Delhi District Court
Sh. Bishan Singh Solanki vs . Municipal Corporation Of Delhi & Ors. on 11 October, 2018
Suit No. 26695/16 Page 1 of 33
IN THE COURT OF DR. JAGMINDER SINGH
JSCC-cum-ADDITIONAL SENIOR CIVIL JUDGE
cum-GUARDIAN JUDGE, DWARKA COURTS, DELHI
Suit No. : 26695/16
In the matter of :
1) Sh. Bishan Singh Solanki,
S/o Late Sh. Jug Lal,
R/o WZ-306-A, Chutiyal Mohalla,
Village Palam, New Delhi-45.
........Plaintif
Versus
1) Municipal Corporation of Delhi,
Through its Commissioner,
Town Hall, Chandani Chowk,
Delhi.
2) The Deputy Commissioner,
Municipal Corporation of Delhi,
Najafgarh Zone, Najafgarh,
New Delhi.
3) Govt. of NCT of Delhi,
Through its Chief Secretary,
Secretariat, I.P. Estate,
New Delhi.
......Defendants
Date of institution of the suit : 26.07.2011
Final Arguments Heard on : 11.10.2018
Date of Judgment : 11.10.2018
Final Order : Partly Decreed
Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors.
Suit No. 26695/16 Page 2 of 33
SUIT FOR DECLARATION & PERMANENT INJUNCTION.
JUDGMENT :-
1. This is a suit for declaration & permanent injunction.
2. Brief facts necessary for the disposal of the present suit as mentioned in the plaint are that this suit is filed for declaration to the effect that the order dated 17.09.2010 passed by defendant no.2 on the representation of the plaintiff stating that the land in question is shown as road in their alleged layout plan and thereby the plaintiff cannot exercise/enjoy Bhumidari/ownership right, is against law and facts, more particularly when there is no finding that the land in question had ever been acquired under any law relating to the land acquisition, is null & void. The Well existing therein is to be maintained as a Well and even as required by the order of Hon'ble High Court of Delhi. Further declaration is sought to the effect that the plaintiff is a co- sharer/Bhumidar of land of Khasra No.67/5/2(0-5) situated Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 3 of 33 between Gali No.7 & 8, Sadh Nagar, Palam Colony, New Delhi and he is in lawful possession of the same and defendants have no right to take the possession of aforesaid property unless the same is acquired in accordance with law. The plaintiff also holds power of attorneys of many other co-sharers of the property. A consequential perpetual injunction is also prayed to restrain the defendants from interfering with the possession of the plaintiff or taking forcible possession of the same unless the land is acquired in accordance with law. Plaintiff had also filed true copies of Khasra Khatoni & other record that his name is duly recorded in the revenue records. The land comprised in Khasra No.67/5/2 (0-5) situated in the revenue estate of Village Palam, New Delhi is an ancestral property of Raghubir Singh, Dalip Singh sons of Sheo Ram, Bishan Singh respectively, Ran Singh, Mukhtiar Singh, Rai Singh sons of Sh. Sis Ram, Sat Pal S/o Sh. Raghubir, Banwari, Nand Ram, Dalip Singh & Bishan Singh sons of Late Sh. Jug Lal who were the original owners of the abovesaid land. Most of the Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 4 of 33 abovesaid owners have been died from time to time and at present, the abovesaid land is in Bhumidari of 30 persons. Most of the Co-Bhumidars have executed General Power of Attorneys in favour of plaintiff. Even the plaintiff being a co- sharer is entitled to the relief claimed against the defendants. The plaintiff till date is in possession of the suit property which includes a Well existing therein which is a private Well since long. Smt. Kalawati & some other neighbourers had evil eyes on the suit land. Suit bearing No.119 of 1986 changed as 347 of 1997 was filed by them against injunction. Said suit was ultimately dismissed vide judgment dated 29.04.1998 by the Court of the then Civil Judge, Delhi and it was held inter-alia that the rights of Bhumidar have not been extinguished and Smt. Kala Wati etc. have no right to get injunction. A malafide complaint was made to the revenue authorities and the revenue authorities initiated proceedings u/s 81 of Delhi Land Reforms Act, 1954. The Revenue Assistant decided the matter against the plaintiff. Thereafter, Hon'ble Deputy Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 5 of 33 Commissioner (South-West) has passed the following order in Appeal No. 95 of 2007 :-
"The operation of the order passed by RA (DC) dated 11.06.2007 in the matter G.S. Palam Vs. Raghubir Singh & Ors. till further orders. No third party interest be created during such time."
