Delhi District Court
Narender Singh Sandhu vs Delhi Development Authority on 1 June, 2015
Page No. 1 of 13
IN THE COURT OF MS. CHHAVI KAPOOR, CIVIL JUDGE,
WEST DISTRICT, TIS HAZARI COURT, DELHI.
Unique ID No. 02401C5612002004
Suit No. 115/14
Narender Singh Sandhu
S/o Late Sh. Gurbachan Singh Sandhu,
R/o C6, Manak Vihar Extension,
Near Subhash Nagar, New Delhi 27
.................... Plaintiff
Versus
Delhi Development Authority
Through its Vice Chairman,
Vikas Sadan, I.N.A.,
New Delhi.
....................Defendant
Date of Institution of the Suit : 18.08.2004
Date of Reserving of Judgment : 19.05.2015
Date of Judgment : 01.06.2015
JUDGMENT
1. A suit for permanent Injunction has been filed by plaintiff against Delhi Development Authority (DDA in short). Facts of the suit, in Suit No. 115/14 Narinder Singh Sandhu Vs. DDA Page No. 2 of 13 brief, are as under:
2. Plaintiff claims to be the owner in possession of a property bearing no. C6, Manak Vihar Extension, Near Subhash Nagar, situated over an area of 150 sq. yds. On the land of village Tihar, New Delhi27. A site plan has been filed showing the portion in possession of plaintiff in red colour.
3. As per paragraph no. 2 of plaint, plaintiff has purchased the above said property from its previous owner Smt. Raj Kaur W/o Late Sh. Sheetal Singh vide an agreement to sell, General Power of Attorney, Affidavit and a receipt, all dated 21.09.1995. It is claimed that Sh. Sheetal Singh had purchased the property from one Sh. Sanjay Grover, who had purchased property from one Smt. Usha Rani, W/o Ravi Kumar. It was claimed that Smt. Usha Rani had purchased the property from the original owner of the property namely Sh. Manak Chand, S/o Dittu Singh.
4. It has been claimed that the property falls in khasra no. 1639 of village Tihar, which was allotted to Sh. Manak Chand by the Ministry of Rehabilitation, Government of India in lieu of the land left by him in Pakistan at the time of partition. It is also claimed that the property had been mutated in the name of Sh. Manak Chand in the revenue record vide entry no. 5624. In this regard, it has also been submitted that the allotment made in the name of Sh. Manak Chand was cancelled by the competent authority once but the order of cancellation was quashed by the Hon'ble Apex Court. It is claimed that the plaintiff has stepped into the Suit No. 115/14 Narinder Singh Sandhu Vs. DDA Page No. 3 of 13 shoes of Sh. Manak Chand and is running a factory in the suit property in the name of "Technica Machine Corporation". It is claimed that the previous owner Smt. Raj Kaur and her husband were also running a factory from the same premises for which the necessary licenses had been issued by the government authority.
5. It has been alleged in the plaint that on 16.08.2004, certain officials of DDA visited the suit property and threatened to demolish the structures of the plaintiff built thereupon. However, the plaintiff resisted this attempt and succeeded in thwarting their illegal designs. Nonetheless, the threat still looms around as it is claimed that the DDA officials are hell bent upon ruining the life and livelihood of the plaintiff without any just reason or cause. Hence, plaintiff has approached this court with the following prayer:
(i) To pass a decree for permanent injunction in favour of the plaintiff and against the defendant, its officials, employees, officers, agents, servants and attorneys etc. restraining thereby from demolishing the suit property and from interferring in the peaceful enjoyment of the suit property bearing no. C6, situated at Manak Vihar Extension, Village Tihar, near Subhash Nagar, New Delhi - 110027, more specifically shown in red colour in the site plan attached with the plaint/suit.
(ii) That the costs of the suit may also be awarded in favour of the plaintiff and against the defendant.
(iii) To pass any other or further relief which this Hon'ble Court may Suit No. 115/14 Narinder Singh Sandhu Vs. DDA Page No. 4 of 13 deem fit and proper in the interest of justice.
