Delhi District Court
Koli Samaj Shastri Ngr vs Dda on 14 January, 2025
IN THE COURT OF MS. NEHA PANDEY
JSCC/ASCJ/GJ (WEST),
TIS HAZARI COURTS, DELHI.
Suit No. 6768/2016
CNR no.DLWT03-000001-1997
Shastri Nagar Koli Samaj Delhi-110052
having its Regd. Office at FK-12
Shastri Nagar,
Delhi-110052
Through its President
Sh. Ram Swarup
...........Plaintiff
Versus
1. Delhi Development Authority
Through its Vice Chairman
Vikas Sadan, INA,
New Delhi.
2. The Government of National
Capital Territory of Delhi
Through Public Works Department
(Land & Building Department)
ITO, I.P. Estate,
New Delhi.
3. Sh. Nanak Chand & Baba Nanak Dass
S/o Sh. Faguni
At Shiv Mandir
Sindhora Kalan, Chowki No. 2
Delhi-110052.
4. Smt. Saroj Pawar
Wife of Sh. Raj Vir Pawar
R/o QU-20-A, Pitampura
Delhi-110034.
5. Sh. Harish Chaudhary
CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 1 /28
S/o Chaudhary Nand Lal
R/o C-21, Pratap Nagar
Delhi-110007.
6. Baba Kharak Dass
Alias Baba Pagal Dass Trust
Having its office at Shiv Mandir
Sindhora Kalan, Chowki no. 2
Delhi-110052.
7. Sh. Rajiv Pawar alias Raj Bir
R/o QU-20-A, Pitampura
Delhi-110034.
8. Chaudhary Nand lal
R/o C-21, Pratap Nagar,
Delhi-110007.
...........Defendants
Date of Institution : 11.08.1997
Date of final arguments : 26.11.2024
Date of decision : 14.01.2025
Decision : Dismissed
JUDGMENT
1. The present suit has been filed by the plaintiff seeking declaration, cancellation of allotment of plot to Baba Nanak Das Trust and mandatory injunction.
PLAINT
2. It is the case of the plaintiff that it is a registered society under Society registration Act and Shri Ram Swaroop is the President of Society who has been authorised to represent the CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 2 /28 society in the present plaint. It is further submited that earlier the plaintiff society was not registered and was a branch affilated to Delih Pradesh Koli Samaj and its parental body namely Akhil Bhartiya Koli Samaj registered and the present plaintiff is successor of unregistered society previously known as Koli Samaj Shastri Nagar, Delhi. It is the case of the plaintiff that earlier there was drain from Tri Nagar to Basant Nagar,(Gulabi bagh), Delhi and on both sides of the said drain Jhuggi Dwellers were residng and said locality was known as Nehar ki patri, Basant Nagar, Delhi and the resident of said locality belonged to Koli Samaj who formed the society to look after the welfare of the locality and it residence. After raising funds they constructed a Shiv Mandir in the locality in year 1968 on the land falling in Khasra no.108 in revenue estate of Village-Sindhora Kalan Delhi. Said Shiv Mandir was dedicated to public but the affairs were managed by unregistered society Kohli Samaj shastri Nagar who appointed Shri Khadak Singh of the community as Pujari of the temple who adopted a new name as Baba Pagal Das Tyagi.
The said Pujari died in 1980 and since the land in the revenue record was in the name of Shri Khadak Singh, the unregistered society Koli Samaj moved a petition under section 36(2) Delhi Reform Act in the court of SDM Patel Nagar and vide order dated 09.05.1988 that Shiv Mandir and land bearing Khasra no.108 was recorded in the possession of Koli Samaj, Shastri Nagar.
