Delhi District Court
Sh. Prem Kumar Chaurasiya Etc vs State(Nct Of Delhi) Etc on 3 June, 2015
IN THE COURT OF SH. SUMIT DASS, SENIOR CIVIL JUDGE-CUM-
RENT CONTROLLER (NORTH ), ROHINI COURTS, DELHI
Suit No. : 256/15.
Sh. Prem Kumar Chaurasiya etc. ... plaintiffs
Versus
State(NCT of Delhi) etc. ... defendants
ORDER:-
1. Vide this order, I shall dispose of an application under Order 39 rule 1 and 2 r/w section 151 CPC which has been preferred by the plaintiffs along with their suit praying therein/seeking the relief that the defendants be restrained from dispossessing the plaintiff from the area under their occupation in Khasra No. 183 and 168 situated within Revenue Estate of village Siraspur, Delhi and not to further interfere in the peaceful possession of the plaintiffs until the final disposal of the suit.
2. i. In short, case of the plaintiffs is that they had purchased the properties comprising in khasra No. 183 admeasuring 1041 sq. yards and 168 admeasuring 235 sq. yards situated within the revenue estate of village Siraspur, Delhi(hereinafter referred to as "suit property"
cumulatively) from different owners. Plaintiffs are poor persons and are earning their livelihood by working as labour on daily wages and have no other shelter except their respective houses in the suit property. The plaintiffs had purchased the land/portions on different dates ranging from Suit No. 256/15 1 of 9 Prem Kumar Chaurasiya etc. Vs. State(NCT of Delhi) etc. 1989-2012 and constructed their houses thereon. The mode of acquisition of each of them alongwith the dates of signing power of attorney and the portion/area bought by the respective plaintiffs is summarised as under:-
S. No. Plaintiff Date of Land Area(in Khasra No. Executing sq. yards) Agreement to Sell 1. Sh. Prem Kumar 15.06.1998 76 168 Chaurasiya 2. Sh. Jagdish Chand 21.08.1991 80 183 Mishra 3. Manjit Kaur W/o Lt. 07.12.1992 40 183 Sh. Balwant Singh 4. Ms. Kanta Devi 20.12.1999 30 183 5. Sh. Mant Singh 20.12.1999 60 183 6. Sh. Naval Kishore 21.11.2002 28 183 7. Sh. Ram Narayan 09.04.1997 28 ¼ 183 Thakur 8. Sh. Sawaran 28.02.2000 28 ¼ 183 Thakur 9. Ms. Poonam Singh 17.02.1989 56 ½ 183 10. Sh. Chunnu Bad 24.08.2001 300 183 11. Ms. Manju 19.09.2012 25 183 12. Ms. Babita Devi 24.04.2008 15 183 13. Ms. Rani Devi 19.08.2009 40 183 14. Ms. Pinki 12.07.2012 50 183 15. Ms. Beti Bai 02.03.2008 50 183 16. Sh.Santosh Kumar 12.03.2008 30 183 17. Ms. Sheela Devi 12.03.2008 30 183 Suit No. 256/15 2 of 9 Prem Kumar Chaurasiya etc. Vs. State(NCT of Delhi) etc. 18. Arjun Singh S/o 20.03.2008 30 183 Dharam Dev 19. Ms. Paramjeet Does lost 50 183 20. Sh. Subodh Singh 26.03.2008 40 183 21. Ms. Gurmeet Kaur 18.03.2009 30 183 22. Sh. Sudhir Kumar 26.03.2008 40 168 Chauhan 23. Sh. Vishav Nath 12.07.1990 42 168 Yadav 24. Sh. Dev Narayan 21.04.1997 42 168 Yadav ii. The said suit property/area was declared as unauthorised colony by Delhi Govt. in the year 1990. The Hon'ble Delhi High Court in LPA No. 130/2011 in the matter of 'Kali Charan Vs. Govt. of NCT of Delhi' dt. 02.07.2011 had granted stay against the demolition of houses built in Bhagat Singh Park Extension and had directed the DDA as follows:-
"In view of the aforesaid was redirect the GNCT Delhi to take a decision in respect of the regularization keeping in view the communication made by DDA on 13.05.2010, by the end of February, 2011 till the decision is taken the status quo order shall continue. The appellants shall not be disturbed from their possession subject to the condition that would not raise new construction or shall not encroach any further area."
In the said LPA khasra No. 168 and 183 were not shown as acquired land by the DDA as per the letter vide dt. 13.05.2010 written to the GNCT, Delhi hence, the suit property does not fall in the acquired land of DDA. Despite the said fact DDA officials had partly demolished Suit No. 256/15 3 of 9 Prem Kumar Chaurasiya etc. Vs. State(NCT of Delhi) etc. the area situated in the Khasra No. 168 and 183 during the last week of March, 2015. Apprehending similar action against them the plaintiffs have joined and filed the present suit.