3. Thus factually as well as legally the plaintiff is co- owner and in possession of the suit land and is entitled to exercise all rights as owner/Bhumidar till the land in question is acquired as per law. Plaintiff had also filed WP (C) No.3378 of 2007 which was decided by Hon'ble Single Judge of the Hon'ble High Court of Delhi vide order dated 25.02.2010. Thereafter, plaintiff had filed LPA No. 230 of 2010 and in its order dated 09.04.2010, plaintiff was directed by the Hon'ble High Court to demolish the so called temple and file photographs of its demolition so that Well can be used. The said order reads as under :-
"Learned Counsel for the appellant says that the appellant will demolish the so-called temple and file photographs of its demolition so that the Well can be used".
4. It is further submitted that this order establishes that the plaintiff was in possession even on that date. Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 6 of 33 Aforesaid LPA was decided by the Hon'ble D.B. vide judgment dated 24.05.2010 by passing the following order :-
"In this intra-court appeal, the sustainability of the order dated 25.02.2010 passed by the Learned Single Judge in WP(C) No. 3378/2007 is called in question. Without entering into the legal proprietary of the order passed by the Learned Single Judge, as advised at present made by Learned Counsel for the appellant, we only direct if a fresh representation is made to the MCD within a period of eight weeks from the date of receipt of the order passed today, the same shall be dealt with within three months in accordance with law."
5. Hon'ble High Court did not decide the question of title and other rights. Accordingly the plaintiff submitted a representation to the defendant no.2. The said representation was decided by the defendant no.2 vide order dated 17.09.2010 passing the following order :-
"I have heard the applicant Sh. Bishan Singh Solanki and I have also gone through the record submitted before the undersigned and after having considered I am the considered opinion in facts and circumstances of the case that the disputed land in question is vacant land comprising of an unused well and the land use of the triangular portion as shown in the lay out plan in a road as such no encroachment/construction can be allowed to take place on the road in terms and provision of Section 312/313 and other relatives section of DMC Act, 1957. Hence, the representation of the applicant is hereby disposed of accordingly."
6. It is clear from the aforesaid order itself that the land in question was a vacant land comprising of unused Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 7 of 33 Well. The defendant no.2 further observed that the triangular portion as shown in the layout plan is a road. However, most surprisingly, the MCD had not placed any material on record to show that this private land had been acquired by the Govt. and placed at the disposal of the MCD. Plaintiff has also sought information in respect of the suit land under RTI Act and the requisite information was furnished vide letter No. ADM/LAC/SW2009-10 dated 24.02.2010 which reads as under:-
"In this regard, it is to inform that as per LR register of village Palam, Kh. No. 67/5/2(0-05) was notified u/s 4,6 of L.A. Act, 1984 vide No. F.9 (16)/84 L & B dated 27.01.1984 and F.10 (22)/84 L & B dated 26.09.1984 respectively and was not acquired vide any award number due to built up."
7. Thus it is firmly established that the land in question has neither been acquired till date nor its possession has been taken under Section 17 of the L.A. Act nor any award has been passed so far with respect to land in question. Therefore, this land in no case can be taken over or used by the MCD for road purposes or any other purpose unless the land is acquired in accordance with law or its possession was taken over as per law which has not Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 8 of 33 been done so far. Adjoining area of suit land towards South East is encroached by and is in possession of Smt. Kalawati (now deceased) and others. There is blind end on Western side of the suit land. Thus the suit land is never a part of any road. In any event the title of the plaintiff is not extinguished so far.
8. Thus the suit land has neither been acquired nor has been sold hence the title/possession of the plaintiff has not been extinguished in any manner. As the order dated 17.09.2010 passed by the defendant no.2 was against law, plaintiff served a legal notice dated 09.03.2011 on the defendants. However, no reply to the said notice has received. Cause of action to file the present suit firstly arose on receipt of order dated 17.09.2010. It further arose on different dates and also arose when the plaintiff acquired a share of Bhumidari right in the land in question. It also arose on filing of WP(C) No.3378 of 2007 and when this writ petition was finally decided vide decision dated 24.05.2010. It also arose on 17.09.2010 when defendant no.2 rejected Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 9 of 33 the representation of the plaintiff wrongfully & illegally and further arose on service of notice dated 09.03.2011 and when no reply to the same was given within statutory period. The cause of action still continuing. This court has jurisdiction to entertain, try and decide the present suit. Therefore, the present suit was filed with a request to declare the Order dated 17/09/2010 as null & void and having no value in the eyes of law. Decree of declaration may kindly be passed in favour of plaintiff declaring the plaintiff as co-bhumidar of the suit land and decree of permanent injunction may kindly be passed in favour of plaintiff restraining the defendants from interfering with the property rights/possession of plaintiff on suit land and not to destroy the well at suit land in any manner. Cost of the suit may also be awarded in favour of plaintiff along with other reliefs.