The defendant no.1 and 2 were planning to construct the road on the said Shiv Mandir after demolishing the structure over the said land and the unregistered society namely Koli Samaj CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 3 /28 made representation to various authorities and to Hon'ble Lieutenant Governor on 26.12.1987 against same who promised to allot an alternative site before the demolition of Shiv Mandir and also promised to inspect the site on 09.01.1988. On said date after inspection alongwith the then minister and officials of MCD he announced for allotment of land of 400 sq.yd to Koli Samaj for Shiv Mandir in Shastri Nagar, Delhi and for grant of money for construction of Shiv Mandir. The unregistered society Koli Samaj filed a suit for permanent injunction against defendant no.1 to 2 on 27.06.1988 wherein an ad-interim injunction was granted in their favour on 30.06.1988 and the defendant no.1 and 2 were restrained from demolition in the Shiv mandir but despite the said order they demolished the Shiv Mandir on 05.07.1988 and Koli Samaj, Shastri Nagar filed the contempt proceeding agianst defendant no.1 and 2. During the pendency of said suit defendant no.1 filed WS wherein it was stated that alternative site measuring 200 sq.yds has already been alloted and possession thereof has been handed over to the Trust on 30.05.1988 without disclosing the name of Trust and its Trustees. Subsequently another representation dated 09.05.1989 was given by the unregistered Society Lieutenant namely Koli Bamaj to the Hon'ble Governor, Delhi for allotment of alternative land for Shiv Mandir and grant of money for its construction and officials of Delhi Development Authority had demolished the said Shiv Mandir. Despite promise no allotment of alternative site was made in favour of Koli Samaj, so the said unregistered Society namely Koli Bamaj, served a Notice Under Section 53 (B) of Delhi Development Authority Act on the defendant No. 1 on CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 4 /28 30.08.1991 and another Notice Under Section 80 of Civil the Code of Procedure dated 30.08.1991 also served on the defendant No. 2, through Advocate and calling upon them to allot the land of 400 Sq.Yds and compensation of Rs.4,0,000/- for reconstruction of Shiv Mandir. The said notices were duly served upon the defendants No.1 and 2 but they failed to give any reply or comply with the said notices. Seeing no alternative, the said unregistered Society namely Koli Samaj, filed a Writ Petition under Article 226 of the Constitution of India against the defendants no.1 and 2, on 03.12.1992 before the Hon'ble High Court of Delhi. Summons of the said Writ Petition were served upon the defendants no.1 & 2 on 22nd March, 1996 and the defendant No. 1 (D.D.A.) filed reply in the form of the counter affidavit along with the annexures i.e photo copies of Ration Card of Mastana Baba Nanak Dass, Trust deed dated 21.03.1988 between Baba Nanak Dass, Smt. Saroj Pawar wife Shri Rajbir Pawar and Mr.Harish Chaudhary son of Choudhary Nand Lal, letter dated 12th May, 1988 addressed to the alleged above named Trustees and letter dated 01.05.1988 by Ranbir Singh Additional Commissioner (Lands), Shri Harjit Singh, Director (DDA), Ministry Urban Development, Nirman Bhawan, New Delhi and set of affidavit and these documents was supplied to the unregistered Society namely Koli Samaj on March on April 1996. Perusal of said documents reveals that the alternative allotment of plot of 200 Sq.yds to alleged Baba Nanak Dass Trust by the defendants No.1&2 is nothing but case of land grabbing by politicians in collusion with the Govt. servants/employees of the defendants No. 2 because the Ration CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 5 /28 Card is attested by Mr. Rajbir, Member of Municipal Corporation, but husband of the second trustee Mrs. Saroj Pawar as is evident from the address of Saroj Pawar in the Trust Deed and address of witness No.1 of the Trust Deed is attested by Mr. Nand Lal Chaudhary who is father of body but trustee no. 3, Mr. Harish Chaudhary. The the allotment of the land by D.D.A. to the alleged trust is high handiness on the part of the officers of the defendants No. 1 & 2. Hon'ble Lieutenant Governor was pleased to announce for the allotment of the alternative plot in lieu of Shiv Mandir to the unregistered Society namely Koli Samaj at the time of his inspection of spot on 9th January, 1988 in the presence of Shri Nand Lal Chaudhary and Shri Rajbir Singh and officials of thedefendants No. 2. The allotment of defendants no. 3 to 5 with the help and connivance of defendants no. 7 and 8 constituted defendant No. 6, to cheat the members of Koli Samaj and deprive them from allotment of alternaitve plot of land in lieu of said demolished Shiv Mandir. So the alleged trust created by the defendants No. 3 to 5 vide Trust Deed dated 21st March, 1988 is fake and bogus and the deed is a sham document. It is prayed by way of present by the plaintiff that:
i) A decree of declaration be passed in favour of the plaintiff and against the defendants declaring the plaintiff being successor- in-interest of unregistered Society namely Koli Samaj who was in possession and control of Shiv Mandir Nehar Ki Patri, Basant Nagar, Gulabi Bagh, Delhi, being entitled for an alternative plot of 400 Sq.yds. from D.D.A in lieu of the demolition of said Shiv Mandir;
CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 6 /28
ii) A decree for cancellation be passed in favour of the plaintiff and against the defendants thereby cancelling the allotment of plot of 200 Sq. yds. allotted vide letter dated 12.05.1988.
iii) A decree of mandatory injunction be passed in favour of the plaintiff and against defendant no.1 and 2 directing them to allot a plot of 400 sq.yds to the plaintiff in lieu of demolished Shiv Mandir and financial assiantance be granted for the construction new Shiv Mandir at the said allotted site.
WRITTEN STATEMENT OF THE DEFENDANT no.1.
3. In the written statement, it is avered that suit is time barred and is liable to be dismissed on this ground alone. The cause of action, if any, for filing the suit against the defendant arose way back on 29.7.1988 when the answering defendant filed its written statement in suit no.694/88 filed by the plaintiff against the answering defendant. The answering defendant as admitted that an alternative site of plot admeasuring 200 sq.yds. has already been allotted and the possession thereof handed over to Trust on 30th May 1988. Thus the cause of action, if any, against the answering defendant had arisen on 29.07.1988 whereas the present suit was filed on 7.8.1997 hence the present suit being hopelessly time-barred is liable to be dismissed.