3. Upon notice, defendant No. 1 had filed a short reply submitting that as per revenue record maintained by the land falling in Khasra No. 183(4-13) and 168(4-16) were acquired vide award No. 8/1991-92. Further the said land belongs to Central Govt.('Sarkar Daulat Madar') and reflected in Jama 'Bandi'/'khatoni.'
4. Whereas defendant No. 2 DDA had filed the written statement taking preliminary objections that the plaintiffs have not come with clean hands and had deliberately concealed material facts from the Court. The present suit has only been filed by the plaintiffs to gain undue advantage over the defendant No. 2 by abusing the process of law. Plaintiffs are illegal tress passers on the suit property which is owned by defendant No. 2. Elaborating further it was contended that the Khasra No. 183 stands acquired vide award No. 8/91-92 and physical possession was handed over to defendant No. 2 by LAC/Land and Building department on 18.09.2004 which was further handed over to the Northern Division of defendant No. 2 on 22.09.2004. A small area of 3 Biswas was not handed over being constructed one. In the entire area flats of EWS category had been built up and construction was going on. Plaintiffs were illegal encroachers on the land of defendant No. 2 and DDA had filed a complaint at police station Badli which culminated in FIR No. 615/15. On merits the aforesaid stand was reiterated. Rest of the plaint averments were denied in toto.
5. Heard either side.
6. The aspect of governing the discretion at the stage of Suit No. 256/15 4 of 9 Prem Kumar Chaurasiya etc. Vs. State(NCT of Delhi) etc. disposal of interlocutory application is well-settled and it depends purely of there being (i) a prima facie case, (ii) balance of convenience is in favour of the plaintiff and (iii) on the facet of irreparable loss and injury. These principles needs to be taken into consideration.
7. On 19.05.2015 I had appointed a local commissioner for inspection of the site. Local Commissioner had filed the record which is part and parcel of the record. None of the parties has objected to the same. Reference to the same shall be made in subsequent para(s). It is relevant to note that some part of the order dt. 19.05.2015 which forms the mandate of the Local commissioner and the same reads as under:-
"Ld. counsel for plaintiff submits that plaintiffs had built up their houses in Khasra No. 183 and 168 in the Revenue Estate of Village Siras Pur in an unauthorised colony namely Bhagat Singh Park. They had built up their houses since the year 1989 till 2012. They were all in peaceful possession of the same and having all the documents to substantiate their possession. It is further stated that DDA had demolished some of the houses in Khasra No. 168 and 183 during the last week of March, 2015 which was illegal. It is further submitted that in LPA No. 130/11 Kali Charan Vs. Govt. of NCT, Delhi it was stated by the Ld. counsel for DDA that the Khasra Nos. were not DDA acquired lands and as such it is stated that defendant DDA be restrained from carrying out any demolition in the Khasra Nos. as stated/the houses of the plaintiff as depicted in the site plan annexed alongwith the plaint.
Ld. counsel for plaintiffs further submit that the factum of possession and the ground reality can be gauzed through a Local commissioner at his cost in as much DDA is still persisting in demolishing the suit property and in that situation suit shall be rendered infructous.
Considering the facts and circumstances, I appoint Sh. Puneet Singhal Advocate Mobile No. 9891217746 and 08826687687 as Local commissioner in the present case. He shall visit the suit property tomorrow at 2 p.m. and take photographs and prepare the rough site plan. Till the report of the Local commissioner party are directed to maintain status quo. DDA is specifically restrained from carrying out any demolition in respect of the suit property till the next date Suit No. 256/15 5 of 9 Prem Kumar Chaurasiya etc. Vs. State(NCT of Delhi) etc. of hearing."
8. Now coming to first of all prima-facie case, the plaintiffs claim that they have purchased the property and are in peaceful possession thereof and further the fact that Khasra No. 183 and 168 were not acquired ones. Whereas the stand of the defendants that either of the khasras were acquired one.
In this regard the kabza karayawahi shows that the kabza of Khasra No. 168 was taken on 28.09.2003 and the kabza of khasra No. 183 on 18.09.2004. The copy of the award has already been filed which reflects that both the khasra numbers have been acquired. That being the situation in the teeth of such documents of unimpeachable nature the stand of the plaintiffs that they are owners in possession of the suit property is negated to the core.
9. Further the menace of acquiring property or rights in the property through documents other than sale deed also affects the plaintiffs who are rendered with virtually no right in respect of the plots which they claim to be in possession thereof. Reference usefully in this regard can also be made to the judgement of Suraj Lamps Industries P Ltd. Vs. State of Haryana (2009) 7 SCC 363 wherein transfers by such documents as GPA, agreement to sell/Will etc. were deprecated as being the modes of transfer of property rights.