9. On the suit of the plaintiff, summons were issued to the defendants. Written statement has been filed by the defendants No. 1 & 2 opposing the plaintiff suit. In the WS it Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 10 of 33 is submitted on behalf of the MCD/defendants no. 1 & 2 in preliminary objections that the suit of the plaintiff is barred by the provisions of Section 477/478 of the DMC Act, 1957 for want of service of statutory notice upon defendants/MCD and plaintiff had not supplied copy of alleged site plan & other relevant documents to defendants. Writ petition (Civil) No.3778/2007 titled as Bishan Singh Solanki Vs. Govt. of NCT & Ors. was filed by plaintiff which was dismissed vide order dated 25.02.2010. Thereafter, the appeal/LPA No. 230/2010 was also filed by the plaintiff challenging the order dated 25.02.2010 and said LPA was decided by the Hon'ble High Court of Delhi vide order dated 24.05.2010 directing to the MCD that if a fresh representation is made by the plaintiff within a period of 8 weeks, then that shall be dealt with by the MCD within 3 months in accordance with law. Thereafter, plaintiff made a representation to the MCD and same was disposed of by the Deputy Commissioner, Najafgarh Zone, MCD vide order dated 17.09.2010. In para- wise reply, it is denied on behalf of defendants no. 1 & 2 Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 11 of 33 that the plaintiff is a co-sharer/Bhumidhar of land Khasra No.67/5/2 (0-5) situated in between Gali No. 7 & 8, Sadh Nagar, Palam Colony, New Delhi. Possession of the plaintiff is also denied. It is also submitted in WS that the unused Well in question has been removed from the suit property and presently there is a road as shown in the layout plan. Suit of the plaintiff is opposed by defendants no. 1 & 2 through WS. In replication, the plaintiff reaffirmed the contents of this plaint.
10. On the basis of the pleadings of both the parties, the following issues were framed :-
(1) Whether the suit is barred by the provisions of Section 477 & 478 of DMC Act? OPD.
(2) Whether the suit is not maintainable in view of the orders of the Hon'ble High Court of Delhi in Writ Petition No.3378/2007 and in LPA No.230/2010? OPD.
(3) Whether the plaintiff is the owner of the suit property? OPP.
(4) Whether the order dated 17.09.2010 passed by defendant no.2 is null & void? OPP.
(5) Whether the plaintiff is entitled to the relief of declaration as prayed for? OPP.
Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 12 of 33 (6) Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP.
(7) Relief.
11. Thereafter, the matter was fixed for plaintiff's evidence and plaintiff had examined five witnesses.
12. PW1 is Sh. Chatter Pal Singh, Kanoongo Record Room, Tehsil Mehrauli who proved the record of demarcation Ex.PW1/1 i.e. Case No. D-221/87 pertaining to Khasra No.67/5/1, 5/2 of village Palam (OSR). PW2 is Sh. Ram Kumar, Patwari, Tehsil Dwarka, who proved original Khatoni Register pertaining to Khasra Nos. 67/5/1 & 67/5/2 Ex.PW2/1 (OSR) & PW2/2 (OSR) respectively of village Palam. PW3 is Sh. Mukesh Kumar Sharma, Patwari, office of ADM/LAC-SW, who proved that land of Khasra No. 67/5/2 (0-5) situated in village Palam, New Delhi was notified but was and has not been acquired and he had placed on record relevant page of the LR register Ex.PW3/A (OSR). PW4 is Sh.Arvind Kumar proved attested copy of Gazette Notification bearing No. F.33/Engg.TP(DP)/11424/94, Dated 20.10.1994 Ex.PW4/1. Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 13 of 33 PW5/plaintiff Sh.Bishan Singh Solanki tendered his affidavit Ex.PW5/A in his evidence and he had relied upon the documents as Ex.PW5/1 i.e. site plan, Ex.PW5/2 i.e. copies of GPAs, Ex.PW5/3 i.e. true copy of Aks Shijra, Ex.PW5/4 i.e. copy of letter, Ex.PW5/5 i.e. copy of judgment, Ex.PW5/6 i.e. certified copy of judgment, Ex.PW5/7 i.e. copy of order dated 09.04.2010, Ex.PW5/8 & Ex.PW5/9 i.e. the copies of interim order, Ex.PW5/10 i.e. copy of representation, Ex.PW5/11 i.e. copy of reply dated 17.09.2010, Ex.PW5/12 (Colly) are the copies of representations, Ex.PW5/13 is legal notice, Ex.PW1/14 (Colly) are the original receipt, Ex.PW1/15 is signed copy of legal notice & Ex.PW1/16 is copy of legal notice.