6. A Written Statement was filed by DDA in which various preliminary objections were raised in opposition to the suit of the plaintiff. It was claimed that the suit of the plaintiff was bad for want of notice u/s 53 B of DD Act 1957. It was claimed that the suit had been incorrectly valued for the purposes of court fees and jurisdiction. Upon merits, it was claimed that the plaintiff had encroached upon the government land of khasra no. 1640 min of Village Tihar and had concealed this fact from the court. In this regard, it was further submitted that an earlier suit bearing no. 431/89 titled "Sheetal Singh Vs DDA" had been filed in respect of the same property, in which the plaintiff herein had represented to be the legal representative of Sh. Sheetal Singh. It was claimed that issues were framed in the said suit but the suit was abruptly withdrawn on 20.07.2004. Since this fact had nowhere been disclosed in the plaint, it was claimed that this conduct of the plaintiff showed that he was guilty of concealment of material facts from the court. Further, it was stated that the land of khasra no. 1640 min of village Tihar, Delhi had been acquired by the government by award no. 1916 and the physical possession of the land was taken over by the LAC on 03.04.1967. It was also claimed that land was placed at the disposal of DDA by virtue of a notification dt. 16.02.1972, issued under provisions of section 22 of the DD Act, 1957. It was denied that the suit land was ever alloted or mutated in the name of Sh. Manak Chand by the Ministry of Rehabilitation. It was denied that Suit No. 115/14 Narinder Singh Sandhu Vs. DDA Page No. 5 of 13 any officials of DDA had ever visited the suit property for carrying out any demolition and hence, it was stated that no cause of action was made out in favour of the plaintiff and against the defendant. Accordingly, it was prayed that the suit of the plaintiff be dismissed.
7. A replication was filed by the plaintiff thereby denying the averments made in the written statement and reiterating and reaffirming the facts stated in the plaint. Regarding the earlier suit instituted by the Sh. Sheetal Singh in respect of the same suit property, it was averred that the said suit was withdrawn by the plaintiff after having purchased the suit property during the pendency of the case. It was claimed that liberty was given to the plaintiff to institute a fresh suit on the same cause of action and hence, the filing of the present suit was justified. Accordingly, it was prayed that the suit of the plaintiff be decreed.
8. On the basis of pleadings of the parties, following issues were framed for adjudication in the suit on 19.01.2006.
1. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP
2. Whether the suit of the plaintiff is not maintainable for want of notice u/s 53 B of DDA Act? OPP
3. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD
4. Whether the plaintiff has acquired the govt. land forming khasra no.
1640 min of village Tihar? OPD
Suit No. 115/14 Narinder Singh Sandhu Vs. DDA
Page No. 6 of 13
5. Relief.
9. Plaintiff examined only two witnesses in its evidence. Plaintiff examined himself as PW1 and tendered his affidavit Ex. P1. He relied upon the following documents; Ex. PW1/1 is the site plan of the suit property; Agreement to sell is Ex. PW1/2, General power of attorney is Ex. PW1/3, Certified copy of the Nakal Khatoni Pemaish for the year 195152 for khasra no. 1639, village Tihar is Ex. PW1/4, The registration of the suit premises by MCD is Ex. PW1/5, Copy of electricity bill is Ex. PW1/6 and copy of telephone bill installed in the suit premises is Ex. PW1/7.
10. Plaintiff also examined one Sh. Mahinder Singh, Halka Patwari, Rajouri Garden in his evidence. This witness proved the document already exhibited as Ex. PW1/4.
11. Defendant has examined the following four witnesses; Sh. Jaipal Singh, Kanoongo, DDA has been examined as DW1. He has relied upon the following documents; Copy of award no. 1916 is Ex. DW1/1, Copy of possession proceedings dt. 03.04.1967 is Ex. DW1/2, Copy of notification dt. 16.02.1972 is Ex. DW1/3, Copy of aks shijra is Ex. DW1/4, Copy of letter dt. 16.03.2005 written to the police for providing police assistance is Ex. DW1/5 (colly), Copy of Judgment in the case of Manak Chand Vs NCT & DDA decided by the predecessor of the hon'ble Court vide judgment dt. 24.02.1996 is Ex. DW1/7, Appeal decided on 17.09.1997 is Ex. DW1/8 and copy of demarcation report is Ex. DW1/9.
Suit No. 115/14 Narinder Singh Sandhu Vs. DDA Page No. 7 of 13
12. Defendant has also examined Sh. Balraj, Naib Tehsildar in DDA who tendered his evidence by way of affidavit Ex. DW2/A and relied upon the documents already exhibited in the testimony of DW1. Defendant examined Sh. B.M. Thareja, Deputy Director and Dharam Pal, Naib Tehsildar in DDA, as DW3 and DW4 respectively. DW3 has relied upon the documents already exhibited as Ex. DW1/1 to Ex. DW1/9. DW4 has also relied upon the documents already exhibited as Ex. DW1/1 to Ex. DW1/6 and Ex. DW1/9 (colly) (already exhibited in the evidence of defendant no.1).
