Delhi District Court
Kaushar Ali vs Delhi Development Authority on 11 March, 2022
IN THE COURT OF MS. POOJA TALWAR
ADDITIONAL DISTRICT JUDGE01, SOUTH DISTRICT,
SAKET COURTS, NEW Delhi.
RCA No. 8/2022.
DLST010007932022
In the matter of:
1. Kaushar Ali,
S/o late Zahid Hussain,
R/o H. No.T108,
Banjara Camp., Nut Basti,
Village Khirki, Malviya Nagar,
New Delhi110017.
2. Kaishar Ali,
S/o late Zahid Hussain,
R/o H. No.T108,
Banjara Camp., Nut Basti,
Village Khirki, Malviya Nagar,
New Delhi110017.
3. Layak Ali,
S/o late Zahid Hussain,
R/o H. No.T108,
Banjara Camp., Nut Basti,
Village Khirki, Malviya Nagar,
New Delhi110017.
4. Nasir Ali,
S/o late Zahid Hussain,
R/o H. No.T109,
Banjara Camp., Nut Basti,
Village Khirki, Malviya Nagar,
New Delhi110017. ....Appellants.
RCA No.8/2022, Kaushar Ali & Ors. v. DDA Page No.1/10
VERSUS
Delhi Development Authority,
Through its ViceChairman,
Vikas Sadan, INA,
New Delhi. ....Respondent.
Date of institution : 02.08.2018.
Final arguments heard on : 10.03.2022.
Date of pronouncement of judgment : 11.03.2022.
JUDGMENT
Appeal under Section 96 of CPC for setting aside the impugned Order dated 21.12.2021, passed by Ld. Senior Civil Judge, South District, Saket Court, New Delhi.
1. The appellant has filed the present appeal for setting aside the order dated 21.12.2021, passed by Ld. Trial Court wherein the suit of plaintiffs was dismissed under Order XII Rule 6 CPC read with Order XV Rule 1 CPC.
Brief facts as stated in the plaint:
2. It is stated in the plaint that plaintiff nos. 1 to 3 are owners and in possession of property bearing No.T108 and plaintiff No. 4 is the owner and in possession of property no. T 109, Banjara Camp, Nut Basti, Khirki Village, Malviya Nagar, Delhi110017. The said properties are constructed in area of about 50 square yards and are interconnected. Both the properties are constructed till the second floor. The properties RCA No.8/2022, Kaushar Ali & Ors. v. DDA Page No.2/10 were purchased by the plaintiffs from recorded owner Shri Ramdin, S/o Sh. Pokhi Ram vide Agreement to Sell, Power of Attorney, Will, Possession Letter, Receipt etc. The GPA was got registered in the office of SubRegistrar. Since, the purchase of the properties, plaintiffs were residing there alongwith their family members without any hindrance or interference.
3. It is further stated that the erstwhile owner had a dispute with UOI. Hence, a civil suit challenging the acquisition proceedings was filed with case titled Natthu Singh and 135 others v. UOI, bearing CS No. 102/1969. The same was decreed vide judgment dated 30.01.1975 in favour of plaintiffs therein, declaring the plaintiffs as the owner of the land in dispute. Even the appeal filed by UOI vide RCA No. 80/1980 was dismissed vide judgment dated 05.03.1981. No further appeal was preferred, hence, the same has attained finality.
4. It is further stated that as the acquisition proceedings were declared null and void, therefore, now DDA cannot claim the land in respect to the properties in question forming part of Khasra No. 16 of Village Khirki, New Delhi.
5. Plaintiffs further stated that on 19.07.2018, the staff of defendant came alongwith local police to the suit properties and without any prior intimation or warning, they carried out demolition of major part of the property thereof. They even did RCA No.8/2022, Kaushar Ali & Ors. v. DDA Page No.3/10 not allow the plaintiffs to remove their belongings. The said action on the part of defendants, without issuance of any mandatory show cause notice under section 30 of DDA Act, to the plaintiffs by giving reasonable opportunity to them to be heard, is illegal and against the principles of natural justice.