13. No any other witness was examined by the plaintiff and thereafter, plaintiff's evidence was closed vide separate statement of Ld. Counsel for plaintiff and matter was fixed for defendant's evidence.
14. The defendant examined one witness as DW1. DW1 is Sh. M.S. Yadav, Executive Engineer (M-III), Najafgarh Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 14 of 33 SDMC who tendered his affidavit Ex.DW1/A and he relied upon the document i.e. already Ex.PW5/11. Thereafter, at request of Ld. Counsel, DE was closed. Thereafter, matter was fixed for final arguments.
15. Final arguments heard. Ld. Counsel for plaintiff argued that the suit of the plaintiff is well maintainable. Vide LPA No. 230/2010, Hon'ble High Court of Delhi had only given opportunity to the plaintiff to make representation before defendant no.2 and neither the issue of title was decided by Hon'ble High Court of Delhi nor the said issue could have been decided by defendant no.2. Through documents & evidence, the plaintiff had proved that he is one of the recorded co-sharer in the suit property. The area of village Palam, where suit property is situated has already been seized to be rural area. Defendants have neither acquired nor taken the possession of the suit property from the plaintiff which shows that the suit property is under the possession of the plaintiff. Plaintiff had duly proved his case through evidence. Therefore, present suit is liable to be Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 15 of 33 decreed.
16. On the other hand, Ld. Counsel for defendants no. 1 & 2 opposed the suit of the plaintiff. It is further submitted by Ld. Counsel for defendants no. 1 & 2 that suit of the plaintiff is barred by Section 477/478 of the DMC Act. After passing order by the Deputy Commissioner, Najafgarh Zone, dated 17.09.2010, the present suit is not maintainable. The plaintiff is having no right or title in the suit property. The plaintiff is not in possession of the suit property. The unused Well as stated by the plaintiff has already been removed from the suit property and presently, there is a road and no encroachment/construction can be allowed to take place on the road. The suit of the plaintiff is without any merits and same is liable to be dismissed.
17. I have considered the submissions of both parties and gone through the record. The issue no. (1) is that whether the suit is barred by the provision of section 477 and 478 of DMC Act? OPD. Onus to prove this issue was upon the defendant. During evidence, no any evidence is Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 16 of 33 placed on record by the defendant in support of this issue. The defendant had examined only one witness as DW-1 ie. Sh. M.S Yadav. In his affidavit Ex. DW1/A no such fact is mentioned. During cross-examination of the plaintiff / PW-5 also this fact is not disputed on behalf of the defendants / MCD. Therefore, issue no. (1) is accordingly decided against the defendant and in favour of the plaintif.
18. Issue no. (2) is that whether the present suit is not maintainable in view of the orders of the Hon'ble High Court of Delhi in writ petition no. 3378/2007 and in LPA no. 230/10? For clarification, both orders of the Hon'ble High Court of Delhi are reproduced here. Order dated 25.02.2010 in WP(C) No.3378/2007 is as under :-
"The petitioner claims that he is a recorded Bhumidar of 0.5 Biswa of land in Khasra No. 67/5/2, Village Palam, New Delhi and on the said land there exists a temple. The petitioner relies upon order dated 22 nd July, 1998 passed by the Collector (South-West), Delhi. The petitioner also submits that there is inter-se litigation between the petitioner and his neighbours, which is pending before the revenue court.
Counsel for the respondent-MCD, on the other hand submits that the said land is located in an unauthorized colony, which has been regularized. He also relies upon the lay out plan of the said colony and submits that the so- called temple is part of a public street as shown in the lay out plan.
Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors.Suit No. 26695/16 Page 17 of 33
To verify the exact nature of the construction and whether there exists any temple, the Court had appointed a Local Commissioner to visit the spot. The Local Commissioner has submitted his report. Local Commissioner has pointed out that at the time of regularization of Sadh Nagar colony in 1980, the lay out plan of the area was prepared and as per the lay out plan, this portion is unconstructed and vacant land.
However, there appears to be some dispute whether it is a part of gali/street or not. As per the MCD, this is a part of the street as per the lay out plan though this fact is disputed by the petitioner.