13. Final arguments were heard by this court.
14. I have considered the rival contentions raised by both the sides and have perused the judicial records. My issuewise findings are as follows:
ISSUE NO. 115. Onus to prove that plaintiff was entitled to relief of permanent injunction was placed upon his own shoulders. Let us find out if the plaintiff has been successful in discharging the onus.
16. Plaintiff had claimed that he had become the owner of the suit property after having purchased the same from its previous owner Smt. Raj Kaur w/o Late Sh. Sheetal Singh through an agreement to sell, GPA, affidavit and receipt dt. 21.09.1995. These documents have been relied upon by the plaintiff in his evidence as documents Ex. PW1/2. These documents are unregistered and cannot be read in evidence as per Section Suit No. 115/14 Narinder Singh Sandhu Vs. DDA Page No. 8 of 13 49 of Indian Registration Act. This has already been observed to by the court in the cross examination of plaintiff/PW1 conducted on 07.12.2006. Needless to state that such unregistered documents cannot be considered to having placed the plaintiff with any proprietary rights in the property. Further more, plaintiff had led evidence so as to show that one Sh. Manak Chand s/o Dittu Singh was the recorded owner of the property as per the revenue records but the chain of title documents of the property, emanating from the aforesaid Manak Chand were not filed or proved on record. In the plaint, it was claimed that Sh. Manak Chand had sold the property to Smt. Usha Rani, who in turn had sold the property to Sh. Sanjay Grover, who had further sold it to Sh. Sheetal Singh i.e. husband of Smt. Raj Kaur. It had come in the written statement filed by DDA and thereafter in the replication that Sh. Sheetal Singh had expired during the pendency of the earlier civil suit filed by him with respect to the same suit property wherein his LRs were substituted in his place. However, the plaintiff had merely stated that he had purchased the suit property from the widow of Sh. Sheetal Singh but it was nowhere stated that the sale was made after obtaining the consent of the other LRs of deceased Sh. Sheetal Singh. A situation where other LRs of deceased Sh. Sheetal Singh could have objected to the transfer of the property by one of the Lrs to the exclusion of the others cannot be ruled out. Even otherwise, the plaintiff had nowhere stated in the entire suit that the property was transferred to him by the only surviving LR of Sh. Sheetal Singh or with the consent of Suit No. 115/14 Narinder Singh Sandhu Vs. DDA Page No. 9 of 13 all his LRS. The title of the plaintiff, as arising from Smt. Raj Kaur is, therefore, under cloud.
17. It was argued that the plaintiff was guilty of concealment of material facts from this court. It has already been brought to my notice that the fact of an earlier civil suit filed in respect of the same suit property, in which the plaintiff was also a party had not been pleaded to in the first place in the plaint. After an objection was raised in this regard in the written statement, the plaintiff had clarified that he had withdrawn the earlier suit filed by Sh. Sheetal Singh on 20.07.2004. It was claimed by the plaintiff that the earlier court had granted him liberty to file fresh suit on the same cause of action. No such order of the court dt. 20.07.2004 was proved on record in the evidence of the plaintiff. Further, on being cross examined the plaintiff stated that he did not know any Sheetal Singh. However, he went on to admit that he had withdrawn the suit filed by Sh. Sheetal |Singh on 20.07.2004 by representing to the court that he was his attorney holder. Plaintiff had also filed a copy of the khatoni records of the year 195152 for the suit property in khasra no. 1639, village Tihar in the name of Sh. Manak Chand S/o Sh. Dittu Singh but he admitted in his evidence that the said revenue record nowhere contained his name. Plaintiff had also relied upon a license issued by the MCD Department in respect of the suit property but he admitted that the document did not bear the khasra number of the property in dispute. Plaintiff had relied upon a site plan Ex. PW1/1 but strangely,he stated that Suit No. 115/14 Narinder Singh Sandhu Vs. DDA Page No. 10 of 13 the site plan was prepared in Tis Hazari Courts. In circumstances of the case, where it was admitted by implication that the site plan was not prepared at the site, reliance upon the same could not be placed by the court. The various licenses and telephone connection and electricity connection receipts cannot be said to have conferred any valid title of the suit property upon the plaintiff. There is not even iota of evidence to link the plaintiff with the