Defendant no.1 denied that the plaintiff is registered Society duly registered under the Society Registration Act with the Registrar of Society formed by residents of Shastri Nagar, Sindhora Kalan and Tulsi Nagar area. It is further denied that CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 7 /28 Shri Ram Swarup is the President of plaintiff who has been duly authorised to file the suit on behalf of plaintiff. It is submitted that the plaintiff has not supplied any document to the answering leave alone the alleged resolution dated 12.04.1977. As such suit is liable to be dismissed. The said Shiv Mandir was in physical possession of Shri Baba Nanak Dass S/o Guru Pagal Dass Tyagi. After the death of Guru Pagal Dass Tyagi his son Baba Nanak Dass came into possession of the Shiv Mandir. It is further submitted that the Koli Samaj the un- registered Society was never in management, control at possession of the said Shiv Mandir as alleged. It is further submitted that filing of petition under Section 36(2) of the Delhi Lands Reforms Act and order dated 09.05.1988 alleged passed by the concerned SDM inter- alla directing thesildar to record the possession of Shiv Mandir located in khasra no. 108 in revenue, estate of village Sindhora Khurd has no bearing with the present dispute and the same is not binding on the answering defendant. It is submitted that answering defendant was not the party to the aforesaid proceedings before the SDM Apart from it is not clear as to whether the legal heirs of said Baba Pagal Dass Tyagi were party in the said proceedings or not. Therefore, the aforesald order of SDM/RA(Patel Nagar) has no bearing with regard to the adjudication of present dispute. It is denied that any promise was made by the Hon'ble Lieutenant Governor to the plaintiff on 26.12.1987 to allot an alternative site before the demolition of Shiv Mandir. It is further denied that any promise was made to grant the money for construction of Shiv Temple. It is submitted that old Shiv Mandir was demolished on 05.07.1988 after CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 8 /28 allotment and handing over of a plot admeasuring 200 sq.yds. in khasra no.501 and 502 in village Chokhi Mubarakbad (Shastri Nagar) Delhi on 30.05.1988 on the basis of registered Trust deed dated 21.3.88 submitted to the answering defendant by Baba Nanak Dass and two trustees. It is further submitted that plaintiff has not taken any action till date for cancellation of said trust deed which is being alleged as bogus and sham document. It is denied that defendant no.1 were bound to allot an alternative plot to plaintiff in view of demolition of Shiv Mandir on because allotment of an alternative plot in lieu of demolition of the sald Shiv Mandir has already been made to the Trust in question.
WRITTEN STATEMENT OF THE DEFENDANT no.2.
4. It is stated that the suit as framed is not maintainable, since the plaint has not been signed, verified & filed by the original plaintiff who had earlier filed a civil suit No. 694/88 which was dismissed vide justgument dated 02.03.1991.
It is also stated taht there is no cause of action to file the present suit. The plaintiff is seeking the declaration in respect of the allotment of plot in the year 1988 to the defendant No. 3 & others. But cost of the suit has been paid by the plaintiff as Rs. 20/- only instead of the present market value of the plot which is about more than Rs.20 Lacs for which required court fees has not been paid. The temple in question recorded in the possession of Baba Pagal Dass Tyagi in the revenue records whose desciple Baba Nanak Dass was in possession of the said temple after the death of Baba Pagal Dass since 1980. But in the false case by CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 9 /28 Koli Samaj Pefore Before the he SDM, Patel Nagar, Koli Samaj, Sashtri Nagar Vs. Gaon Sabha Sandhora Khurd, the Halqa Patwari gave wrong report of possession. The suit against defendant no. 2 is not maintainable and the same is barred by the provisions of National Capital territory of Delhi Act. The Patwari intentionally made the entry in the Khasra against the year 1987- 1988 without mentioning date of order i.e 09.05.1988 to mislead even the court. The plaintiff has no locus standi to file the present suit. The plaint is liable to be rejected since the suit on the face of it barred by time. The suit is not properly valued for the purpose of of court fee and jurisdiction. The suit is barred by the principals of resjudicata as the question in controversy in the present suit has already stands decide by the Hon'ble High court in civil writ no.1114/1994. Also as per the certificate of registration produced by the Plaintiff dated 01.10.1996 while the earlier suit was dismissed by the lower court on 02.03.1991 and the writ petition in the Hon'ble High court was filed on 03.12.1992, which was dismissed never existed at that time.
WRITTEN STATEMENT OF THE DEFENDANT no.3 and 6.
