Delhi District Court
Karam Veer Singh vs Delhi Development Authority on 19 January, 2017
IN THE COURT OF SHRI GAGANDEEP SINGH: ADDITIONAL
SENIOR CIVIL JUDGE : JSCC : GUARDIAN JUDGE,
KARKARDOOMA COURTS (EAST)
Suit No. 296/09/92
New Case No. 7531/16
Shri Ram Chander (Since deceased)
Through his LRs.
1. Karam Veer Singh
2. Bhim Singh
3. Satbir Singh
4. Satish Kumar
All s/o. Late Sh. Ram Chander
All r/o. Village Khichripur,
Delhi110091.
..........Plaintiffs
VERSUS
Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, I.N.A. Market,
New Delhi.
....... Defendant.
Date of institution of the suit : 19.10.1992
Date on which order was reserved : 15.12.2016
Date of decision : 19.01.2017
SUIT FOR PERPETUAL INJUNCTION
New Case No. 7531/16 (old case no. 296/09/92) Page No. 1/21
JUDGMENT
1. By way of the instant common judgment I propose to dispose off three suits no. 296/09 and 175/04 and 649/04. The said suits were consolidated for trial by the Ld. Predecessor vide order dated 24.03.2006. The suit bearing no. 296/09/92 is main suit (hereinafter referred to as 'main suit') and 175/04 and 649/04 as 'subsequent suits.
2. The facts in brief in the main suit are that plaintiff (since deceased) claimed that he is permanent resident of village Khichripur since time of his forefathers. He is the owner and in possession of house/premises pertaining to khasra no. 317 min with area measuring 20x15' which is situated in khasra no. 317 min village Khichripur. The same is owned and in physical possession since time immemorial. The plaintiff has been repairing the same for the last few weeks. But on 15.10.1992 at 4.00 pm the officials of defendant visited the premises in question and threatened to demolish the suit property as reflectedin red colour in the site plan. He also went to the police station Kalyan Puri but without any assistance. His premises falls in khasra no. 317 min which is situated in the Abadi Deh, village Khichripur and defendant has no right, title or interest in it. Therefore, the plaintiff has preferred the present suit for permanent injunction seeking restraint against the defendant, its officials etc. restraining them from demolishing, interfering or dispossessing the plaintiff from the premises / house situated in khasra no. 317 min., village Khichripur, Delhi.
3. In the subsequent suits, facts are identical wherein the plaintiffs New Case No. 7531/16 (old case no. 296/09/92) Page No. 2/21 have pleaded that they are residents of village Khichripur for the last many generations. Their property falls in abadi deh of village Khichripur in khasra no. 317, Khewat No. 267, measuring 28 bigha 1 biswas as per revenue record. The possession of the plaintiffs have been shown in the revenue record of the year 1985 to be 1 bigha 10 biswas and same continues to be reflected in the later period Khasra girdawris. The said land is situated within firni of the village. As per the site the house of the plaintiffs is located there and the remaining open space in their possession is being used for growing vegetables, tying buffaloes and for storage etc. The said land is governed under Delhi Land Reforms Act 1954 which came into picture much prior to DMC Act 1957 and DDA Act 1957. Both the said Acts do not govern the land in question. But officials of the DDA came at the site on 24.05.1994 claiming that said open space belongs to them. They did not listen to the plea of plaintiffs and also failed to produce any document in support of their claim. They threatened to remove or vacate belongings of the plaintiffs by demolishing it.
4. Further during the pendency of the present case, one Ram Chander filed a suit with respect to his land falling in khasra no. 317 (hereinafter referred to as main suit). In the appeal against the order under Order 39 rule 1 and 2 CPC, the then Ld. Additional District Judge constituted the board for demarcation of the land. In pursuance of the said order, the board submitted its report dated 12.07.2002 upon which plaintiff herein also places reliance with respect to the demarcation of their land. It is New Case No. 7531/16 (old case no. 296/09/92) Page No. 3/21 quite apparent from the report that the land in question measuring 1 bigha and 10 biswas reflected in the demarcation report belongs to the plaintiffs and defendants have been falsely claiming the said land to be falling in other khasra numbers. Hence the plaintiffs have filed the present suit seeking restraint against the defendant from demolition or forcible dispossession of plaintiff from the land measuring 1 bigha and 10 biswas falling in khasra no. 317 as depicted in the site plan.
