Delhi District Court
Hira Lal (Now Deceased - Through Lrs) vs . Dda & Anr., Rca No. 61/2015 Page No. 1 Of ... on 16 January, 2017
IN THE COURT OF Dr. KAMINI LAU: ADDL. DISTRICT
JUDGEII (CENTRAL): TIS HAZARI COURTS: DELHI
RCA No. 61/2015
New No.: 61374/16
1. Sh. Hira Lal (since deceased) S/o late Chunni Lal
1 A. Sh. Jai Narain Son
1 B. Sh. Mukesh Son
1 C. Sh. Bhuvesh Son
1 D. Sh. Bharat Son
1 E. Sh. Vipin Son
1 F. Ms. Tripta Daughter
1 G. Smt. Shakuntala Wife
All R/o 6005/6, Nabi Karim,
Paharganj, New Delhi
2. Sh. Durga Dayal
S/o Late Chunni Lal
3. Sh. Duli Chand (since deceased)
Through his legal heirs:
(i) Smt. Uma Daughter
(ii) Smt. Dimple (Deepti) Daughter
(iii) Pawan Son
(iv) Pankaj Son
(v) Gagan Son
(vi) Smt. Late Vidya Devi Widow
All R/o 6005/6, Nabi Karim,
Paharganj, New Delhi
4. Sh. Ramesh Chand
S/o Sh. Ishwar Lal - deceased son of Sh. Chunni Lal
Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 1 of 22
5. Sh. Kartar Chand
S/o Sh. Ishwar Lal - deceased son of Sh. Chunni Lal
6. Sh. Lokesh
S/o Sh. Ishwar Lal - deceased son of Sh. Chunni Lal
7. Sh. Dinesh
S/o Sh. Ishwar Lal - deceased son of Sh. Chunni Lal
8. Ms. Deepti (daughter
D/o Sh. Ishwar Lal - deceased son of Sh. Chunni Lal
9. Smt. Savitri
W/o Sh. Ishwar Lal - deceased son of Sh. Chunni Lal
10. Sh. Dushyant Lal (since deceased)
a) Smt. Usha Rani W/o Late Dushyant Lal
b) Sachin S/o Late Dushyant Lal
c) Abhishek S/o Late Dushyant Lal
d) Smt. Nitin W/o Sunil D/o Late Dushyant Lal
All R/o 204, 2nd Floor, Avtar Enclave,
Paschim Vihar, New Delhi
......... Appellants
Versus
1. Delhi Development Authority
Vikas Sadan, INA, New Delhi
2. The Estate Officer
Delhi Development Authority,
Vikas Sadan, INA,
New Delhi
......... Respondents
Date of Institution: 12.08.2015 Judgment Reserved on: 12.01.2017/ 16.01.2017 Judgment pronounced on: 16.01.2017 Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 2 of 22 JUDGMENT (Oral): (1) This appeal impugns the judgment / decree of Ld. Trial
Court dated 15.7.2015 wherein the suit filed filed by the appellants (i.e. plaintiffs therein) for Declaration and Permanent Injunction, had been dismissed and being aggrieved by the same, the appellant (plaintiffs) preferred this appeal.