5. It is also stated that the plaintiff has no locus standi to file the present suit which plaintiff is liable to be rejected that the plaint is liable to be rejected since the suit on the face of it is barred by time as per allegations contained in the plaint. The suit is also not properly valued for the purpose of court fee and jurisdiction. It is further stated that the affairs of the Mandir were managed by Nanak Chand who being disciple of Baba Pagal Dass who always served the Mandir and always fought for safety CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 10 /28 and welfere of Mandir and locality. Koli Samaj society has nothing to do with this Mandir. They have no right, title or interest in Mandir Khadak Singh Pujari was kept by Sh.Nanak Chand who was the sole incharge of the Mandir.He was all in all in the Mandir. That Koli Samaj society never remained in connection of Mandir so no question of management and control by them. It was denied that said Kharak Singh Baba Pagel Dass Tyagi died in 1980, infact he died in the year 1984. Koli Samaj society had no connection in any manner whatsoever with Shiv Mandir and Baba Kharak Singh, Baba Pagal Dass Tyagi at any time. Defendant No.3 Baba Nanak Dass was the close Chela of Baba Kharak Singh, Baba Pagal Deas Tyagi, who had performed all the rights of last ceremony of Baba Kharak Singh in the presence of various Sadhus, sent collected/gathered on the aforesaid ceremonies who declared the defendant No.3, Nanak Dass as Mahant after the death of Kharak Singh Baba Pagal Dass Tyagi, for Shiv Mandir in question and a document was prepared on that day under the signatures of varicus Sadhus, Sant etc. After the death of Baba Fagal Das for a long time i.e 8 years plaintiff did not try to record his name in revenue record, but all of a sudden in 1988 it got recorded its name in revenue record only to create the proof as to grab the land and money. The defendant No.3 was never a party in any of the case even filedwith respect to the Shiv Mandir defendant no.3 Baba Nanak Dass had sent many applications to different authorities and also to Lieutenant Governor for allotment the alternative plot for Mandir therefore, on 9th Jan. 1988 the Lieutenant Governor and others visited the Mandir spot and found the defendant No.3 was CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 11 /28 in possession and on the representation/application to Lt. Governor bey defendant no.3 who had shown all the documents to them on spot. They denied that Lt. Governor promised to allot the plot of 400 sq. yds to Koli Samaj Society in place of Mandir place/ land. Also, it is stated in Written statement that the suit for Declaration can not be filed after 3 yrs as the plaintiff came to know that the possession has already been handedover to the Trust. DDA has also filed the documents alongwith allotment letter which discloses all the names and address of trustees on 03.05.1989 before the court of Sh.D.S. Pawaria, S.J.Delhi and thus, the plaintiff has wrongly stated that it came to know about allotment to trust only in 1996.
WRITTEN STATEMENT OF THE DEFENDANT no.4,5,7 and
8.
6. Same submission were made in their WS as those of defendant no.3 and 6 .They also stated the same fact.
ISSUES
7. Hence on completion of pleadings, the following issues were framed on 21.04.2004 for trial:-
1) Whether the suit has not been properly valued for the purpose of court fees and jurisdication ? OPD
2) Whether the suit is not maintainable for want of service of notice u/s 53-B of Act?OPD
3) Whether the suit has not been signed and verified by competant person?OPD-2.
4) Whether the plaintiff has no locus standi to file the suit?
CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 12 /28
5) Whether the suit is not filed in proper form? OPP
6) Whether the plaintiff is entitle for a decree of declaration as prayed for ? OPP
7) Whetther the plaintiff is entitled for decree of mandatory injunction as prayed? OPP
8) Whether the plaintiff is entitled for cancellation of documents as prayed for ?OPP
9) Relief.
After settlement of issues the matter was fixed for plaintiff's evidence.
PLAINTIFF EVIDENCE
8. In order to prove its case, plaintiff examined PW-1 Shri Ram Swaroop the President of the society through evidence affidavit Ex.PW-1/A. The witness PW-1 reiterated the facts mentioned in plaint and relied upon following documents Ex.PW1/1 to Ex.PW1/15(discussed in detail below).
PW-2 Shri Suraj Bhan Patwari, SDM office, Civil Lines, who brought on record documents Ex.PW2/A i.e register of Khasra Girdwari of village-Sindhora Khurd.
PW-3 Shri Hari Prakash Kanoogo, SDM, Civil Lines who brought consignment register of SDM Civil lines in which no entry of case no.1/RA/88 titled as General Secretary Koli Samaj, Shastri Nagar, Delhi vs Gaon Sabha was found.
PW-4 Shri Narender Kumar, Record keeper, Revenue department, Tis Hazari, Delhi who brought on record the Goshwara register for the year 1988 as per which the case no.1/RA/88 titled as General Secretary, Koli Samaj, Shastri CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 13 /28 Nagar, Delhi vs Gaon Sabha has not been consigned to record room.
PW-5 Shri Ranjeet Singh, UDC from institutional land branch, DDA who could not produce the summoned record.
PW-6 Shri Bhim Singh, Asst.Director DDA who brought on record the original legal notice dated 30.05.1991 issued by Advocate Hans Raj Chaudhary to the vice chairman DDA, the photocopy of said notice is Ex.PW6/A. He also placed on record a letter dated 05.09.1989, the photocopy of which is Ex.PW6/B address to Hon'ble Lieutenant Governor, Delhi by Delhi Pradesh Koli Samaj. He also placed on record another letter dated 26.11.1987 addressed to Hon'ble Lieutenant Governor, Delhi Delhi Pradesh Koli Samaj, the photocopy of which is Ex.PW6/C. He also placed on record the photocopies of ration card of Gurupagal Das Tyagi, Trust deed dated 21.03.1988 and carbon office copy of letters dated 12.05.1988 and 31.05.1988 issued by DDA which are mark-A to Mark-D respectively.