5. The summons of settlement were issued in the said suits to the defendants. In the main suit, written statement was filed by the DDA wherein they pleaded that the suit is liable to be dismissed for want of notice under Section 53 B of DDA Act. They further claimed that the land in question in the main suit falls in khasra no. 587/202 village Khichripur which has been placed at their disposal vide notification no. F.8(8)/75/L&B dated 17.01.1976. The plaintiff has encroached upon the government land and thus has no right to file the present suit.
6. In the subsequent suits the written statement was filed on behalf of DDA to the amended plaint. It was pleaded that plaintiffs have built up ten shops and five rooms unauthorizedly which were removed by them on 13.05.1994 and 24.07.2001. The said land falls in khasra no. 316 (9
06) which has been placed at their disposal vide notification no. F.8(8)/75/L&B dated 17.01.1976.
7. The rejoinder to the said written statements was filed by plaintiffs reiterating the contents of plaint and denying the contents of written statement.
New Case No. 7531/16 (old case no. 296/09/92) Page No. 4/218. On the basis of said pleadings, Ld. Predecessor in the main suit vide order dated 07.04.2004 framed the following issues:
1. Whether the suit is barred under the provisions of Section 53 (B) of DDA Act ? OPD
2. Whether the suit is properly valued for the purpose of court fees and jurisdiction ? OPD
3. Whether the suit is barred by the limitation ? OPDP
4. Whether the land in dispute falls in khasra no. 587/202 ? OPD
5. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for OPP
6. Relief.
9. In the subsequent suits issues were framed vide order dated 15.11.2002 and 12.10.2001 respectively. But the said issues in subsequent suits are not relevant due to consolidation of the trial.
10. That vide order dated 23.01.2006 the trial in all the said three suits was consolidated by Ld. Predecessor. The evidence has been recorded only in the 'main suit' by both parties and said evidence has to be read in all the three suits. The plaintiffs in order to prove their case firstly examined Satbir Singh, one of the LRs of plaintiff as PW1. He reiterated the entire contents of the plaint in his affidavit Ex. PW1/A. He claimed that he is in possession of the land comprising 1 bigha 10 biswas, out of which shop on the ground floor and house on the first floor measuring 20x15' has been constructed. It is in possession of his father since time New Case No. 7531/16 (old case no. 296/09/92) Page No. 5/21 immemorial. He also relied upon demarcation report Ex. PW1/1 dated 12.07.2002. He also relied upon the khasra girdawri of khasra no. 317 min Ex. PW1/2 to Ex. PW1/4.
He was extensively cross examined by counsel for DDA.
11. PW2 is Patwari from the office of SDM Preet Vihar who brought the record with respect to khasra girdawri of the year 199798 Ex. PW2/1, khasra girdawri of the year 199495 Ex. PW2/2.
12. PW3 is Shri Mauji Ram who was the Chairman of the board constituted by the court of Ld. Additional District Judge vide order dated 01.05.2001 for demarcation of the land. He filed his demarcation report alongwith other members of the Board Ex. PW3/1. He also relied upon one notice issued to DDA Ex. PW3/2.
He was extensively cross examined by counsel for DDA wherein the authenticity and validity of the demarcation was questioned.
13. Thereafter DE was led on behalf of defendant who examined Shri Ram Kishan, Assistant Settlement Officer in DDA as DW1. He reiterated the defence of defendant in his affidavit Ex. D1. He also relied upon the document i.e. the Acquisition Award no. 28 B Ex. DW1/1, Possession report Ex. DW1/2 and notification of placing the land at disposal of DDA Ex.DW1/3. He also relied upon the objection filed to the demarcation report dated 12.07.2002 as Ex. DW1/4, the reply to the same by plaintiff Ex. DW1/5 and rejoinder as Ex. DW1/6. The separate demarcation was carried out by them dated 22.11.2002 which was also relied upon as Ex. DW1/7.