(2) Brief facts of the case as put forward by the appellant are that their predecessorininterest was owner of freehold property bearing no. 5984, Nabi Karim, Pahar Ganj, New Delhi, admeasuring 221 sq. yds., having purchased the same vide registered sale deed dated 07.08.1953 from its erstwhile owner Mr. Banke Khan S/o Mr. Nausha Khan. Mr. Banke Khan had filed a claim petition before the Custodian of Evacuee Properties claiming to be owner of suit property and Ld. Custodian of Evacuee Properties, after going through the documents produced by Mr. Banke Khan, was pleased to hold Mr. Banke Khan as owner of suit property vide order dated 19.11.1949. According to the appellants, the respondent/ defendant no. 1 & 2 had no right to assess damages or to deal with the tenants of appellants in respect of the suit property and hence the damages assessed by the defendant no.1 & 2 were illegal, void and without jurisdiction. (3) On the other hand the case of the respondent is that the suit property is a Government land under the management and control of Respondent No.1/ DDA wherein the appellants are in illegal possession of the same. According to the DDA, the proceedings under the P. P. Act had been initiated against the appellants where final order had also been passed and instead of filing an appeal under P. P. Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 3 of 22 Act, the present suit for Declaration was filed by the appellants / plaintiffs, which is barred under Section 10 of P.P. Act and also barred for want of notice under Section 53 of DD Act. (4) After considering the evidence adduced by the parties, the Ld. Trial Court dismissed the suit and now the appellant has challenged the said dismissal on the ground that initially the suit filed by the appellants was only for Permanent Injunction there being an urgency in the matter in which the relief of declaration was subsequently added. It is stated that this objection which has been raised looses its importance after almost 25 to 30 years of trial. It is further pleaded that the respondent / DDA has miserably failed to discharge its burden in proving that the suit property is situated in Khasra No. 81 and in this regard the appellant has placed reliance on the testimony of halka Patwari and his cross examination dated 29.8.2013 wherein he had feigned about the suit property being situated in the locality of Nabi Karim and also the order of Assistant Custodian dated 18.11.1949 and claim that the land is being owned by DDA (Ex.DW1/1) despite the fact that the said land is recorded as abadi deh and there is no evidence of DDA having raised any construction. It is submitted that the officers of the DDA have failed to produce the original Khasra of the property whereas the suit property is shown situated in the locality of Nabi Karim and does not form part of nazul land in the revenue estate of Kadam Sarif. It is further pleaded that the appellants in order to establish the title of the predecessor in interest have proved the certified copies of the judicial order passed by Assistant Custodian of property on 18.11.1949 vide Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 4 of 22 Ex.PW1/2 declaring the predecessor in interest of appellants as the owners of the property and has also proved the site plan of the property vide Ex.PW1/3 which the Ld. Trial Court has failed to appreciate. It is further pleaded that the nazul agreement Ex.DW3/1 does not mention as to which land has been transferred to the respondent by the said agreement and the dismissal of the suit by relying upon the entries in the records of rights is erroneous. In this regard the appellants have relied upon the judgment in the case of Narain Prasad Vs. State of M. P. reported in AIR 2007 SC 2349 (5) It is also pleaded that the Trial Court has failed to note that though the respondent claimed the appellants/ plaintiffs to be illegal occupants of the suit property but failed to prove on record or even plead as to when and how appellants/ plaintiffs entered into possession of alleged illegal possession of the suit property. It is further pleaded that the Ld. Trial Court relying upon Ex.DW1/1 and Ex.DW3/1 discarded the registered sale deed in favour of predecessorininterest of the appellants executed by a person who was held to be owner of the property by virtue of a judicial order passed by Ld. Custodian of Evacuee Property. It is also pleaded that the Ld. Trial Court has failed to appreciate the documentary evidence adduced by plaintiffs/ appellants i.e. sale deed Ex.PW1/1 dated 07.08.1953 executed by Sh. Banke Khan in the name of Sh. Chunni Lal, sanctioned site plan, order of Assistant Custodian and other relevant record. It is further pleaded that the Ld. Trial Court relied upon the submission of the respondent that the order of Assistant Custodian is a nonspeaking order but failed to note that no appeal Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 5 of 22 was preferred by State against the order of custodian to claim title over the suit property. It is submitted that the said order of custodian is a speaking order based upon the documents adduced by Sh. Banke Khan and by said order Sh. Banke Khan was declared owner of suit property. It is also submitted that the appellants had placed on record certified copy of order dated 19.11.1949 passed by Ld. Custodian of Evacuee Properties which order was disputed by respondents. (6) It is also submitted that by the appellant that the Trial Court has erred that the respondents have nowhere pleaded that Khasra no. 81 falls in the revenue estate of Kadam Sarif and the Trial Court had erred in holding that there is difference in the document of the appellant and the plaint despite the fact that number of suit property was 5984 as evident from the sale deed which is also reflected as 5984/15 depicting the property number as well as the street number. It is further submitted that Trial Court has correctly opined that the order of Assistant Custodian refers to the sale deed which has not been produced before the court by the appellants by ignoring to note that the respondent had not put any suggestion to PW1 in this regard to the extent that Sh. Banke Khan was not having any title over the suit property.