property, which is stated to be falling in khasra no. 1639, village Tihar, Delhi. Further, plaintiff has not been able to show as to how he came in possession of the property as he has not been placed in possession of the land by Sh. Manak Chand, whom he claims to be the recorded owner of the suit property. On the other hand, the defendant has claimed the plaintiff to being in possession of land of khasra no. 1640 min admeasuring 2 bigha and 5 biswa, acquired vide an award no. 1916 (ex. DW1/1). The present Court had ordered for the suit land to be demarcated in order to ascertain whether the same fell in khasra no. 1639 or 1640 of village Tihar. A demarcation report was submitted to the court, which was challenged by the plaintiff. The said demarcation report stated that the property of the plaintiff fell within khasra no. 1640 min, village Tihar and not in 1639 as claimed in the plaint. The objections to the demarcation report were dismissed on 14.02.2013. Whereafter, plaintiff had not prayed for carrying out fresh demarcation of the suit land. The order of the trial court upholding the validity of the demarcation report has not been challenged by the plaintiff till today. Hence, it can be Suit No. 115/14 Narinder Singh Sandhu Vs. DDA Page No. 11 of 13 said that the report of the demarcation is a strong and reliable piece of evidence of defendants case. Various suggestions had been put by the plaintiffs counsel to the defence witnesses thereby stating that the property of the plaintiff fell in khasra no. 1639, village Tihar. All the suggestions have been denied by the defence witnesses. Plaintiff has not filed any other demarcation report or document to show that he is in possession of khasra no. 1639, village Tihar. In view of the evidence led by both the parties, and applying the priciple of "Preponderance of probabilities" to the case in hand, I have come to an opinion that the suit land falls in khasra no. 1640, village Tihar. The plaintiff has failed to show as to how he came in possession of the suit property and in what right was he occupying the same. Since land of khasra no. 1640 min measuring 2 bigha and 5 biswah village Tihar has been acquired by the government and placed at the disposal of DDA in the year 1972, hence, the plaintiff has no right, title or interest over the said government land. In circumstances of the case, the discretionary relief of injunction cannot be granted to plaintiff. Issue is accordingly decided against the plaintiff.
ISSUE NO. 218. A preliminary objection has been taken in the written statement filed by DDA that the plaintiff has not served the defendant with mandatory notice u/s 53 B of DD Act. During the evidence of PW1 (plaintiff), he had stated in his cross examination that DDA officials had never visited the suit property/site. This in contradiction to the averments Suit No. 115/14 Narinder Singh Sandhu Vs. DDA Page No. 12 of 13 made in the plaint that DDA officials had visited the suit property on 16.08.2004 with a view to carry out demolition action. No suggestion has been given to DW1, DW2, DW3 and DW4 that officials of DDA had visited the suit property on 16.08.2004 with a view to carry out demolition. In circumstances of the case, it can be said that the plaintiff has failed to prove that there was any imminent threat of demolition upon suit property at the hands of DDA officials. Since, it has not been proved that there was an urgency in filing the suit without waiting for service of notice u/s 53 B of DD Act upon the defendant, hence, the benefit of proviso of Section 53 B of DD Act cannot be granted to the plaintiff. The suit of the plaintiff is, therefore, bad on the account of non service of mandatory notice u/s 53 B of DD Act. Issue is decided in favour of the defendant.
ISSUE NO3.
19. The defendants have not adduced any evidence to show that the suit of the plaintiff has been incorrectly valued for the purposes of court fees and jurisdiction. Issue is therefore, decided against the defendant.
ISSUE NO. 420. In view of my findings on the issue no. 1 given above, the present issue is decided in favour of the defendant. RELIEF
21. In view of the findings on the issues framed in the suit, it is held that the plaintiff is not entitled to the relief of Permanent Injunction.
Suit No. 115/14 Narinder Singh Sandhu Vs. DDA Page No. 13 of 13 Suit of the plaintiff is accordingly dismissed. Parties to bear their own costs.
22. Decree Sheet be prepared accordingly.
Announced in the Open Court (CHHAVI KAPOOR)
today on 01st June, 2015 Civil Judge06/West
Tis Hazari Courts, Delhi
This judgment contains 13 pages and all are signed by me.
(CHHAVI KAPOOR)
Civil Judge06/West
Tis Hazari Courts, Delhi
Suit No. 115/14 Narinder Singh Sandhu Vs. DDA