PW-7 Shri Ramesh Chander, Kanango, SDM office, civil lines, who could not place on record the summoned documents.
PW-8 Shri Narender Kumar, Record Keeper, Tis Hazari, who brought on record the summon filed in case no.1/RA/88 titled as General Secretary Koli Samaj, Shastri Nagar, Delhi vs Gaon Sabha decided on 06.05.1988 by Rashmi Krishnan, SDM,Patel Nagar wich was consigned to record room vide Goshwara no.36/1988/Miscellenuous which is Ex.PW8/A. PW-9 Shri Ashish Dahiya, LDC, PWD, Delhi Secretariat brought on record diary register of R& I branch, Land and building department from 19.07.1991 to 31.12.1992 which at CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 14 /28 diary no.4709 shows the entry of register post send by Advocate Shri Hans Raj containing the notice send on behalf of Koli Samaj which is Ex.PW9/1(OSR). He also placed on record the diary regisster of R& I branch wef 11.11.2009 till 19.09.2010 which at diary no.4662 shows the entry of receipt of letter from the office of Additonal Secretary dated 09.11.2009 sent by Om Prakash to Ms.Padma which is Ex.PW9/2(OSR).
No other witnessess was examined on behalf of plaintiff and PE was closed vide order dated 03.09.2015 and matter was fixed for DE.
DEFENDANT EVIDENCE
9. In DE, defendant examined only one witness i.e D-1W1 Shri Harsh Vardhan, Kanoongo, Land Management, DDA who tendered his affidavit Ex.D1W1/A and relied upon documenti.e photocopy letter dated 12.05.1988 Mark-A, copy of letter dated 15.01.1988 Mark-B(colly) and copy of letter dated 03.06.1988 Mark-C. No other witness was examined on behalf of defendants, hence defendant evidence was closed on 27.09.2016.
DECISION WITH REASONS
10. Thereafter, the matter was fixed for final arguments. I have heard the arguments advanced by Ld. Counsels for all the parties and carefully gone through the record of case.
11. My issues wise finding is as follows:
ISSUE NO.1-Whether the suit has not been properly valued for the purpose of court fees and jurisdication ? OPD CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 15 /28 The onus to prove the said issue was upon the defendants who in their respective WS has raised the same ground that the suit is not properly valued by the plaintiff. The present suit has been filed by plaintiff for declaration, cancellation and injunction. The plaintiff is seeking declaration to the effect that the plaintiff society be declared as the succesor-interest of unregistred society namely Koli Samaj as to be entitled for alternate plot of 400 sq.yd from DDA in lieu of demolished Shiv Mandir. The plaintiff is also seeking cancellation of allotment in favour of defendnat no.6 made by defendant no.1 vide allotment letter dated 12.05.1988 and lastly plaintiff is seeking mandatory injunction to allot 400 sq.yds to the plaintiff near Shastri Nagar locality, Delhi in lieu of demolished Shiv Mandir and also seeking financial assitance for construction of new Shiv Mandir at the site to be alloted.
The plaintiff by way of above prayers is in directly seeking to be entitled to 400 sq.yds of plot and cancellation of allotment made by DDA in favour of defendant no.6 which pertains to immoveable property. In the opinion of this court, the present suit has not been properly valued by the plaintiff as the cancellation of allotment letter dated 12.05.1988 which pertains to the immovable property by the party who is not the executant/party of the said documents needs to valued in the suit as per market value of the suit property specially when alongwith the declaration the plaintiff is also seeking mandatory injunction of fresh allotment of 400 sq.yds of alternative plots in its favour. Para no.23 of the plaint which has valued the prayers is not correct valuation by the plaintiaff in terms of court fees Act and CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 16 /28 suit valuation act. As per order VII rule 1 of CPC the plaint needs to be properly valued for call prayers separately for court fee and jurisdiction as well.
Acccordingly, the issue no.1 is hereby decided against the plaintiff and in favour of defendants.
Issue no.2 Whether the suit is not maintainable for want of service of notice u/s 53-B of Act?OPD.
The onus to prove the said issue was upon the defendants who all have raised the said ground in their respective WS. The present suit has been filed against the defendant no.1 DDA as one of the defendant to the present suit and as per section 53-B of DDA Act 1957 no suit shall be instituted against the DDA in respect of any act done untill the expiry of 2 months after the notice in writing has delivered to its office . Further, as per clause 2 of the said provision it is stated that no suit for recovery of immoveble property or for declaration of title be instituted after the expiry of 6 months from the date on which the cause of action arises. Clause 3 of said provision is a kind of proviso to section 53-B which states that in case where the relief claimed in the suit is only of injunction the service of notice is not mandatory.