(7) The respondents have opposed the grounds raised and have stated that the order passed by the Ld. Trial Court is detailed and the suit has been rightly dismissed since neither the identification of the suit property is proper nor the appellants have been able to prove their title over the same. It is submitted that even otherwise the suit could not have been filed without serving a prior notice under Section Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 6 of 22 53 of DD Act upon the DDA and also being barred in view of the provisions of Section 10 of the P. P. Act since the proceedings under P. P. Act had been initiated in respect of the property where the predecessor in interest of the appellants had been appearing and contesting the same.
(8) I have considered the rival contentions and also the Trial Court Record and the evidence adduced by the parties. Before coming to the merits of the grounds raised in the appeal, I may bring on record that the competent officer of the DDA ie. Jaipal Singh Kanoongo has been examined by this Court under Order 10 CPC at the appellate stage in view of the fact that the respondent / DDA had been relying upon the certain documents while opposing the claims of the appellant. The respondent/ DDA had relied upon certain documents executed in the year 1937 and 1940, copies of which have been placed on record but this Court noticed that no revenue records or documents relating to the acquisition proceedings had been placed before the Court. The statement of Jai Pal Singh, Kanoongo recorded by this Court under Order 10 CPC is reproduced as under:
"....... Q 1: What are the documents relied upon by DDA on the basis of which the DDA is claiming its right over the property in question?
Ans: Nazul Agreement dated 31.03.1937 which is Ex.DW1/PX.
Q2: Whether in the agreement dated 31.03.1937 the land in Khasra No. 81, Kadam Sharif, Delhi is shown to have been handed over to the Delhi Improvement Trust?
Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 7 of 22 Ans: It is not so reflected in the Nazul Agreement dated 31.03.1937 which is Ex.DW1/PX.
Q3: When was the land in Khasra No. 81, Kadam Sharif, Delhi acquired by the Government of India and under which award?
Ans: I cannot tell about the same as there is no such document either in my record or filed by us before the Ld. Trial Court.
Q4: In case if the land of Khasra No. 81, Kadam Sharif, Delhi was acquired, being a Nazul Land who were the owners/ occupants of the same who were compensated by the Government of India pursuant to its acquisition?
Ans: I cannot inform about the same as this information is with the LAC.
Q5: Have you placed any document as regards the said proceedings before the Ld. Trial Court?
Ans: No. Q6: When was the demarcation of the land in Khasra No. 81, Kadam Sharif, Delhi conducted?
Ans: I am not aware of the same. No demarcation was conducted as per our record because there is no such record in our office.
Q7: What is the status of Khasra No. 81, Kadam Sharif, Delhi in the revenue records i.e. whether it is a Nazul Land or an Abadi Area? Have any revenue records in this regard been filed before the Ld. Trial Court.
Ans: No such revenue records have been filed before the Ld. Trial Court. I Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 8 of 22 cannot tell the status of the land in the year 1937 as the Jamabandi for the said year is not on my record today nor it has been filed before the Ld. Trial Court.
Q8: Has the demarcation report of the land handed over to the Delhi Improvement Trust pursuant to the agreement dated 31.03.1937, placed on record? If not, do you have the copy of the same.
Ans: No such demarcation report is present on our record nor the same has been filed before the Ld. Trial Court.
