Delhi District Court
Cs. 60 6830/2016 Smt.Shanta Rani vs . Dda. Page 1 /21 on 21 October, 2021
CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 1 /21
IN THE COURT OF DEEPAK KUMAR-1,
COMMERCIAL CIVIL JUDGE (WEST), TIS HAZARI COURTS, DELHI.
CS No: 606830/2016
CNR No. DLWT03-000006-1995
Smt. Shanta Rani
W/o Sh. Dev Dutt Madan
R/o 125-B, R.P.S Flats,
Vikrant Enclave, Mayapuri,
New Delhi. ....Plaintiff
VERSUS
1. Delhi Development Authority
To be served through Its
Vice-Chairman/Secretary,
Vikas Sadan, Near INA Market,
New Delhi.
2. Lt. Governor,
National Capital Territory of Delhi,
Raj Bhawan,
Delhi.
3. Union of India,
Ministry of Urban Development,
Through its Secretary,
Nirman Bhawan,
New Delhi. .. Defendants
Date of Filing : 04.07.1995
Date of Judgment : 21.10.2021
JUDGMENT
1. Present suit has been filed by the plaintiff praying therein to pass a decree for possession of plot No.99 measuring 200 sq. yds. forming part of Khasra No.658 situated in CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 2 /21 the Revenue Estate of Village at Bindapur, New Delhi in favour of the plaintiff and against the defendant along with the costs of the suit.
2. It is inter-alia averred by the plaintiff that the plaintiff is Bhumidar/owner in possession of plot bearing no. 99 measuring 200 sq. yds forming part of khasra no. 658 situated in the revenue estate of Bindapur, New Delhi having purchased the same from Smt. Sarjo Devi w/o Sh. Ram Sarup, R/o Village Bindapur, New Delhi through a registered sale deed dated 01.08.1984 duly registered with Sub-Registrar, Delhi. That the actual and physical possession of the aforesaid land (hereinafter called the suit land) was handed over by Smt. Sarjo Devi to the plaintiff. That the aforesaid suit land/plot was purchased after obtaining no objection certificate from the office of Tehsildar Notification/Addl. Distt. Magistrate (LA), Delhi.
It is further averred by the plaintiff that the Delhi Administration issued a notification U/S 4 of the Land Acquisition Act for acquisition of the suit land being notification No.F.9(16)-84-L&B dated 27.01.1984 which was followed by a declaration U/S 6 of the Land Acquisition Act for an area of 2895 bighas and 8 biswas of land including the suit land in Village Bindapur vide notification No.F.9(16)/84-L&B dated 18.09.1984. That since the entire adjoining area was heavily built up and under a policy decision, the lands which were built up or surrounded by built up areas prior to the date of notification U/S 4 of the Land Acquisition Act were released from acquisition and the notification issued U/S 4 & 6 of the Land Acquisition Act were allowed to lapse by efflux of time U/S 11A of the Land Acquisition Act. That no award in respect of the suit land was announced nor the possession of the land was ever taken under the Land Acquisition Act or under any other law of the land and at present the land bearing Khasra No. 658 is free from acquisition proceedings and any notification for acquisition of the land.
The further submissions of the plaintiff as stated in the plaint is being reproduced as under:-
"That the Land Acquisition Collector announced the award bearing No.163/86-87 within the suit land was not included and after two years from the date of issuance of the notification/declaration U/S 6 of the Land Acquisition Act, the land automatically stood released from acquisition proceedings."CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 3 /21
It is further averred by the plaintiff that inspite of the fact that the suit land was neither acquired under any of the provisions of the law of the land nor any compensation was assessed for the said land, defendant no.1, DDA bounded the suit land by barbed wires without permission of the plaintiff and also put a Board dis-playing that the suit land belongs to DDA. That the plaintiff immediately filed a suit for permanent injunction against defendant no.1 and in reply to the said suit defendant no.1 took number of objections including that the suit is bad for non-joinder of Union of India as a necessary party and that since the defendant no.1 is in possession, the suit for permanent injunction is not maintainable. That the plaintiff out of abundant caution moved an application U/O 23 of the Code of Civil Procedure before the court and sought leave of the Court withdrawing the suit with a liberty to file a fresh suit on the same action. The Court was pleased to grant liberty to the plaintiff to file a fresh suit vide order dated 01.08.1994.