New Case No. 7531/16 (old case no. 296/09/92) Page No. 6/21He was extensively cross examined by counsel for plaintiff.
14. No other witness was examined on behalf of defendant and DE was closed.
15. I have heard the Ld. Counsel for plaintiff, Ld. Counsel for defendant and gone through the record of the case carefully.
16. My findings on the abovesaid issues are as follows: Issue no. 4 and 5 (Main Suit).
4. Whether the land in dispute falls in khasra no. 587/202 ? OPD
5. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for OPP
17. The burden of proving the issue no.4 was placed upon the defendant and on the contrary the burden of proving the issue no. 5 was placed upon the plaintiff.
18. It was argued on behalf of Ld. Counsel for plaintiff that his case with respect to injunction is squarely proved through demarcation report Ex. PW3/1. The DDA has failed to prove their defence as none of the demarcation reports shows the suit property to be falling either in khasra no. 587/202 as claimed in main suit and in khasra no. 316 as claimed in subsequent suits. The revenue record Ex. PW2/1 also shows the ownership as well as possession of plaintiffs. Further the DDA has been taking contradictory stands by claiming in the subsequent suits that primary school falls in khasra no. 316 and in one earlier suit it was claimed that it falls in khasra no. 317 min. Similarly the site plan filed by the DDA Ex. DW1/7 is in contradiction to their earlier admissions.
New Case No. 7531/16 (old case no. 296/09/92) Page No. 7/2119. On the contrary, ld. Counsel for DDA argued that demarcation report Ex. PW3/1 is liable to be discarded as the chairman of the board Shri Mauji Ram who conducted it, failed to perform his duty honestly and diligently. Disciplinary proceedings were also initiated against him. They also disputed the finding of the later demarcation report dated 12.05.2016 submitted by SDM Mayur Vihar. The separate objections to the same were also filed by them as the crucial permanent reference points were stated to be ignored by the board. The total area found by them falling in khasra no. 317 is also against the revenue record. The board also found certain area of JJ colony to be falling in khasra no. 317which is absolutely wrong as the said land falling in khasra no. 317 was never acquired by the government. The area of the EDMC primary school has also been shown to be much larger than the land acquired by the government.
20. The case of the plaintiff in the main suit is based upon the premise that the ancestors of the plaintiffs were the owners and in possession of house / premises out of land measuring 1 bigha and 10 biswas in khasra no. 317 min., village Khichripur. As far as the ownership of the plaintiff either in the main suit or subsequent suits of the land falling in khasra no. 317 village Khichripur is concerned, same is not a disputed fact. The revenue record has been got proved by the plaintiff as Ex. PW2/2 and Ex. PW2/1 and the same shows possession as well as their ownership. But the exact area in their possession is a disputed fact and even the plaintiff's document refutes the said fact. The only content of dispute in New Case No. 7531/16 (old case no. 296/09/92) Page No. 8/21 all the said matters is demarcation of the suit property.
21. The claim of the plaintiff in the main suit as well as in the subsequent suits is that it falls in khasra no. 317 min of the village Khichripur which is in the abadi deh.
22. On the contrary, the DDA has claimed that land in main suit falls in khasra no. 587/202 and in the subsequent suits falls in khasra no. 316 village Khichripur. As far as the claim of ownership of the land falling in khasra no. 597/202 and 316 is concerned, the same is also not disputed fact that the same was acquired by the government and subsequently placed at the disposal of the DDA. Thus once the issue of ownership of both the parties is not in dispute and only content of dispute between the parties is the demarcation and identification of the land in question. The burden was upon the plaintiff to prove the said fact.