Q9: Whether any formal handing over and taking over of the land was conducted?
Ans: No. Not as per my record.
Q10: Where is the Jamabandi of the land in question of the year 1937 when the land allegedly acquired by the Government of India to be handed over to the Delhi Improvement Trust?
Ans: It must be in the office. We have not filed the same in the Court.
Q11: Can you inform the purpose for which the suit land was handed over to Delhi Improvement Trust?
Ans: No as the same has not been mentioned in the Agreement dated 31.03.1937 vide Ex. DW1/PX.
Q12: Is it correct that any land taken over by the Government of India which was later on transferred to the Delhi Improvement Trust was governed by the provisions of LAC Act 1894?
Ans: The same is correct.
Q13: Under what provisions of law was the land relating to Khasra No. 81, Kadam Sharif, Delhi acquired by the Government of India and for what purpose?
Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 9 of 22 Ans: The same was acquired under the provisions of LAC Act 1894 but I cannot tell the purpose.
Q14: Are there any copies of the acquisition proceedings present on your record or filed before the Ld. Trial Court?
Ans: No. Q15: Is it correct that the building bearing No.5984 was constructed after due sanction from the Municipal Commissioner Delhi on 24.04.1956 vide Ex.PW1/3 which can only be done after the title of the land is found to be clear?
Ans: The same is correct.
Q16: Is it correct that as per the existing law the municipal corporation can give street numbers and house numbers to the properties in an area only after the title of the same is clear and not of the properties constructed on the acquired land?
Ans: It is correct.
Q17: Is it correct that initially the municipal numbers given to the suit property 7913 to 7919 which was later on changed to 5984/15 in which 15 reflects the ward number and as on date the said numbers continue and even the house tax is being paid from time to time?
Ans: In so far as the numbers are concerned, I confirm the same but I cannot comment upon the fact relating to the payment of the house tax on the same municipal numbers.
Q18: Is it correct that in the notices under PP Act the plaintiffs have been served on the same municipal numbers?
Ans: The address mentioned is of Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 10 of 22 Khasra No. 81, Kadam Sharif but they have been served on the same address i.e. 5984, Kadam Sharif, Delhi, as evident from Ex.PW1/7....."
(9) Hence, in the light of the aforesaid and particularly in view of the above statement made before me, I now proceed to decide the appeal.
(10) At the very Outset I may observe that it has been duly established by the appellants that their predecessor in interest late Sh. Chunni Lal had entered the premises by virtue of the registered Sale Deed dated 07.08.1953 executed in the name of Sh. Chunni Lal in Urdu which is Ex.PW1/1, translated copy of which is Ex.PW1/1A. The said property had been purchased by late Sh. Chunni Lal from Sh. Banke Khan S/o Nausha Khan who was a resident of Rampur, Uttar Pradesh and was the owner of the suit property which taken over by the Government as an Evacuee Property after the partition but later on an application filed by Sh. Banke Khan S/o Nausha Khan, the Assistant Custodian of Evacuee Properties vide order dated 19.11.1949, certified copy of which is Ex.PW1/2, declared that Bankey Khan was a resident of Rampur, Uttar Pradesh and had not migrated by Pakistan and hence the property cannot be declared as an Evacuee Property and Bankey Khan was declared as owner of the property.
(11) Secondly, it is an admitted case of the respondent DDA that Sh. Chunni Lal thereafter constructed the building after obtaining a sanction plan from the Municipal Commissioner on Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 11 of 22 24.04.1956 vide Ex.PW1/3 which sanction plan would only have been issued after the title of the property/ land is clear. (Reference in this regard is made to the statement of Jaipal Singh Kanoongo dated 12.01.2017 recorded under Order 10 CPC).