In view of the above, it is clear that present suit is not a simplicitor suit for injunction as in the present suit the plaintiff has also claimed declaration of title in its favour and cancellation of allotment w.r.t. to land. During final arguments it was submitted by Ld. counsel for plaintiff that a notice u/s 53-B of DDA Act dated 30.08.1991 which is Ex.PW8/A was served upon CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 17 /28 the defendant/DDA as well as upon the secretary Delhi Administration which is Ex.PW1/07. The said two notices are photocopy of documents and the witness PW9 who brought on record the said letters which is Ex.PW9/1. The delivery of said notice is not disputed by the DDA but the question of consideration which is raised in present circumstances is whether the said notice which was served in year 1991 by Advocate Hans Raj Chaudhary holds good for the present suit has been filed by plaintiff in year 1997. The notice served in year 1991 upon the defendant no.1 for purpose of filing the suit in year 1997 is not a proper notice as the present suit has been filed after the expiry of 6 years of service of notice. Further, the notice Ex.PW8/A is stated to have been given by Advocate Hans Raj Chaudhary on behalf of General Secretary, Delhi Pradesh Koli Samaj situated at B-1073, Shastri Nagar, Delhi-52. The present suit has been filed by not Delhi Pradesh Koli Samaj through its General Secretary rather it is filed by Koli Samaj Shastri Nagar, Delhi having its registered office at FK-12, Shastri Nagar through its President. Clearly, the present suit which is filed by the plaintiff society and the notice u/s 53-B relied upon by the plaintiff society has not been issued by the plaintff society to the defendant no/1/DDA.
Hence, the notice Ex.PW8/A and PW-9/1 has no relevance/concern with the present suit which is filed by plaintiff society after 6 years of the service of notice by some other entity namely Delhi Pradesh Koli Samaj having different address than of plaintiff society. Also it is important to mention herein that the plaintiff society as per its own document Ex.PW1/1 i.e photocopy of certificate of registration, is registered in the month CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 18 /28 of September 1996 and thus, in the year 1991 when the alleged notice was sent to the DDA by the Advoate Hans Raj Chaudhary the plaintiff society was not in existence and thus, the plaintiff society was required to serve a fresh notice upon the defendant DDA in view of section 53-B of DDA Act before filing of the present suit in year 1997.
In view of the above, this issue is decided against the plaintiff and in favour of the defendant no.1.
ISSUE NO. 3 Whether the suit has not been signed and verified by competant person?OPD-2.
The onus to prove the said issue is upon the defendants. As per order VI rule 14 CPC every pleadingi.e plaint herein shall be signed by a party and his pleader and also as per rule 15 of the said order, it is stated that every pleading shall be verified at the foot by the party and the person verifying the pleading should verify as to what he verifies from his own knowledge and what he verifies from the information received and believe to be true. The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed. The person verifying the pleading shall also furnishe an affidavit in support of his pleadings.
The present plaint has been signed by Shri Ram Swaroop on 07.08.1997 who state himself to be President of Plaintiff society and he has only verified the plaint on the same date and the place of verification is to be stated Delhi. The present plaint has been duly signed and verified by Shri Ram Swaroop as per CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 19 /28 rule 14 and 15 of order VI. Now with respect to competents of person signing and verifying the plaint, the PW-1 who is the person signing the plaint in his evidence affidavit Ex.Pw1/A has stated to be the President of plaintiff society and being well conversant with the facts of present case and competant to depose on behalf of the plaintiff society. The para no.2 of the evidence affidavit Ex.PW1/A states that he has been duly authorised to sign and verify the plaint on behalf of plaintiff society vide resolution dated 12.04.1997 which is Ex.PW1/2. The document Ex.PW1/2 is stated to be a true copy of the resolution written on simple register pages in hindi whereby it is stated that the President Shri Ram Swaroop has been authorised to institute the present suit and also as per the said document it has been stated that the executive members have not been present since many meeting and it was proposed that in their place new members shall be nominated in the next meetings. The said resolution is not written on any letter head of the plaintiff society rather the same is written in a hindi language on a plaint register page which bears the sign of only PW-1 Shri Ram Swaroop. The said document Ex.PW1/2 no where discloses as to who all attended the said meeting whereby Pw-1 was authorised to institute the present suit and also it does not bears the signature of any other person except PW-1. The document Ex.Pw1/2 in the present form can not be admitted as to the document/resolution with respect to the authority by plaintiff society in favour of PW-1 and thus can not be read in evidence to show that the PW-1 has been duly authorised on behalf of plaintiff society to file the present suit.
CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 20 /28 In view of the above discussion, the present issue is decided against the plaintiff and in favour of defendants.
ISSUE NO.4 Whether the plaintiff has no locus standi to file the suit?