The photographs placed on record by the Local Commissioner clearly reveal that there is no construction as such and no temple exists at the said spot. Some stones have been kept at the spot and this sought to be projected as a temple. Merely, keeping some stones and putting some photographs or even a idol does not justify or support the claim of the petitioner. The Local Commissioner in his report has stated that attempt was made to encroach upon the area in the last four and five years, but no permanent structure exists. The Collector (South-West), Delhi while passing order dated 22 nd July, 1998 did not examine the lay out plan and take into consideration that an unauthorized colony had already come up and the said colony was regularized as Sadh Nagar colony in 1980.
In these circumstances, I do not find any merit in the present writ petition and same is dismissed. No costs."
19. Order dated 24.05.2010 in LPA No.230/2010 passed by the Division Bench of Hon'ble High Court of Delhi is as under :-
"In this intra-court appeal, the sustainability of the order dated 25 th February, 2010 passed by the learned Single Judge in WP(C) No. 3378/2007 is called in question.
Without entering into the legal proprietary of the order passed by the learned Single Judge, as advised at present and keeping in view the limited Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors.Suit No. 26695/16 Page 18 of 33
prayed made by learned counsel for the Appellant, we only direct if a fresh representation is made to the MCD within a period of eight weeks from the date of receipt of the order passed today, the same shall be dealt with within three months in accordance with law.
We may note that we have passed this order as the first prayer had become infructuous as the temple had been demolished.
If the Appellant makes a prayer for person hearing, it should be in the discretion of the MCD to grant him the said privilege. Needless to emphasize that after dismissal of the representation the same has to be communicated to the Appellant as every litigant has a right to be aware of the order.
The appeal stands disposed of accordingly.
Dasti."
20. Earlier vide order dated 17.11.2012, present suit was rejected being not maintainable but thereafter, the said order was set aside by the Ld. Appellate Court vide order dated 19.03.2013. In that order of the Appellate Court of Ld. ADJ, this fact was discussed that whether the suit is not maintainable in view of the order of the Hon'ble High Court of Delhi passed in aforesaid writ petition as well as in LPA and it was found by Ld. Appellate Court that the Hon'ble High Court of Delhi under the writ jurisdiction has not gone into the disputed question of facts of the present suit and therefore, present suit was found maintainable. The said order dated 19.03.2013 passed by the Ld. Appellate Court is Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 19 of 33 not challenged and same attained finality. Thereafter, no any other facts, the facts which were discussed in the order of Ld. Appellate Court on the point of maintainability, produced by the defendant that how due to the reason of the orders of the Hon'ble High Court of Delhi in Writ Petition No.3378/2007 and in LPA No. 230/2010, the present suit is not maintainable. Therefore, issue no. (2) is accordingly decided against the defendants and in favour of the plaintif.
21. Issue no. (3) is that whether the plaintiff is owner of the suit property? OPP. Onus to prove this issue is upon the plaintiff. Plaintiff had examined five witnesses including himself. PW1 Sh. Chatarpal Singh placed on record copy of original record of the demarcation Ex.PW1/1. The suit property is bearing Khasra No. 67/5/2 (0-5) situated in village Palam, New Delhi. In the demarcation report Ex.PW1/1, it is mentioned that as per the revenue record, the name of the plaintiff is shown as one of the Bhumidar along with other persons. It is further mentioned in the Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 20 of 33 report that as per site inspection, at the spot, a full flashed residential colony in the name of Sadh Nagar, Palam Colony is in existence. Proper demarcation could not acted upon due to uncertainty of any mark/side etc. Said report is of dated 16.07.1987. PW2 Sh. Ram Kumar, Patwari, placed on record the copy of Khatoni pertaining to Khasra No. 67/5/1 and 67/5/2 i.e. Ex.PW2/2 & PW2/1 respectively. PW3 placed on record the relevant page of original LR register of Palam Village pertaining to Khasra No.67/5/2 (0-5) as Ex.PW3/1. PW4 placed on record the copy of gazette notification dated 20.10.1994 i.e. Ex.PW4/1. According to this notification, the old Abadi as well as entire revenue estate of village Palam along with other villages as mentioned in the list were declared as urban. During evidence as PW5, plaintiff had placed on record documents Ex.PW5/1 to Ex.PW5/16.