23. The plaintiff in order to prove the said fact simply relied upon demarcation report submitted by PW3 Shri Mauji Ram Ex. PW3/1. He was appointed pursuance to the order of Ld. Appellate Court alongwith Suraj Prakash, Tehsildar Preet Vihar and Dharampal Kanungo DDA vide order dated 01.05.2001. The mandate which was given to them was to identify the land falling in khasra no. 317 measuring 1 bigha 10 biswas and land falling in khasra no. 587/202 which was transferred to the DDA. It was argued by plaintiff that his report as well as the site plan submitted by him clearly proved his case. The portion reflected in the site plan at point F, G, H, I was claimed by the plaintiff to be the suit property in all the said three suits.
New Case No. 7531/16 (old case no. 296/09/92) Page No. 9/2124. But cross examination of PW3 makes it quite apparent that said report was never accepted by the DDA and even objections were preferred by them as Ex. DW1/4. In the objections certain fundamental issues were raised which puts a big question mark over the veracity and validity of the said demarcation report. The ignorance of the masavi of the year 189596 of the village which is basic document while proceeding with the demarcation runs counter to the mandate as well as procedure provided in the Delhi Land Reforms Rules, 1962. The report was also questioned by the DDA on the ground that they were never joined in the demarcation proceedings and the said report has been prepared at their back. The report also makes it quite apparent that only once notice was issued to the DDA for 11.04.2002 but they failed to appear. The report also makes it quite apparent that on that day complete proceedings could not take place and subsequently proceedings were conducted on 17th as well as 18th April 2002. Later on also proceedings also continued from 10.07.2002 to 12.07.2002. In none of the said proceedings officials of DDA were invited nor were informed. The cross examination of PW3 makes it quite clear that only once notice was issued to them and later on no notice was ever issued. Even if for the sake of arguments it believed that once DDA officials ignored the notice, the board was under duty to inform about the subsequent dates to the DDA upon which the demarcation proceedings was to be conducted. The said report wherein no opportunity was given to one of the effected party cannot be relied upon. The said report thus also ignores the mandate New Case No. 7531/16 (old case no. 296/09/92) Page No. 10/21 provided under Rule 170 of Delhi Land Reform Rules as well as principles of Natural Justice. The chairman of the Board was not acting as representative of DDA but as Court Commissioner hence the other affected party's view should have been considered before finalization of report. To support this view I am guided by Anil Sagar Vs. Gaon Sabha and ors., 84 2000 DLT 212.
25. The other demarcation report which has come on record is the demarcation conducted on behalf of DDA which is Ex. DW1/7 dated 22.11.2002. The perusal of the said demarcation report also makes it quite apparent that it was a single sided affair wherein not even the plaintiff or revenue officials were joined for taking their inputs. The said demarcation report is also thus not reliable.
26. It has already been observed that the only content of dispute between the parties is with respect to the identification of the suit property which both of them claims to be owner and both of them claimed to be falling in different khasra numbers of village Khichripur. The burden was upon the plaintiff to show its location and identification alongwith its boundaries. But in neither of the cases plaintiff has proved the site plan which is most crucial documents for deciphering the identification of the suit property. Even the pleadings with respect to description of suit property are also ambiguous. In the main suit even the total area was not disclosed and it was simply pleaded as 20'x15'. In the subsequent suits it is not pleaded as to whether suit property includes the houses already built or not. The plaintiff even failed to file photographs New Case No. 7531/16 (old case no. 296/09/92) Page No. 11/21 of the suit property which could have helped his case regarding its identification and its boundaries.
27. The said inherent fallibilities in the demarcation reports of both parties were noticed by Ld. Predecessor and accordingly vide order dated 23.01.2015 fresh demarcation was ordered to be conducted by resorting more scientific method i.e. TSM method. Both the parties agreed to the said proposition that TSM method is more reliable for the purpose of demarcation of suit property. Accordingly board was constituted by the worthy DM (East) comprising Tehsildar, Kanungo and Patwari, Mayur Vihar. They finalized the demarcation report by joining both parties in the entire proceedings. Firstly the report dated 23.07.2015 was submitted after conclusion of demarcation but the same was withdrawn consequent to the objections raised by DDA. The said objections were preferred on the ground that certain irregularities have been committed while preparing the report. The reference point which included the Well as reflected in Masavi in the year 189596 in khasra no. 519 was not taken into account. The dimensions from the reference point taken were also stated to be ignored. The board headed by SDM Mayur Vihar accordingly took cognizance of the said objections and withdrew their previous report. They again in all fairness carried out entire exercise for second time by fairly giving all the opportunities to both parties. Every effort was made as is quite apparent from the status report as well as entire proceedings of the demarcation report dated 12.05.2016 in finding out reference point i.e. "Well" as claimed by the DDA. The Well could New Case No. 7531/16 (old case no. 296/09/92) Page No. 12/21 not be found at the given site and accordingly same was dropped. A total 11 reference points were considered out of 10 reference points were used for demarcation. The said exercise conducted by the board shows the efforts and fairness on their part in carrying out the mandate given to them. More than the prescribed reference points were taken by them.