The onus to prove the said issue is upon the defendants. The plaintiff society in para no.2 of the plant have stated that earlier it was unregistered society and was a branch affiliated to Delhi Pradesh Koli Samaj and its parental body namely Akhil Bhartiya Koli Samaj which is a registered society and plaintiff society is a successor of said un registered society previously known as Koli Samaj Shastri Nagar. The plaintiff society has not placed on record any oral or documentary evidence to show that it was the successor society of Delhi Pradesh Koli Samaj. The notice issued u/s 53-B DDA Act in the year 1991 as well as u/s 80 CPC in the same year were issued by Delhi Pradesh Koli Samaj on behalf of its General Society through Advocate Hans Raj Chaudhary. The plaintiff has not examined the said advocate Hans Raj Chaudhary to corroborate the fact that the notice which was issued by Delhi Pradesh Koli Samaj was actually notice issued by later registered plaintiff society. The plaintiff has also not examined any other member of the previous unregistered Delhi Pradesh Koli Samaj or the member of present plaintiff society to corroborate the fact that plaintiff society is the actual successor interest of Delhi Pradesh Koli Samaj. Also, perusal of document Ex.PW6/C dated 26.12.1987 shows that the same was a letter written on the letter pad of Delhi Pradesh Koli Samaj to Hon'ble Lieuteant Governor, Delhi by the General Secretary Shri CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 21 /28 Babu Lal on behalf of Delhi Pradesh Koli Samaj. The perusal of said letter which mentions the name of various persons as President and General Secretary did not mention the name of Pw-1 in the said letter. Also, the other documents Ex.PW6/B which is another letter dated 09.05.1989 written by Delhi Pradesh Koli Samaj through General Secretary Shri Hazari Singh of Delhi Pradesh Koli Samaj written again on the letter pad of the Delhi Pradesh Koli Samaj. Neither of the persons mentioned in the documents Ex.PW6/B or PW6/C has been examined by the plaintiff in the present suit to establish the fact that plaintiff society is the successor interest of the Delhi Pradesh Koli Samaj who have admittedly written letters in the year 1987 and 1989 for allotment of land in their favour in lieu of demolition of Shiv Mandir which was earlier situated at Gulabi bagh, Nehar ki patari, Basant Nagar, Delhi. This court fails to understand as to under what circumstances the plaintiff society calls itself as the successor of Delhi Pradesh Koli Samaj when there is no oral or documentary evidence on record to show the link between the palaintilff society and Delhi Pradesh Koli Samaj which did all previous correspondence and litigation with respect to Shiv Mandir.
Accordingly, in view of the above discussion, the present issue is decided against the plaintiff and in favour of defendants.
ISSUE NO.5 Whether the suit is not filed in proper form? OPP.
The onus to prove the said issue is upon the defendants. The present suit has been filed for declaration, cancellation and mandatory injunction wherein the plaintiff society wants itself to CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 22 /28 be declared as successor interest of Koli Samaj Shastri Nagar and also want that it be declared entitled to the allotment of 400 sq.yds of land in lieu of demolished Shiv Mandir, The plaintiff is also seeking cancellation of allotment in favour of the defendant no.6 the Trust which was actually alloted 200 sq.yds of lan by defendant no.1 in lieu of demolished Shiv Mandir.The plaintiff in its plaint has alleged that the Trust deed executed in favour of defendant no.6 is a sham and bogus document as it was done solely for purpose of grabbing land in collusion with defendant no.1 and its officials and also politicians, but interestingly and for reasons best known to plaintiff he has not any relief/prayer to declare the said trust deed as null and void.This court fails to understand as to how the plaintiff can seek cancellation of allotment in favour of defendant no.6 without establishing the said Trust as sham and thereby declaring Trust deed as null and void.The present plaint has not been properly filed in view of the order II rule 2 of CPC to claim all relief.
Accordingly, in view of the above, discussing, the above issue is decided against the plaintiff and in favour of defendants. In view of the above discussion, the present issue is decided against the plaintiff and in favour of defendants.
ISSUE NO.6 Whether the plaintiff is entitled for a decree of declaration as prayed for ? OPP The onus to prove the said issue is upon the plaintiff. The plaintiff has sought the decree of declaration that it be declared as successor in interest of unregistered society namely Koli Samaj who was in possession and control of demolished Shiv Mandir at CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 23 /28 Nehar ki patri, Basant Nagar, Gulabi Bagh and also seeking declaration to be entitled to 400 sq.yds of land in lieu of demolished Shiv Mandir. In view of the finding of this court with respect to issue no.4 it is clear that the plaintiff society has failed to bring on record any evidence to show that it is successor of unregistered of Koli Samaj. And thus, the plaintiff society is not entitle to any declaration to this effect in its favour.
In view of the above discussion, the present issue is decided against the plaintiff and in favour of defendants.