(12) Thirdly, the respondent/ DDA is claiming their rights over the property in question on the basis of the Nazul Agreement dated 31.03.1937 which is Ex.DW1/PX made between the Secretary of State for India in Council and Delhi Improvement Trust (constituted under the United Provinces Town Improvement Act, 1919 as extended to the Province of Delhi). I may observe that perusal of the said agreement shows that in Schedule I only the Nazul Revenue Estate of Qadam Sharif had been mentioned at serial no. 7 but in the entire agreement either in Schedule I or Schedule II the Khasra number has not been mentioned nor the Khasra no. 81 has been specified. Further, it is also not specified as to how many bighas/ biswas of the said Nazual land stood transferred to the Delhi Improvement Trust. A careful reading of the said agreement shows that the details/ specifications of the Nazul areas, which had been transferred to the Delhi Improvement Trust after their acquisition in accordance with law, have been provided in the Schedule along with the list of works for which they have been taken over. Nowhere in this agreement either the details of the area of Qadam Sharif i.e. Khasra No. 81, Qadam Sharif has been specified or the work for which it had been acquired and transferred, has been mentioned. (13) Fourthly, I note that the respondent/ DDA had place their reliance on another agreement between the Secretary to the Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 12 of 22 Government of India and Delhi Improvement Trust in respect of the land under Western Jamuna Canal Tail Distributory Scheme dated 23.09.1940. This agreement has not been separately and specifically exhibited but assuming for the sake of arguments that the appellants does not dispute the same, even the said agreement does not specify the area of Khasra No. 81, Qadam Sharif and the land so acquired along with area in Bigha or Biswa and the work for which it has been taken over. Though it certainly covers certain areas of Sadar Bazar North and Patti Johannuma, Mauza Delhi etc. I am sure that in case of the acquisition of Khasra No. 81, Qadam Sharif the same must had been reflected in the agreement which is not the case and the officer of the respondent/ DDA namely Jaipal Singh who has been examined by this Court under Order 10 CPC on 12.01.2017 confirm that in answer to question no.2 he has admitted that in the agreement dated 31.03.1937 the land in Khasra No. 81, Qadam Sharif, Delhi is not shown to have been handed over to the Delhi Improvement Trust. Hence, the entries in the record of rights could not have been relied upon by the Ld. Trial Court since no such entry existed. (14) Fifthly, it is an admitted case of the respondent/ DDA that the acquisition of the land which took place in the year 1937 was done under the provisions of Land Acquisition Act, 1894. I may observe that for any acquisition of land a procedure had been prescribed under the Land Acquisition Act 1894 which includes the notification relating to the details of the land acquired, the details of the occupants, inviting objections, demarcation of the area, grant of compensation for the land acquired as per the procedure etc. only after Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 13 of 22 which the same could have been transferred to the Delhi Improvement Trust. The officer of the DDA has confirmed that the DDA has not such document in their possession relating to the acquisition of the land in Khasra No. 81, Qadam Sharif, Delhi or the award thereof or grant of compensation etc. Hence, this fact has also not been taken into consideration by the Ld. Trial Court.
(15) Sixthly, it is not disputed that on 24.04.1956 the Municipal Commissioner of Delhi had sanctioned a building plan of the suit property vide Ex.PW1/3 which can only be done only after the title of the property is found be clear. Further, I may note that municipal numbers had been given to the area and also to the suit property i.e. 7913 to 7919 which in the early fifties were changed by the Municipal Corporation to 5984/15 wherein '15' reflects the ward number, which numbers are continuing as on date. There is no dispute with regard to the same. The municipal numbers including the ward number and street numbers can only be given by the municipal corporation where the title of the property is found to be clear. The area in question is an abadi area and there are built up houses. The Ld. Trial Court has failed to notice this aspect and hence when the entire area has been found to be thickly populated with builtup houses which have been constructed after a due sanction from the municipal authorities, the same could never have been a Nazul area. I find merit in the argument of the appellants that the area in question is an Abadi area and not a Nazul area and the appellants are in uninterrupted possession of the same after its construction in the year 1956.
Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 14 of 22 (16) Seventhly, I may observe that the Hon'ble Supreme Court has in the case of Narain Prasad Aggarwal (D) by LRs Vs. State of M.P. reported in AIR 2007 SC 2349 while dealing with the issue of Nazul Land had observed that:
"......... the term 'Nazul land' has a definite connotation. It inter alia means "Land or buildings in or near towns or villages which have escheated to the Government; property escheated or lapsed to the State: commonly applied to any land or house property belonging to Government either as an escheat or as having belonged to a former Government."
Record of right is not a document of title.
Entries made therein in terms of Section 35of Indian Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable....."
(17) The Jamabandi for the year 196465 which is Ex.DW1/1 and the Nazul Agreement Ex.DW3/1 which has been relied upon by the Ld. Trial Court to hold that the respondent/DDA has title over the property in question, were documents of year 196465 and 1937. The Ld. Trial Court has failed to note that Ex.DW3/1 nowhere records the Khasra no. 81 of the revenue estate of Qadam Sharif has been transferred to DDA. I may note that by Nazul Agreement only the land belonging to Government of India could have been transferred to the respondent and not the land belonging to private individuals and the respondent/ DDA has very cleverly evaded production of the Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 15 of 22 entire record of rights (Khatoni) to show as to when for the first time alleged ownership of respondent was recorded in the same. Though the officer of the DDA namely Jaipal Singh Kanoongo claimed that the details of Khasra No. 81, Qadam Sharif, Delhi has been mentioned in the Jamabandi of the year 1937 but I may observe that the Jamabandi of the year 1937 relating to the acquisition has not been placed on record or proved in accordance with law. (18) Lastly, I note from Ex.PW1/4 that for the first time Sh. Chunni Lal the predecessor in interest of the appellants had been given a notice under Section 7(3)/ 4(1) of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 on 22.04.1983 i.e. almost 30 years of the sale of the property in question and in response thereof, Sh. Chunni Lal had informed the DDA that they (DDA) have no claim or concern with the suit property and they should check with the MCD 'Wilson Survey Record' which would confirm that the DDA has wrongly issued the notice to them. He had specifically informed the respondent/ DDA that the properties are private and freehold residential for the last more than 60 years as mentioned in the Municipal Committee Records. Instead of confirming the same, the DDA without checking the Wilson Survey Record or getting the same confirmed from the MCD, proceeded further under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and the claims for recovery of damages and the proceedings under Public Premises (Eviction of Unauthorized Occupants) Act, 1971 were initiated after thirty years of its purchase. Hence, even otherwise, assuming the entire case of the DDA to be correct, the claims made by Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 16 of 22 them are highly time barred. In this background, there is no question of applicability of the provisions of Section 10 of the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 or the bar thereof. In so far as the objection of the DDA with regard to the notice under Section 53B of Delhi Development Act is concerned, I may observe that the suit initially filed by the predecessor in interest of the appellants was of an urgent nature being of Injunction Simplicitor which was later on converted into Declaration but when the respondent/ DDA had failed to show how they derive their rights over the property in question, the provisions of Delhi Development Act would not apply. Eve otherwise, in the case of Col. A.B. Singh Through LRs Vs. Sh. Chunnilal Sawhney and Ors. reported in MANU/DE/4066/2011 wherein the Hon'ble Delhi High Court has referred the judgment in the case of Yashoda Kumari Vs. MCD reported in AIR 2004 Del 225, held that once there is a contest to the suit, the suit cannot be held to be barred for not giving notice under Section 53B in as much as the basic object of Section 53B, like section 80 Code of Civil Procedure is to prevent the matters from coming to court and once the matter reach the court and are contested, the suit should not be dismissed on such technical grounds. The Hon'ble Court observed as under:
"......14. But this apart, taking in regard that this Court had registered the suit and granted the stay order and that respondents had contested it all through, even notice under Section 53B should be deemed waived in the facts and circumstances of the case. After all the purpose of notice under Section 53B of DDA Act is the Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 17 of 22 same as that of Section 80, Code of Civil procedure i.e. to bring the claim to the authority's notice so that it may concede or contest it. Once the authority had contested it on merits even at preliminary stage, it could not complain of nonservice of notice under Section 53B now. Nor could it be held fatal to justify the dismissal of the suit.