22. During cross-examination, PW5 admitted that the land in question was vested in Gram Sabha but appeal against the order was filed which is still pending. It is also admitted by PW5 that land in question falls within the Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 21 of 33 colony namely Palam Colony, Sadh Nagar and entire area has been urbanized. Ex.PW5/1 is site plan. Ex.PW5/2 is General Power of Attorney executed by 21 persons namely
1) Sh. Daleep Singh, 2) Sh. Rajender Singh, 3) Sh. Ishwar Singh, 4) Sh. Virender Singh, 5) Sh. Pratap Singh, 6) Sh. Shamsher Singh, 7) Sh. Banwari Lal, 8) Sh. Daleep Singh, 9) Sh. Mool Chand, 10) Sh. Rameshwar Solanki, 11) Sh. Suresh Solanki, 12) Sh. Kuldeep Singh, 13) Sh. Bhagat Singh, 14) Sh. Gajender Singh @ Sh. Ajit Singh, 15) Sh. Manjeet Singh,
16) Sh. Daljeet Singh, 17) Sh. Sanjeet Singh, 18) Sh.Sarjeet Singh, 19) Sh. Rai Singh, 20) Sh. Satpal & 21) Sh.Mahender in favour of the plaintiff Sh. Bishan Singh regarding the suit property. Ex.PW5/2 (Colly) is also a Power of Attorney executed by 1) Sh. Mool Chand, 2) Sh. Rameshwar Solanki,
3) Sh. Suresh Solanki, 4) Sh. Mahender in favour of the plaintiff qua the suit property regarding their share. Ex.PW5/2 (Colly) is another General Power of Attorney executed by 1) Sh. Manjeet Singh, 2) Sh. Daljeet Singh, 3) Sh. Sanjeet Singh & 4) Sh. Sarjeet Singh in favour of the Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 22 of 33 plaintiff qua the suit property. Ex.PW5/3 is Aksh Sizra. Ex.PW5/4 is copy of RTI reply, according to which the suit property was not acquired by the concerned department. Ex.PW5/5 is copy of the judgment in civil suit no. 347/97. The document Ex.PW5/6, PW5/7, PW5/8 & PW5/9 are copies of judgment in aforementioned writ petition & LPA before Hon'ble High Court of Delhi. Ex.PW5/10 is copy of representation given by the plaintiff to the defendant/SDMC in furtherance of order dated 24.05.2010 in LPA No.230/2010 of Hon'ble High Court of Delhi. Ex.PW5/11 is copy of order of the Deputy Commissioner, MCD dated 17.09.2010 which is challenged by the plaintiff in this suit. Ex.PW5/12 is a complaint given by the plaintiff to the Commissioner MCD regarding encroachment upon the suit property. Documents Ex.PW5/13 to PW5/16 are copies of notice given by plaintiff to the office of defendants/MCD.
23. Therefore, perusal of the documents produced on behalf of plaintiff reveals that regarding ownership of the plaintiff qua the suit property, he had placed on record Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 23 of 33 document Ex.PW2/1 i.e. copy of Khasra Khatoni for the year 2002-2003 and the Power of Attorney executed by 21 persons as above mentioned in favour of the plaintiff. As per Ex.PW2/1 in Khasra No.67/5/2 (0-5), the names of the following persons are shown as Khatedars:- 1) Sh. Rajender Singh, 2) Sh. Ishwar Singh, 3) Sh. Virender Singh, 4) Sh. Partap Singh, 5) Sh. Shamsher Singh (having equal share 1/8th), 6) Sh. Daleep Singh (1/8th share), 7) Sh. Kuldeep Singh, 8) Sh. Bhagat Singh, 9) Sh. Gajender Singh (having equal share 1/4th), 10) Sh. Ran Singh, 11) Sh. Mukhtyar Singh, 12) Sh. Rai Singh (having equal share 1/8 th), 13) Sh.Satpal (1/8th share), 14) Sh. Daleep Singh, 15) Sh. Banwari Lal, 16) Sh. Bishan Singh (Plaintiff) (having equal share 3/16th), 17) Sh. Nand Ram (1/16th). No any other document is placed on record by the plaintiff to prove his ownership qua the suit property.