6. It is further stated that even otherwise the demolition action is illegal as the properties in dispute are otherwise protected under the National Capital Territory of Delhi Special Laws (Special Provision) Second (Amendment) Act, 2014 which is now extended till 2020.
7. Further, the averments of plaintiffs are that the defendant has threatened to dispossess the plaintiffs from the suit properties and to erect a boundary wall claiming that the land belongs to the said defendant and plaintiffs are merely encroachers /trespassers in the same. Hence, the suit.
8. Written statement was filed by the defendant DDA in support of its claim stating that the land in question belongs to the defendant which was transferred to it by Ministry of Rehabilitation, Govt. of India vide notification no. 4(19)/78SS.II (Vol.II) dated 02.09.1982 under the package deal in 30 crores and physical possession of the land was taken over by defendant on 22.12.1987. An award no. 20/8788 alongwith statement showing the area handed over and the copy of plan of the area RCA No.8/2022, Kaushar Ali & Ors. v. DDA Page No.4/10 established the right of the defendant in the suit properties.
9. In reply on merits, it is stated by defendant that plaintiffs had made unauthorized constructions on the DDA land which was removed on 17.11.2014, 18.07.2016 and recently on 19.07.2018. It is also alleged that the suit land does not fall in Khasra no. 16, Khirki Village but rather it falls in Khasra no. 253 which is a government land. Thus, as per defendant, the plaintiffs have encroached upon the suit land after demolition/ removal of unauthorized structure, therefore there is no need of issuance of any notice for removal of encroachment as the status of plaintiffs is that of trespassers. The defendant denied that plaintiffs are entitled to protection under the Delhi Special Laws because the property in question were constructed much prior to the cut off date.
10. Replication to the written statement was filed by plaintiffs, wherein they denied the averments of defendant in the written statement and reiterated the facts of the plaint.
11. During the course of proceedings, a status report was filed by defendant/DDA on 08.11.2021, as per which the properties in question were completely demolished on 17.11.2014 and 18.07.2016. Inspection of the property was carried out on 03.09.2021 when it was found that temporary Jhuggi is constructed by encroacher at suit RCA No.8/2022, Kaushar Ali & Ors. v. DDA Page No.5/10 property.
Grounds of Appeal:
12. Present appeal has been preferred on the ground that the Ld. Trial Court has dismissed the suit without considering the fact that all the appellants are residing at the suit properties since 2005 and they did not mention in any paragraph of the plaint that they are not in possession of the suit properties. Even after demolition of the properties, appellants are living there.
13. Appellants further stated that erroneous prayer clause due to wrong drafting will not affect their rights in the properties and that the suit cannot be dismissed on that ground.
14. For the sake of convenience, appellants are referred to as plaintiffs and respondent as defendant.
15. I have heard the rival contentions of counsels for both the parties and have perused the trial court records carefully.
16. The present appeal has been filed by the appellant primarily on the ground that the Ld. Trial Court erred in dismissing the suit on the point of maintainability citing the reason of not seeking possession by the plaintiffs. It is reiterated in the appeal that the plaintiffs have been in possession of the properties hence, the relief of possession was not required. It is RCA No.8/2022, Kaushar Ali & Ors. v. DDA Page No.6/10 further stated that the prayer clause has been wrongly drafted by counsel for plaintiffs and if permitted, same can be rectified by way of amendment of the suit. No other ground has been raised impugning the order of the Ld. Trial Court.
17. I have perused the order passed by the Ld. Trial Court.
All the arguments advanced by counsel for plaintiffs have been incorporated in the said order and after considering the same, the impugned order has been passed.
