, however, there is no averment as to how the possession is symbolic and who has actual physical possession. In Ex PW-1/A, it has been stated by PW-1 that the possession of the suit property was never taken away from the plaintiffs and that they are still in possession of it. However, both Ex PW-1/A and additional evidence affidavit Ex PW-1/X are noticeably silent on whether this possession is actual or symbolic, and if symbolic then what actually constitutes such possession of the plaintiffs. Thus, the complete and requisite details have not been brought out in the evidence affidavits as mentioned above. In addition to that, the plaintiffs have abjectly failed to produce any other evidence at all to show that they are in possession.
29.It is settled law that while revenue records are not evidence of title, they can be used for proving possession. The plaintiffs could have produced the relevant revenue records to show that they were in possession at the time of institution of the suit but have failed to do so. The only jamabandi or record of rights before this court is Ex DW-1/3, which was produced by the defendants and which pertains to the year 1950-51. It mentions the name of Sh. Bhoop Singh, who is said to have sold the area including the suit land to the predecessor of the plaintiff, as the CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 19 of 24 cultivator, but there is nothing to show that the plaintiffs came in possession of the suit property after the sale.
30.This failure of the plaintiffs to produce evidence for establishing possession alone is sufficient to arrive at the finding that they have failed to discharge their onus of proof. However, it must also be assessed in light of the report of the local commissioner Ex PW-1/29 which states that as on 05.11.1985, there were 128 semi-constructed CPWD Type-IV flats in the khasra no. 1284/92. Since the report shows the existence of a sizeable construction in khasra no. 1284/92, it was all the more important for the plaintiffs to show that they were in possession of the suit property on the date of institution of suit, which the plaintiffs have not done.
31.Thus, the plaintiffs have not discharged their onus of proof and have failed to prove that they were in possession of the suit property at the time of institution of the suit.
32.The consequence of this finding is that firstly, the plaintiffs cannot be said to be the owners in possession of the suit property and secondly, the suit of the plaintiff will be hit by proviso to Section 34 Specific Relief Act which states that:
Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 20 of 24
Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
33. In accordance with the above-mentioned proviso, the plaintiffs must show that they have claimed the further relief to which they were entitled along with declaration. Ld. counsel for the plaintiff has placed reliance upon the judgment of Gian Kaur v. Raghubir Singh ((2011) 4 SCC 567) to contest that since the plaintiffs have also sought consequent injunction, the suit cannot be said to be hit by the abovementioned proviso.
34.This Court has carefully gone through the judgment relied upon by the ld. counsel for the plaintiffs and finds that it is not applicable to the facts of the present suit, since in that case along with the consequential relief of injunction, there was also an alternate prayer for possession. In the present suit, there is no prayer for possession at all. In fact, the plaintiffs have claimed to be in possession but have failed to successfully prove the same for reasons already mentioned above. Upon the failure of the plaintiffs to establish possession, this Court cannot award a decree of mere declaration. Reliance in this regard is placed upon Ram Saran v. Ganga Devi ((1973) 2 SCC 60).
(iii) Ownership of the plaintiffs
35. In light of the findings of this court with respect to (i) and (ii) given above, there is no need to delve into this question. This is because once the identity of the property is not certain, no decree of declaration with respect to it can be given. In fact, the question CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 21 of 24 of identity goes to the root of question of title. Secondly, once the plaintiffs fail to prove their possession, they cannot be considered entitled to a decree of declaration that they are the owners in possession of the suit property.
36. Even though a decision on this aspect is not required, it must be stated that the additional evidence as directed by the ld. first appellate Court has not been produced by the defendants despite opportunity. However, this failure of the defendants does not automatically entitle the plaintiffs to the declaration sought by them. It is settled law that the case of the plaintiffs must be able to stand on its own legs as held in Harish Mansukhani v. Ashok Jain (2009 (109) DRJ 126 (DB)). In Devender Bhati vs. Chander Kanta (2015 SCC OnLine Del 14224) it was stated that the elementary rule of jurisprudence of civil litigation in India is that the plaintiff must stand or fall on the strength of his own case.
37.Thus, this Court finds that the plaintiff has not discharged its onus of proof and issue no. 1 is decided against the plaintiff.
Issue No. 2Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP
38. The plaintiffs have prayed for permanent injunction restraining the defendants, their officers, employees, agents, labourers, contractors and assignees etc. from interfering and dispossessing in the quiet and peaceful vacant possession of the suit property.
CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 22 of 2439.This Court has already arrived at the finding that the plaintiffs have failed to prove their possession over the suit property. Therefore, the permanent injunction as prayed for, which is in the nature of a consequential relief, cannot be awarded.
40.Issue no. 2 is also decided against the plaintiffs.
Issue no. 3:
Whether the suit is not within limitation and liable to be dismissed? OPD
41.With respect to this issue, the onus of proof lies upon the defendants. The defendants have not led any evidence at all with regards to it. For this reason, vide judgment dated 31.02.2012, the issue was decided against the defendants. After the suit was remanded back to this Court, no further evidence was led by the defendants.
42.Therefore, once again this issue in decided against the defendants due to failure to lead evidence.
Issue no. 4:
Whether the suit of the plaintiff is not maintainable for want of notice under Section 53-B of the Delhi Development Authority Act? OPD/DDA
43. The onus to prove this issue was on the defendant DDA. However, defendant DDA has already been deleted from the array of parties vide order dated 19.03.2010. Therefore, no CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 23 of 24 evidence was led on this issue and no decision upon it is required. The issue is disposed of accordingly.
Relief
44.From the above analysis and determination of the issues, this Court holds that the plaintiff has failed establish their case on the basis of preponderance of probabilities. Accordingly, the suit of the plaintiff stands dismissed. No orders as to cost. Decree Sheet be prepared accordingly. Let file be consigned to record room.
Announced in Open Court (Rishika Srivastava) today i.e. 14.09.2021 CJ (West)III THC/Delhi CS SCJ 178/2016 Saroj Kumari Govil (through LRs) vs. Union of India & Ors. Page 24 of 24