It is further averred that Union of India is alleged to have issued a notification placing the land at the disposal of the DDA U/S 22 of the Delhi Development Act. That the said notification is illegal against the provisions of law as no such notification can be issued unless the land is acquired by Union of India nor such land which has not been acquired can be placed at the disposal of the DDA. That the DDA has also raised certain constructions on the suit land illegally and unauthorisedly without the consent of the plaintiff by taking law in its hands, as none of the defendants has any right to do so until the land is acquired and placed at the disposal of the DDA. The land of the plaintiff has not been acquired under any law of the land and defendants are bound to remove any structure that has been constructed on the land and restore back the possession of the vacant plot to the plaintiff. That the plaintiff has also served registered AD notices dated 31.01.1995 U/S 80 of the Code of Civil Procedure and U/S 53(b) of the DDA on the defendants which were duly received by them. That the defendant has no right, title or interest legal or otherwise in the suit land. That the plaintiff alone is the owner and has clear title in the same. That the cause of action for filing the suit arose on various occasions. The cause of action still subsists as the defendants are in illegal and unauthorised possession of the land and have not even cared to reply to the notices issued U/S 80 and 53(B) of the DDA.
CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 4 /21Lastly, it is prayed by the plaintiff that a decree for possession of plot No.99 measuring 200 sq. yds. forming part of Khasra No.658 situated in the revenue estate of Village at Bindapur, New Delhi be passed in favour of the plaintiff and against the defendants along with the costs of the suit.
3. Thereafter, the defendants were served. Written statement was filed by the defendant/DDA, in which it is inter-alia contended by the DDA that the suit land falls in Khasra No. 658 situated in the Revenue Estate of Bindapur, New Delhi, which has been acquired vide award bearing No. 163/86-87. That the physical possession of the said land has been taken over from LAC/L & B on 03.10.86. That the notification U/Sec. 22 (1) of the D.D. Act have been issued and as such, the plaintiff has no locus standi or any right or title over the suit land for any relief.
It is further contended by the DDA that after acquisition of the land and taking over the possession, the answering defendant has transferred the land to MCD on 11.11.91 and the same is under its possession and as such, the MCD is a necessary party but it has not been impleaded. That the plaintiff under the garb of suit for possession is seeking declaration and as such, the statutory notice U/Sec. 53-B of the D.D. Act, 1957 is compulsory. However, the same has not been served upon the defendant.
4. Record reveals that replication has also been filed by the plaintiff to the written statement filed by the defendant. The plaintiff has denied all the allegations leveled by the defendant and reiterated and re-asserted all the facts as stated in the plaint.
5. Record further reveals that vide order dated 14.09.2015, Ld. Predecessor of this court allowed the application filed u/o 6 Rule 17 CPC on behalf of the defendant/DDA and accordingly, amended written statement filed on behalf of the defendant/ DDA was taken on record. Plaintiff was given liberty to file replication, if any, in response to the said amended W.S. Subsequently, replication was filed by the plaintiff to the amended W.S. filed by the DDA. Fresh evidence was led on behalf of both the parties i.e. plaintiff as well as defendant.
CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 5 /216. Amended Written Statement was filed by the defendant/DDA, in which it is inter- alia contended by the defendant/DDA that the suit land falls in Kharsa No. 657 in the Revenue Estate of Bindapur and has been acquired by award No. 163/86-87. That the physical possession of the said land has been taken over from LAC/ L & B on 03.10.86. That the notification U/Sec. 22(1) of the DD Act has been issued, as such the plaintiff has no locus-standi or any right or title over the suit land for any relief. That after acquisition of the land and taking over the possession, the answering defendant has transferred the land to MCD on 11.11.1991 and the same is under its possession. As such, the MCD is a necessary party but it has not been impleaded. That the plaintiff under the garb of suit for possession is seeking declaration, as such statutory notice U/Sec. 53-B of the D.D Act
-1957 is compulsory and mandatory but the same has not been served upon the answering defendant.
It is further contended by the defendant that pursuant to the order of this Court, demarcation has been carried out by the Local Commissioner and the demarcation report dated 03.07.2009 filed by the local commissioner is acceptable to the defendant/DDA. That as per the said demarcation report, the suit land forms part of khasra no.657 of village Bindapur.