24. As per the revenue record filed by the plaintiff himself. Plaintiff is Khatedaar to the suit property up to the extent of 3/16th share along with other Khatedaars as Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 24 of 33 mentioned above. The General Power of Attorney Ex.PW5/2 executed by the 21 persons as mentioned in para no. 22 (of this order) in favour of the plaintiff regarding their shares in the suit property only to look after, manage and control the suit property. It is nowhere mentioned in the said GPA that they are transferring their ownership rights in favour of the plaintiff. Further the persons namely Sh. Ran Singh, Sh.Mukhtyar Singh & Sh. Nand Ram who are shown as Khatedaars in the Khatoni Ex.PW2/1 are not executant of any of the GPA Ex.PW5/2 (Colly) in favour of plaintiff. Therefore, they have not even authorized the plaintiff for any purpose regarding their respective shares in the suit property through Ex.PW5/2 (Colly). Names of Sh. Mool Chand, Sh.Rameshwar Solanki, Sh. Suresh Solanki, Sh.Manjeet Singh, Sh. Daljeet Singh, Sh. Sanjeet Singh, Sh.Sarjeet Singh, Sh.Mahender are also there in the GPA Ex.PW5/2 (Colly) where they are authorizing the plaintiff to look after their share in the suit property but their names are not there in the Khatoni Ex.PW2/1. There is no any Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 25 of 33 evidence placed on record by the plaintiff that what is the entitlement of Sh.Mool Chand, Sh. Rameshwar Solanki, Sh. Suresh Solanki, Sh. Manjeet Singh, Sh. Daljeet Singh, Sh. Sanjeet Singh, Sh.Sarjeet Singh, Sh.Mahender in the suit property i.e. Khasra No. 67/5/2 (0-5). Therefore, plaintiff had failed to place on record to show that he is owner of the suit property. As per Ex.PW2/1, the plaintiff is shown as shareholder/Khatedaar to the extent of 3/16th share in the suit property and not as owner of whole of the suit property. There is no document shown by the plaintiff that other Khatedaars have transferred their share in the name of the plaintiff. Therefore, issue no. (3) is decided against the plaintif.
25. Issue no. (4) is that whether the order dated 17.09.2010 passed by the defendant no.2 is null & void? OPP. The said order has been passed by the Deputy Commissioner, SDMC, Najafgarh Zone, in furtherance of order of the Hon'ble High Court of Delhi in LPA No.230/2010. The operative part of the said order dated 17.09.2010 is Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 26 of 33 reproduced as under:-
"I have heard the applicant Sh. Bishan Singh Solanki and I have also gone through the record submitted before the undersigned and after having considered I am the considered opinion in facts and circumstances of the case that the disputed land in question is vacant land comprising of an unused well and the land use of the triangular portion as shown in the lay out plan in a road as such no encroachment/construction can be allowed to take place on the road in terms and provision of Section 312/313 and other relatives section of DMC Act, 1957. Hence, the representation of the applicant is hereby disposed of accordingly."
26. It has also been mentioned in the said order that during hearing of the Writ Petition No. 3378/2007 before Hon'ble High Court of Delhi, the MCD had filed counter affidavit stating that the suit property is a vacant land comprising of an unused Well and the plaintiff had installed a temporary temple thereupon by putting a religious idols. In order dated 25.02.2010 in the aforesaid writ petition it has been held by Hon'ble High Court of Delhi that no any temple existed on the suit property and some stones have been kept at the spot sought to be projected as a temple and therefore, Hon'ble High Court of Delhi had not supported the claim of the petitioner that any temple is in existence at the suit property. It is also not clarified by the Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 27 of 33 plaintiff that if there is an unused Well at the suit property then how the projection of a temple was attempted to be made by the plaintiff at the suit property. No any revenue record or photograph is placed on record by the plaintiff to show that there is existence of any unused Well at the suit property. During cross-examination, PW5 admitted that no temple over the suit land is in existence but there is a Well and Pooja of the Well is performed by the villagers even now. However, no one from any of such villagers is produced by the plaintiff as a witness to show that the Pooja of the Well is performed. Although it is admitted fact on behalf of the defendant that the suit property has not yet been acquired by any Government Department, yet it cannot be accepted that the suit property is under ownership of the plaintiff in the form of an unused Well. During cross- examination, it is admitted by PW5/plaintiff that the suit property has been vested in the Gram Sabha but appeal against said order was filed and same is pending. It is also admitted that land in question falls within an urbanized Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 28 of 33 colony. In affidavit Ex.DW1/A, it is submitted by the defendant's witness that presently there is a road as shown in the layout plan at the suit property. During cross- examination, DW1 had placed on record the photocopy of layout plan which is not objected to on behalf of the plaintiff. No any photograph or any other evidence is filed on record during evidence by the plaintiff to show that presently the suit property is in the form of an unused Well or that there is no road/way of the urbanized colony is in existence. Order dated 17.09.2010 has been passed by the concerned Deputy Commissioner, SDMC, Najafgarh Zone in compliance of the order of Hon'ble High Court of Delhi in LPA No.230/2010. It is has been directed in the said order in LPA that the representation made to the MCD shall be decided within 3 months in accordance with law and the MCD may grant opportunity of personal hearing to the plaintiff and it was further ordered that after dismissal of the representation, the same has to be communicated to the plaintiff. It is not disputed on behalf of the plaintiff that the Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 29 of 33 order dated 17.09.2010 was not decided within 3 months or the plaintiff was not given personal hearing or the decision was not communicated to the plaintiff. Court does not find any evidence placed on record by the plaintiff to show that order dated 17.09.2010 passed by defendant no.2 is null & void. Therefore, issue no. (4) is decided against the plaintif and in favour of defendants.