28. The concerned agency whose services were taken for use of scientific instruments acted according to the directions given by the board members as well as parties herein. The detailed dimensions of entire properties falling in khasra no. 310, 311, 312, 313, 213, 314, 315, 316, 317, 202 and 305 have been recorded by them alongwith the area occupied by respective land owners in the said khasra numbers.
29. Again the said demarcation report was challenged by DDA on various grounds which primarily appears to be reiteration all the objections already preferred by them which led to withdrawal of the first report. The said objections appears to be without any basis and do not warrant any interference in the said demarcation report. Both the said exercises which led to conclusion of demarcation report dated 23.07.2015 and 12.05.2016 came with somewhat identical findings. The proceedings attached with the demarcation report clearly reflects that even DDA officials failed to locate the permanent reference points which is now again one of the objections raised by them. The reply to the objection which was filed by Tehsildar, Mayur Vihar dated 12.09.2016 also clarifies the entire report and shows the objection of DDA to be without any basis. The last objection that the part of JJ colony cannot be New Case No. 7531/16 (old case no. 296/09/92) Page No. 13/21 part of the land in khasra no. 317, though on paper appears to be correct. But on the ground it is quite apparent it to be part of the land falling in khasra no. 317, though same was never acquired. It thus appears that after acquisition, the possession proceedings seems to have been taken place without assistance of revenue officials working on the ground. The same is also corroborated as EDMC school also exists on the part of land in khasra no. 317 min, though same was never acquired.
30. The plaintiff preferred not to file any objection to the last demarcation report dated 12.05.2016 and thus in a way agreed with all the findings recorded in it. As the plaintiff never challenged the said findings, it has to be seen whether such demarcation proceedings report supports the case of the plaintiff or not. The property of one of the plaintiffs Ram Chander (in main suit) has been reflected in the demarcation map. The property of Ram Chander has been described in purple colour with boxes, property of plaintiff Rattan Singh (in the subsequent suit) has been described in green colour and that of Bal Dei (in the subsequent suit) in orange colour. The property of Ram Chander in the demarcation report is stated to be measuring 318.66 sq. yards which has been given number 21A. The plaintiff on the contrary in his suit (main suit) has described the area of his ownership in khasra no. 317 min to be (out of 1 bigha 10 biswas) the house measuring 20'x15'. The area thus comes out to be 33.33 sq. yards which is much less to that of the area which is now occupied by the plaintiff as per demarcation report. The demarcation report thus contradicts the claim of the plaintiff New Case No. 7531/16 (old case no. 296/09/92) Page No. 14/21 regarding occupation of the land and rather shows him to be occupying much more than his legal entitlement.