It is submitted by the defendant that the suit land falls in Khasra No. 657 Village Bindapur which stands acquired by award No. 163/86-87. That the formal possession of the said land has been handed over by LAC/L&B to DDA on 03.10.86 followed by notification No. F. 10(7)/80/L&B dated 17.10.86 issued under Section 22(1) of D.D. Act placing the land at the disposal of Khasra No. 657 of village Binda Pur i.e. suit land was handed over by LAC/L & B to DDA on 04.09.1991.
It is further contended that the land comprising Khasra No. 656 & 657 of village Bindapur was then transferred to Slum & JJ Department on 11.11.91 and is lying vacant duly fenced under the jurisdiction of MCD. That the plaintiff has no right, title or interest over the suit land. That the copy of aks shazra showing the suit land is also annexed. That so far as the status of Khasra No. 658 and 659 of village Binda Pur is concerned, the same is Gram Sabha land and on urbanization of the village, the land vested in Central Govt. Thereafter, by virtue of notification dated 19.08.2002, under section 22(1) of D.D. Act the said land has been placed at the disposal of DDA/ defendant. That in view of the CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 6 /21 position that Khasra No. 654 to 657 of village Bindapur is duly acquired and possession taken under the provisions of L.A. Act and that Khasra No. 658 and 659 of Village Bindapur being Gram Sabha land vested in Govt. on urbanization of the village and thereafter placed at the disposal of the DDA under section 22(1) of D.D. Act, the plaintiff hence has no right, title or interest in respect of either of the Khasra numbers mentioned above.
It is also submitted by the defendant that the plaintiff had earlier filed a suit no. 202/95 for the same cause of action and relief and the same has been dismissed as withdrawn. That the present suit of the plaintiff is misuse of the process of law. Hence, it is prayed that the present suit may be dismissed.
7. Record reveals that amended replication has also been filed by the plaintiff to the amended written statement filed by the defendant. The plaintiff has denied all the allegations also leveled by the defendant in the amended W.S. and reiterated and re- asserted all the facts as stated in the plaint.
It is submitted by the plaintiff that the suit plot falls in Khasra Nos. 658 and 659, Village Bindapur, Delhi. That the aforesaid Khasra numbers have not been acquired nor any compensation has been assessed in respect of the aforesaid Khasra numbers. That the aforesaid khasra numbers have also not been transferred by any notification for management and control to the DDA. That the defendants are unauthorised encroachers on the land owned by the plaintiff and want to grab the land of the plaintiffs. That since the only dispute in the present case is whether the suit property falls in Khasra No. 658, which is not an acquired land or in Khasra No. 656, which has been acquired by the government, therefore, to dissolve the controversy between the parties, the plaintiff submitted before the Ld. Trial Court on 08.03.2007 that the plaintiff wants to move an application U/o 26 Rule 9 for the appointment of some revenue officer as Local Commissioner to demarcate the suit land in which khasra number it falls.
8. Record reveals that the only contesting parties in the present case are the plaintiff and the Delhi Development Authority.
CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 7 /219. Thereafter, on the basis of the pleadings and submissions of the parties following issues were framed:-
ISSUES:-
(1). Whether the suit is bad for non-joinder of necessary parties, i.e. MCD? OPD (2). Whether the plaintiff has suppressed the material facts from the court, if so, its effect? OPD (3). Whether the plaintiff is entitled for the relief claimed for ? OPP.
(4). Relief.
10. Thereafter, the matter was fixed for plaintiff's evidence. The plaintiff examined herself as PW-1 on 12.03.2001 wherein she relied upon documents i.e. Ex. PW-1/1 to Ex.
PW-1/8. Subsequently, the plaintiff examined Smt. Veena Rani Tuteja, W/o Late Sh. J.C. Tuteja, SPA of plaintiff as PW-1. She has relied upon various documents i.e. Ex. PW-1/A to PW-1/F and Mark-1 to Mark-9.
Plaintiff also examined Sh. Rajinder Ram, Halka Patwari, Village Bindapur, Tehsil Najafgarh as PW-2.
Thereafter plaintiff closed her evidence.