ISSUE NO.7 Whetther the plaintiff is entitled for decree of mandatory injunction as prayed? OPP The onus to prove the said issue is upon the plaintiff. As discussed above, since the plaintiff society has no locus to file the present suit and it has also failed to established itself as the successor in interest of the Delhi Pradesh Koli Samaj and thus it has failed to further establish that it is plaintiff society who was in actual control and management as well as possession of the demolished Shiv Mandir. The plaintiff has not examined any witnesses who was member of previous Delhi Pradesh Koli Samaj or the Koli Samaj Shastri Nagar to show that it was plaintiff society who was under the control and management of the demolished Shiv Mandir. The PW-1 in its cross examination by the Ld. Counsel for defendant no.1 has stated that the demolished Shiv Mandir was constructe by Samaj people namely shri Girval Lal, Nand Kishore Premi, Palji, Munshi Ram, Kalu Ramji, Ramji, Lalji and others. For the reason best known to the plaintiff none of the above named persons has been examined by CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 24 /28 plaintiff to prove that it actually constructed the demolished Shiv Mandir. The plaintiff in its plaint has stated that after the demise of Baba Pagal Das Tyagi in year 1980 the possession of the Shiv Mandir was ordered to be recorded in the name of Koli Samaj Shastri Nagar by the order dated 09.05.1988. The said order was in favour of Koli Samaj Shastri Nagar and not in favour of plaintiff society and as mentioned above, the plaintiff society has failed to established itself as the successor of Delhi Pradesh Koli Samaj or of Koli Samaj Shastri Nagar. And thus, the said order with respect to possession entry in revenue record which is not in the favour of plaintiff society is of no help to the plaittiff to show its possession/control with respect to demolished Shiv Mandir. It is admitted fact that earlier the demolish Shiv Mandir and the land concerning the same i.e Khasra no.108, of village-Sindhora Khurd, Delhi was earlier recorded in the name of Baba Pagal Das Tyagi in the revenue record and which was ordered to be in the name of Koli Samaj Shastri Nagar in year 1988 i.e after expiry of 8 years from the death of Baba Pagal Das Tyagi. No sufficient reason has been brought on record by the plaintiff society regarding the fact that under what circumstance it took 8 years for the Koli Samaj is to substitute its name in place of late Shri Baba Pagal Das Tyagi who was pujari of the demolished Shiv Mandir. Apart from the said order of SDM Ex.PW.....there is nothing on record as discussed above to show that plaintiff society was in actual control/management or the possession of the demolished Shiv Mandir. The decree of mandatory injunction sought by plaintiff pertains to allotment of 400 sq.yds of land to the plaintiff society near Shastri Nagar, Delhi in lieu of CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 25 /28 demolised Shiv mandir is not called for in favour of the plaintiff in the light of the fact that plaintiff has failed to establish any interest/right/ title in the demolished Shiv Mandir.
In view of the above discussion, the present issue is decided against the plaintiff and in favour of defendants.
ISSUE NO.8 Whether the plaintiff is entitled for cancellation of documents as prayed for ?OPP The onus to prove the said issue was upon the plaintiff and the plaintiff by way of present prayer is seeking cancellation of allotment of plot of 200 sq.yd of order dated 12.05.1988 by defendant no.1 in favour of defendant no.6 being sham and bogus. As per article 59 of Limitation Act of 1953 any suit to cancel or set aside the instrument is to be filed within 3 years from the date of the knowledge of the said fact to the plaintiff. The plaintiff in its own plaint has stated that it came to know about the alotmetn of 200 sq.yd of land in favour of defendant no/1 by defendant in lieu of demolished Shiv Mandir in the year 1988 when the written statement was filed on behalf of defendant no.1 in previously instituted by the unregistered Koli Samaj against defendant no.1 and 2. The para no.10 of plaint stated in the WS of previous suit the name of trust and trustees was not disclosed and it is only in the year 1996 the plaintiff society came to know about the details of the Trust in whose favour the allotment has been done when the counter affidavit was filed by defendant no.1 before Hon'ble High Court of Delhi in a writ no.1114/94 filed by Koli Samaj Delhi Pradesh. The said averments of plaintiff can not be accepted by this court as the CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 26 /28 plaintiff has failed to file the said WS of the defendant no1 in previous suit on record to show that the same did not disclose the name of the trust. Even otherwise there were other means available to the plaintiff to ascertain the name of parties in whose favour of allotment was done by defendant no/1 in lieu of demolished Shiv Mandir. The writ petition before Hon'ble High Court of Delhi which was filed in year 1992 and as per document Ex.PW1/3 the same was filed by Kohli Samaj Delhi Pradesh through its General Secretaty and not the present plaintiff society whhich was not in existence in yeaer 1992. This also shows that the present plaintiff society has no concerned with the writ filed before Hon'ble High Court of Delhi which was disposed off with the directions to the petitioner to avail the ordinary remedy available in law. The present plaintiff society which has filed the present suit has no concerned with the demolishes Shiv Mandir as discussed above and also present suit has been filed after the expiry of limitation period of 3 years for cancellation of any instruments as the present suit filed in year 1997 is clearly time barred. Accordingly, plaintiff is not entitled to any decree of cancellation of allotment dated 12.05.1988 in its favour.
In view of the above discussion, the present issue is decided against the plaintiff and in favour of defendants.
RELIEF
12. In view of the above discussion, the present suit of the plaintiff stands dismissed. In view of above discussion, the CS SCJ no.6768/2016 Koli Samaj Vs DDA & Ors 27 /28 plaintiff is held to be not entitled to any relief of declaration, or mandatory injunction and cancellation as prayed in the plaint.
13. Decree sheet be prepared accordingly.
14. File be consigned to the record room after due compliance.
Pronounced in the open court (Neha Pandey)
on 14th January 2025 JSCC/ASCJ/GJ (WEST)
Delhi
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