Secondly even the chain of documents of none of the plaintiff is complete whereby it could be probablised that they were rightful/genuine owners of the property commencing right from the 'Bhoomidar' or their rights in the land otherwise unaffected by the acquisition process or as to the fact whether any of them was putting up Suit No. 256/15 6 of 9 Prem Kumar Chaurasiya etc. Vs. State(NCT of Delhi) etc. in 3 Biswas land which was not possessed on account of being built up.
10. Now viz-a-viz the ground realities also the plaintiffs had also not disclosed the fact that the entire houses/pacca construction of their houses was already demolished and most of them were putting up in tents or in temporary brick houses. The property was already demolished and construction of DDA flats was going on in full swing. The Local commissioner had in his detailed report noted the aforesaid facts and had taken a large number of photographs of the site. All the plaintiffs were putting up in tents/temporary structures and the same were put up/squatting within the boundary walls of the DDA flats.
11. Ld. counsel for the defendant has urged that on account of the stay order the construction work has been stalled and the plaintiffs are impeding the further construction work/the process of laying pipelines. Thus, DDA had also preferred an application u/o 39 Rule 4 CPC for vacation of the same.
12. The defendant - DDA has also lodged an FIR bearing No. 615/15 u/s 447/506/34 IPC against the plaintiffs in P.S. S.P. Badli. In the said FIR it is contended that in the intervening night of 19.05.2015 and 20.05.2015 certain persons had threated the neighbour site and erected 20 jhuggis at site with a help of bamboo and PVS sheets. The land belongs to DDA and utilized for construction of road and laying of services. The said FIR probablises the fact that the suit property/the area in their occupation was already demolished by DDA and the plaintiffs were by way of the present suit trying to reclaim/encroach back the area. Thus, the plea that the plaintiffs were in settled possession since long is also palpably not made out.
13. Ld. counsel for plaintiffs had contended that the plaintiffs Suit No. 256/15 7 of 9 Prem Kumar Chaurasiya etc. Vs. State(NCT of Delhi) etc. were in possession of the suit property and Khasra No. 168 and 183 were not part and parcel of the land which was a notified one in as much as in a writ petition titled as 'Kali Charan Vs. Vs. Govt. of NCT of Delhi' i.e. LPA No. 130/2011 the said khasra Nos. were not reflected. Now in my opinion, the said plea also does not cut any ice in view of the fact that the documents i.e. the Award as well as 'Kabza Karyawahi' have been placed on record. The contention that the khasra Nos. in hand were not notified - on the basis of the submissions made in the writ petition is also stretching an argument to the absurdity as the contentions made in cases pertaining to other parties/litigants cannot be ip so facto applicable to present case.
14. In the gamut of facts and circumstances it is apparent that the plaintiffs have no right, title or interest in the suit property in as much as the land in question has already been acquired and possession taken in the year 2003/2004. There cannot be any injunction against the true owner. The plaintiffs are tress passers and encroachers on the suit property. They have no prima-facie case at all. In the given facts and circumstances, there is no need to discuss the other two ingredients i.e. balance of convenience and irreparable loss and injury.
15. Application u/o 39 Rule 1 and 2 CPC stands dismissed. Interim order stands vacated. However, no demolition should be carried out at least one week from today and the plaintiffs be given time to move out on their own - remove their belongings.
16. Pleadings are complete. Admission denial of documents not pressed for. On the basis of the pleadings of the parties following issues framed:-
1. Whether the plaintiff is entitled for decree of permanent Suit No. 256/15 8 of 9 Prem Kumar Chaurasiya etc. Vs. State(NCT of Delhi) etc. injunction, as prayed for? OPP
2. Whether the suit of the plaintiff is without any cause of action? OPD
3. Whether the plaintiff has not come with clean hand and has suppressed the material facts disentitling from seeking the relief of injunction? OPD.
4. Relief Put up for PE on 30.09.2015. List of witnesses be filed within four weeks from today. Advance copy of the affidavit be supplied to the opposite party 10 days prior to the next date of hearing.
Announced in the open court (Sumit Dass)
on 03.06.2015 SCJ-CUM-RC NORTH
ROHINI COURTS,
DELHI.
Suit No. 256/15 9 of 9
Prem Kumar Chaurasiya etc. Vs. State(NCT of Delhi) etc. Suit No. : 256/15.
03.06.2015 Present : Ld. counsel for parties.
Vide separate order, application u/o 39 Rule 1 and 2 CPC stands dismissed. Interim order stands vacated. However, no demolition should be carried out at least one week from today and the plaintiffs be given time to move out on their own - remove their belongings.
Pleadings are complete. Issues framed.
Put up for PE on 30.09.2015. List of witnesses be filed within four weeks from today. Advance copy of the affidavit be supplied to the opposite party 10 days prior to the next date of hearing.
(Sumit Dass) SCJ-CUM-RC NORTH ROHINI COURTS, DELHI.
Suit No. 256/15 10 of 9 Prem Kumar Chaurasiya etc. Vs. State(NCT of Delhi) etc.