31. It is admitted case of the plaintiff that plaintiff Ram Chander that the suit property is a house wherein ground floor is shop and upper portion is used for the purpose of residence. But the said plea has remained unsubstantiated as neither the electricity, water connection bill were filed on record nor documents with respect to shop were filed. Only the girdawri has been proved that too from the year 1992 to 1998 Ex. PW1/3 to Ex. PW1/5. In Ex. PW2/1 is girdawri of the year 199798 wherein class of land column no.5 describes the entire property i.e. 1 bigha 10 biswas to be 'abadi' and 'school'. In the previous girdawri of the year 199495 the description in column 5 of the said land measuring 1 bigha 10 biswas was stated to be only houses. Thus it is quite apparent that in major part of the said land which the plaintiffs claims to be under their ownership in khasra no. 317 min Khichripur is now occupied by government school. The said fact is also corroborated by demarcation report dated 12.05.2016. The area of the school was found by the board in khasra no. 317 min to be 2129.44 sq. yards. Hence it is quite apparent that the area of the land occupied by school is more than 2 Bigha. Though it is not clear as to whether the said school occupies the entire 1 bigha 10 biswa of the land owned by the plaintiffs or not. But certainly the school is occupying major part of the land owned by plaintiffs, then it seriously puts dent on the case of the plaintiffs who claim the injunction with respect to entire land falling in khasra no. 317 min measuring 1 New Case No. 7531/16 (old case no. 296/09/92) Page No. 15/21 bigha 10 biswas (in subsequent suit) without being in possession.
32. In the subsequent suits filed by the plaintiffs namely Rattan Singh and Bal Dei bearing no. 16/09 and 17/09 respectively both of them claimed permanent injunction qua property measuring 1 bigha 10 biswas of khasra no. 317 min. The said claim of face of it is liable to be rejected as revenue record Ex. PW2/1 itself rebuts their claim of possession as school is also occupying major part of said land. Thus injunction qua suit property has been sought without the plaintiff being in possession of entire suit property. Thus suit is liable to be dismissed in view of the law laid down by Hon'ble Supreme Court in Anathula Sudhakar Vs. P. Buchi Reddy, AIR 2008 SC 2033.
33. As per the claim of plaintiffs the area in their ownership must be around 1500 sq. yards but the demarcation report dated 12.05.2016 which is not objected by the plaintiff puts a big question mark over the said claim of plaintiff. The properties of both said plaintiffs have been described in detail in the report. The total of the said properties of the plaintiffs comes out to be much more than 1500 sq. yards. The description of the property of plaintiffs shows that same has now been converted into tin shed shops and furniture shop has been described as Ch. Rattan Singh Dedha Market, Baldai (tin shed/shop), furniture shops etc. But in the plaint same has been described as vacant piece of land without any construction. Thus the demarcation report dated 12.05.2016 reveals that despite the status quo order by the Ld. Appellate court dated 22.10.1994 the plaintiff changed the nature of the entire suit property New Case No. 7531/16 (old case no. 296/09/92) Page No. 16/21 without taking permission of the court or informing the court in this regard.
34. The properties of plaintiffs as reflected in the demarcation map also shows that property of Rattan Singh and Bal Dei are also divided by service road. But it is not clear from the case put forth by the plaintiff as to whether said service road is a part of their land or not. The suit property described in subsequent suits is open piece of land without any division of it through service road. Even the khasra girdawri Ex. PW2/1 does not shows the said land to be vacant and open. Thus again the said demarcation report as well as revenue record puts a serious doubt over the case of plaintiffs.
35. The plaintiffs in their written arguments as well as in the oral arguments referred to many other documents showing the weakness of the defence of the defendant regarding their claim over the suit property. But none of the said documents were got proved. The said documents were filed after the initiation of the trial and hence same cannot be considered without the permission being sought.
36. Lastly, it was also argued on behalf of plaintiffs that the DDA has also failed to prove their own defence and rather they tried to change their defence during the trial of main suit. Firstly they contended that suit property falls in khasra no. 587/202. But thereafter preferred application u/o 6 rule 17 CPC by seeking amendment of their written statement stating that it falls in khasra no. 311 village Khichripur.
37. No doubt, the defendant has taken defence in their written New Case No. 7531/16 (old case no. 296/09/92) Page No. 17/21 statement that suit property falls in khasra no. 587/202 village Khichripur and they tried to change their defence by amending that it falls in khasra no. 311. The said application was dismissed vide order dated 09.05.2005 and said order has attained finality. It is also quite apparent that the evidence which has been led on behalf of defendant is on the basis of said rejected amended plea that suit property falls in khasra no. 311. The DW1 in his affidavit Ex. D1 deposed by contending that suit property falls in khasra no. 311 village Khichripur. It is quite apparent that said defence is beyond pleadings and hence liable to be rejected.