Viewed this, we allow this appeal and set aside the impugned dismissal order. Technically this would revive Appellant's suit for consideration of Appellant's application for grant of refusal of leave but we fell that much water had flowed down since and doing so would be an exercise in futility because parties have already contested the suit on merit all through and all these years. It would be ridiculous and hyper technical to take them back to square one for a fresh debate on service of two months' notice under Section 80, Code of Civil Procedure or Section 53B of DDA Act. Both notices shall, therefore, be deemed waived in the facts and circumstances of the case and Appellant's suit No. 316 shall be revived and disposed of under law on merit of the case....."
(19) It is writ large that there is an active contest of the suit by the respondent/ DDA for almost more than 32 years. Once the claim of the appellants has been brought to the notice of the respondent authority and once they have contested the same on merits at the preliminary stage they cannot complain of non service of the notice under Section 53B of the DD Act and hence I hereby hold that the suit of the appellants is not barred under Section 53B of the DD Act.
Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 18 of 22 (20) Hence, under the given circumstances, I hereby hold that the Ld. Trial Court has committed a serious error while dismissing the suit of the appellants. While on the one hand the appellants have prove the chain of documents i.e. their predecessor in interest having acquired the right over the suit property vide registered sale deed dated 07.08.1953 (Ex.PW1/1) having purchased the same from Sh. Bankey Khan who was declared as owner of the property vide order dated 19.11.1949 (Ex.PW1/2) passed by the Custodian of Evacuee Properties which the respondent/ DDA has not been able to effectively rebut. Further, it is writ large that the respondent/ DDA has not been able to prove their right over the property in question. (21) I am informed that the respondent/ DDA has initiated similar proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 as regards the other properties in the area. In so far as the present appellants are concerned, I am told that the Estate Officer has concluded the proceedings but in view of the pendency of the present case has not pronounced the order. I fail to understand how the appellants who are in uninterrupted possession of the property since 1956 and prior to that the previous owner Bankey Khan being in an uninterrupted possession as evident from the order of the Assistant Custodian of Evacuee Properties, can the appellants be held to be unauthorized occupants despite the property being constructed in the year 1956 after obtained a sanction plant from the Municipal Commissioner of Delhi and being assessed to House Tax which is being regularly paid by the appellants. The respondent/ DDA has miserably failed to prove how, when and by way of which Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 19 of 22 award they came into the possession and occupation of the property in question i.e. bearing Khasra No.81, Qadam Sharif, Delhi. They have failed to show any demarcation of the land and the Kabza Karyawahi in respect of the same. Further, the DDA has failed to prove how the land of Khasra No. 81, Qadam Sharif, Delhi was transferred to Delhi Improvement Trust (the said khasra number has not been specified in the agreement dated 31.03.1937 vide Ex.DW1/PX). Merely because some officer of the DDA i.e. Patwari claimed that the land on which the suit property is situated in Mauza Qadam Shairf, Delhi which according to him is a property owned by the Government of India and had been under the management/ control of Delhi Improvement Trust, does not entitle the DDA to initiate any proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 or levying any damages or claim possession thereof. In fact the jurisdiction of the Estate Officer can only arise if it is first proved that the municipal number in which the appellants were living was the same property which was in Khasra No. 81 and further that Khasra No. 81 had been duly acquired by the Government of India and possession was taken over by them and thereafter transferred to Delhi Improvement Trust after which the predecessor in interest of the appellants i.e. Bankey Khan or Chunni Lal trespassed into the suit property. The entire evidence is silent as to when the said trespass was noticed and what action was taken against the trespasser. The order dated 18.11.1949 Ex.PW1/2 passed by the Assistant Custodian of Evacuee Property confirm that Bankey Khan had filed a claim petition dated 18.04.1948 with respect to property No. 7913 to 7919 (old municipal number Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 20 of 22 admitted by the DDA) and had also produced the certified copy of the sale deed Ex.P1, House Tax Bill Ex.P2 and has been proved to be the owner of the property in question. The relevant portion of the said order dated 18.11.1949 is reproduced as under:
".......This is a claim petition dated 18 th April' 48 by Ms. Banke Khan with respect to property No. 7913. An amended petition was put in on 23rd Feb'49 with respect to 791319. I have examined the applicant. He has produced the certified copy of the sale deed Ex.P.1, house tax bill Ex.P2. He is proved to be the owner of the property in question...."