18. Before discussing the merits of the case, it would be pertinent to take the ground raised by the plaintiffs with respect to filing of amendment application and on the observations given by the Ld. Court with respect to declaration sought by the appellant. Perusal of trial court record would reveal that after obtaining the interim injunction in their favour appellants did not come forward to argue on the application under Order 39 Rule 1 and 2 CPC and did not file replication for 7 dates before the case was fixed for arguments on maintainability. Ld. Trial Court granted ample opportunities to the plaintiff before the impugned order was passed. Hence, the ground raised by the plaintiffs on the aspect of permitting the plaintiffs to file an application for amendment is not tenable.
19. Coming to the next ground raised by the appellant wherein it is contended that the plaintiffs are in possession of the RCA No.8/2022, Kaushar Ali & Ors. v. DDA Page No.7/10 property and hence no relief of possession was required to be sought in the suit. Ld. Trial Court observed that plaintiffs have themselves pleaded that major portion of the properties was demolished by the defendant on 19.07.2018. Subsequently, it was alleged by the defendant that complete demolition drive again was taken with respect to the suit properties and that the plaintiffs are not in possession of the properties any more.
20. Considering the contrary stands taken by both the parties, Ld. Trial Court called for status report from DDA which categorically stated that complete demolition has already been carried on the suit properties but jhuggies were again constructed on the same. The said status report was not challenged by the plaintiffs and despite opportunities plaintiffs failed to show that how they are in possession of the suit properties once the same have already been demolished.
21. Ld. Trial Court observed that once the plaintiffs have already been dispossessed hence the suit for declaration is not maintainable without the consequential relief of possession. Adding on to the observation of the Ld. Trial Court as per the settled law, a simplicitor suit for declaration without consequential relief itself is not maintainable. The plaintiffs in the instant case failed to prove their possession subsequent to the demolition drive dated 19.07.2018. The documents relied upon by the plaintiff and argued before this court, were placed on RCA No.8/2022, Kaushar Ali & Ors. v. DDA Page No.8/10 record in the trial court, would be of no consequence as they are of date prior to 19.07.2018.
22. It would also not be out of place to reiterate that the suit seeking negative declaration too is not maintainable though the Ld. Trial Court has discussed the same in detail however adding on to what has already been held in the suit of the plaintiffs even if assuming declaration is sought by the plaintiffs is granted against the defendants it will not affect the rights and liabilities of the plaintiffs as the same are independent. In other words, the rights of the plaintiffs are not dependent upon declaration of title of the defendant. The suit for negative declaration is not permissible under the law as the plaintiffs can claim only that right which is vested in them but cannot alternatively seek a declaration that no right is vested in the defendant.
23. The object of Section 34 of the Specific Relief Act, 1963, is to protect the plaintiff's title from adverse attachment and to dispel the cloud cast upon the plaintiff's title or legal character he is entitled to. A negative declaration with regard to the status of the defendant, however, cannot be maintained without showing the plaintiff's own right.
24. During the course of arguments, counsel for plaintiffs pressed only upon the fact that decision of the Ld. Trial Court is RCA No.8/2022, Kaushar Ali & Ors. v. DDA Page No.9/10 erroneous on the aspect of possession which is also evident from the grounds of appeal raised by the plaintiffs. Since the impugned order has been challenged only on this specific ground which has already been dealt with, hence, without discussing any details on the aspect of plaintiffs stand that they are protected under the National Capital of Delhi Special Laws, it is hereby held that Ld. Trial Court had discussed at length and concluded that the said laws are not applicable to the plaintiffs. I am in agreement with the Ld. Trial Court that this aspect and the same point needs no more deliberation also for the fact that it has not been challenged in appeal.
25. I find no infirmity or illegality in the order of the Ld. Trial Court hence, the same is upheld. Appeal stands dismissed. Trial Court record be sent back with copy of this order. Appeal file be consigned to record room after due compliance. Announced in open court On 11.03.2022.
(Pooja Talwar) Digitally signed by Additional District Judge01, POOJA POOJA TALWAR (South) Saket District Courts, TALWAR Date: New Delhi.
2022.03.14 09:29:50 +0530 RCA No.8/2022, Kaushar Ali & Ors. v. DDA Page No.10/10