38. Even otherwise the defendant has not been able to prove its defence as only demarcation report filed by them Ex. DW1/7 was a one sided affair. The TSM demarcation report dated 12.05.2016 also rebuts the defence of the defendant but it is inconsequential. It has already been observed that plaintiffs have miserably failed to prove their own case and failure on the part of defendant in proving their defence is of no use. The plaintiffs have not proved their own case and cannot seek help from the weakness of defence of defendant. In this regard, the judgment of Hon'ble High Court titled as Lalita James Vs. Ajit Kumar, AIR 1991 MP 15 is relevant wherein it was observed as under: "It is well settled rule of law that burden of proving his case to obtain relief from the Court is always on the plaintiff who must adduce reliable and admissible evidence for the said purpose. Section 102 of the Evidence At contains the broad rule in this behalf and therefore, provides the legal guidelines in the matter. As a necessary corollary to the aforesaid rule is the New Case No. 7531/16 (old case no. 296/09/92) Page No. 18/21 rule that the plaintiff must succeed on the strength of his own title and not be sustained by any weakness in the case of defendant."
39. In view of abovesaid reasons, I am of considered opinion that plaintiff has failed to prove the identity of suit property its location, boundaries and total area in their possession. The demarcation report also puts serious question mark over the legality of land in their occupation which is much more than their ownership claim. Accordingly issue no. 5 is decided against the plaintiff. Issue no.4 has also remained unproved but the same is inconsequential.
Issue No. 1.
Whether the suit is barred under the provisions of Section 53 (B) of DDA Act ? OPD
40. The burden of proving issue no.1 was placed upon the defendant. No argument was advanced on behalf of the defendant in this regard. The plaintiff herein has preferred the suit for permanent injunction citing urgency in approaching the court due to impending threat of dispossession of suit property. Thus any insistence upon issuance of prior notice as required u/s 53 B (3) of the DDA Act would have defeated the very object of instituting the suit. The pleadings of the suit makes it quite apparent that the case of the plaintiff squarely falls within the purview of Section 53 B (3) of the Act. Accordingly issue no.2 is decided against the defendant.
Issue no. 2 New Case No. 7531/16 (old case no. 296/09/92) Page No. 19/21 Whether the suit is properly valued for the purpose of court fees and jurisdiction ? OPD
41. The burden of proving the issue no.2 was placed upon the defendant as they raised the objection with respect to the valuation and pecuniary jurisdiction of this court. No arguments were advanced on behalf of defendant on the said aspect. The plaintiff herein has simplicitor filed a suit for permanent injunction only and thus was required only to pay fix court fees and value the suit accordingly. The plaintiff has valued the suit at Rs.130/ in terms of Section 7 (IV) (d) of Court Fees Act and has paid the appropriate court fees upon the same. Accordingly issue no.2 is decided against the defendant. Issue no.3 Whether the suit is barred by the limitation ? OPD
42. The burden of proving issue no.3 was placed upon the defendant. No evidence has been led in this regard by the defendant. The claim of plaintiff at the time of institution of the main suit was that he is in settled possession of the suit property and in the first week of October 1992 the officials of DDA visited the suit property and threatened to demolish or remove him from it. The suit has been filed in the year 1992 only when the cause of action arose in favour of plaintiff and hence within the period of limitation. Issue no.3 is accordingly decided against the defendant.
New Case No. 7531/16 (old case no. 296/09/92) Page No. 20/21Relief
43. In the light of my findings upon the issues no.4 and 5, I am of considered opinion that plaintiff has failed to discharge burden of proof placed upon him regarding entitlement of decree of permanent injunction. Accordingly, all the three suits stands dismissed. No order as to cost. Decree sheet be prepared accordingly. File be cosigned to record room.
Announced in the open court ( Gagandeep Singh) on this 19th day of January 2017. ASCJ/JSCC/G. Judge (East) Karkardooma Courts, Delhi.
New Case No. 7531/16 (old case no. 296/09/92) Page No. 21/21