27. Issue no. (5) is that whether the plaintiff is entitled to the relief of declaration as prayed for? OPP. The plaintiff had sought declaration in prayer clause (ii) to the effect that plaintiff be declared as Co-Bhumidar/Co-Sharer of the suit property i.e. property bearing Khasra No.67/5/2 (0-
5) situated in village Palam, New Delhi. The plaintiff had placed on record the revenue record Ex.PW2/1 wherein the name of the plaintiff is mentioned showing him having 3/16 th share in the suit property as a Khatedaar. The defendant had not placed on record any revenue record rebutting the document Ex.PW2/1. It is admitted on behalf of defendant during cross-examination of DW1 that the suit property has Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 30 of 33 never been acquired by the defendant no.2. No any other document is shown by defendant during evidence to show that plaintiff have ever been deprived of from his status as Co-Khaterdaar in the suit property as shown in Ex.PW2/1. Therefore, there is no reason to disagree with the contents of Ex.PW2/1 that the plaintiff is Co-Khatedaar in the suit property i.e. Khasra No. 67/5/2 (0-5) of village Palam, Delhi. Hence, issue no. (5) is accordingly decided in favour of plaintif and against the defendants.
28. Issue no. (6) is that Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for? OPP. Onus to prove this issue is upon the plaintiff. For this discretionary relief of injunction, plaintiff has to first establish that he is in possession of the suit land and defendants are interfering or are trying to interfere in his peaceful possession upon the suit property. Admittedly a Writ Petition No. 3378/2007 has already been decided by Hon'ble High Court of Delhi vide order dated 25.02.2010 wherein the plaintiff had taken stand that a temple is in Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 31 of 33 existence of the suit property and a direction was sought against the MCD not to demolish the temple as well as private Well existing at the suit property. However, the said Writ Petition was dismissed by the Hon'ble High Court of Delhi. During cross-examination before this Court, it is himself admitted by the plaintiff as PW5 that no any temple is in existence at the suit property. Against the order on Writ Petition, the plaintiff had filed LPA before the Hon'ble Division Bench which was decided vide order dated 24.05.2010, wherein Court had not gone into the merits of the case but only given the plaintiff a liberty to file a fresh representation to the MCD. Said representation was filed by the plaintiff before the MCD which was decided in accordance with law and in compliance of order of Hon'ble Division Bench of the High Court by the defendant vide a reasoned order dated 17.09.2010 Ex.PW5/11. It is further admitted fact that the area where suit property is situated is now an urbanized area as per the Government Notification. In the order Ex.PW5/11 also it is stated that area of the suit Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 32 of 33 property was regularized vide Resolution No. 147 Dated 05.06.1980. It was also held in order Ex.PW5/11 that the suit property as shown in layout plain is a road. On the other hand, plaintiff had not placed on record any evidence to show that the suit property is under his exclusive possession or occupation. Therefore, regarding the relief of injunction as prayed by plaintiff, the plaintiff had failed to show any prima-facie case in his favour and therefore, Court finds that plaintiff is not entitled for the relief of permanent injunction against the defendants qua the suit property, as prayed. Hence, issue no. (6) is accordingly decided against the plaintif and in favour of defendants.
29. Relief: Declaration is passed in favour of plaintiff that the plaintiff is Co-Khatedaar in the suit property i.e. Khasra No. 67/5/2 (0-5) of village Palam, Delhi as per Ex.PW2/1.
30. Suit of the Plaintiff is partly decreed.
31. No order as to costs.
32. Decree sheet be prepared accordingly.
Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors. Suit No. 26695/16 Page 33 of 33
33. File be consigned to record room after due compliance.
Announced in the open court on this 11th day of October, 2018 Digitally signed by JAGMINDER JAGMINDER SINGH SINGH Date: 2018.10.11 16:11:17 +0530 (DR. JAGMINDER SINGH) JSCC-ASCJ-cum-Guardian Judge, Dwarka Courts : Delhi
Note: This judgment is having Thirty Three pages and each page is bearing my signatures.
(DR. JAGMINDER SINGH) JSCC-ASCJ-cum-Guardian Judge, Dwarka Courts : Delhi Sh. Bishan Singh Solanki Vs. Municipal Corporation of Delhi & Ors.