(22) Bankey Khan had produced a certificate from the District Magistrate that he has throughout remained in Rampur State and had not left for Pakistan. This proves that in the year 1948 when Bankey Khan filed a claim petition, he was in possession of the property and had acquired this right in the property vide sale deed certified copy of which order was Ex.P.1 before Sh. H.K. Chaudhary the Assistant Custodian of Evacuee Property. It is this which confirms that the DDA had raised this dispute after about more than 30 years when they were told by some of the official that the appellants had no right in the property. The manner in which the officials of the respondent/ DDA are exerting their rights over the private properties by initiating action under the Public Premises (Eviction of Unauthorized Occupants) Act, 1971 and that to after the expiry of period of limitation applicable in India, reflects total non application of mind on behalf of their orders. The Estate Officer acted as a quasi judicial body, is required to apply its mind and proceed in accordance Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 21 of 22 with the existing law and it is surprising that the said proceedings are continuing against the appellant for the last more than 30 years. (23) This being the background, I hereby set aside the impugned judgment/ decree dated 15.07.2015. The suit of the appellants (plaintiffs before the Ld. Trial Court) is Decreed and accordingly I declare that the property bearing No. 5984, Nabi Karim, Paharganj, New Delhi, which is a freehold property, belongs to the appellants and they have become owners of the same after the death of Sh. Chunni Lal. I further hold that the Estate Officer has no jurisdiction to initiate the proceedings against the appellants and other tenants in respect of the said property and the proceedings, if any, initiated by the Estate Officer are beyond jurisdiction, illegal, null and void. I therefore restrain the respondents no.1 and 2 from assessing the damages against the tenants in respect of the property in question. (24) Appeal is accordingly allowed. Parties to bear their own costs. Decree Sheet be prepared accordingly. (25) Trial Court Record be sent back along with the copy of this order.
(26) Appeal file be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 16.01.2017 ADJII(CENTRAL)/ DELHI
Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 22 of 22 Hira Lal (now deceased - through LRs) Vs. DDA RCA No. 61/2015 16.01.2017 Present: Sh. N.S. Negi Advocate for the appellants.
Professor Kamal Jit Chibber Advocate for the DDA. Ld. Counsels for both the parties submit that they do not wish to file any supplementary arguments in writing. Heard oral arguments. Be listed for orders at 4:00 PM.
(Dr. Kamini Lau) ADJII(Central)/ 16.01.2017 4:00 PM Present: Sh. N.S. Negi Advocate for the appellants.
Professor Kamal Jit Chibber Advocate for the DDA. Vide my separate detail order dictated and announced in the open court, but not yet typed, the Appeal is allowed. Parties to bear their own costs. Decree Sheet be prepared accordingly.
Trial Court Record be sent back along with the copy of the detail order.
Appeal file be consigned to Record Room.
(Dr. Kamini Lau) ADJII(Central)/ 16.01.2017 Hira Lal (now deceased - through LRs) Vs. DDA & Anr., RCA No. 61/2015 Page No. 23 of 22