11. Defendant also led its evidence and examined Sh. M.C. Sharma, Patwari, L.M, West Zone, DDA as DW-1.
Defendant also examined Sh. Munesh Sharma, Kanoongo, West Zone, Land and Management Department, DDA on 13.04.2005 as DW-1. He has relied upon various documents Ex. DW-1/1 to DW-1/5. This witness was again examined on 23.11.2017 as DW-1 wherein he relied upon various documents i.e. Award bearing No. 163/86-87 Ex. DW-1/1, possession proceedings dated 03.10.1986 Ex. DW-1/2, notification dated 17.10.1986 Ex. DW-1/3, copy of physical possession proceedings dated 04.09.1991 Ex. DW-1/4, the copy of Ask Shizra Ex. DW-1/5, the copy of notification dated 19.08.2002 as Mark- A and copy of demarcation report dated 19.09.2011 as Mark-B. He has also relied CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 8 /21 upon the copy of demarcation report dated 03.07.2009 along with Naksa Nazri Ex. PW- 1/D-1.
Defendant has also examined Sh. Prem Chand, Kanoongo as DW-2 and he has relied upon certified copy of gazette notification dated 19.08.2002 Ex. DW-2/1. He has also relied upon the demarcation report dated 03.07.2009 Ex. DW-2/2 along with Naksa Nazri {already Ex. PW-1/D1 (colly.) }.
Sh. Tej Pal, Kanoongo was also examined as DW-3. He has relied upon demarcation report dated 19.09.2011 Ex. DW-3/1.
Defendant also examined Sh. Suresh Kumar, Kanoongo from the office of LAC, South-West, Delhi as DW-4. He has relied upon the award bearing No. 163/86-87, Village Bindapur, copy of which is Ex. DW-4/1. He has also relied upon the certified copy of the possession proceedings dated 04.09.1991 and 03.10.1986 Ex. DW-4/2 (colly.).
Thereafter, defendant closed its evidence.
12. Arguments were advanced on behalf of Ld. Counsel for both the parties. I have carefully gone through the record, testimonies of the witnesses, documents and the case law relied upon by both the parties.
13. Perusal of the record reveals that vide order dated 04.07.2007, Ld. Predecessor of this court rejected the application U/o 1 Rule 10 CPC by recording the findings that 'MCD is not a necessary party'.
14. Record further reveals that vide order dated 16.03.2009, Ld. Predecessor of this court allowed the application U/o 26 Rule 9 CPC moved on behalf of the plaintiff by observing that visit to the spot is necessary to find out on which plot disputed land lies. It was further observed in the aforesaid order that where controversy between the parties is the area of land or identification or location of an CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 9 /21 object or the land, local investigation is necessary and essential requisite. Vide aforesaid order, the then Ld. Civil Judge (West) appointed SDM/Tehsildar, Bindapur, New Delhi as Local Commissioner for the purpose of demarcation of the suit premises. In pursuance of the aforesaid order, demarcation report along with photographs were filed and the said fact was recorded in the order dated 10.07.2009. Objections were filed on behalf of the plaintiff to the aforesaid demarcation report. Vide order dated 31.03.2011, the then Ld. Predecessor of this court disposed of all the objections regarding the demarcation report dated 03.07.2009 by holding that "Since the moot point of controversy is the dispute regarding the Khasra number of the suit property, I am of the considered view that without going into the merits objections to the demarcation report. Let, a fresh demarcation be carried out by the concerned official from the SDM office, Bindapur."
15. Ld. Predecessor of this court again appointed the concerned official from the SDM office of Bindapur as Local Commissioner for carrying out fresh demarcation. As such, fresh demarcation was directed to be done by the concerned official in pursuance of the aforesaid order. Fresh demarcation report was filed on behalf of the concerned SDM and the said fact gets recorded in the order dated 23.09.2011. On 09.05.2012, objections to the said demarcation report were filed on behalf of the plaintiff. In view of the objections of the plaintiff to the demarcation report dated 19.09.2011, fresh demarcation was directed to be carried out from the concerned officials of the SDM office, Bindapur by appointing them as Local Commissioner. Vide order dated 22.11.2012, the then Ld. Civil Judge has held that the counsel for plaintiff has rightly pointed out that the Local Commissioner had demarcated Khasra no. 657 without any directions or necessity. It was further observed by the then ld. Civil Judge that until this report was filed, it was nobody's case that the suit property falls in Khasra no. 657. However, the report begins with the remarks that it CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 10 /21 is being undertaken for demarcation of Khasra no. 657 and 658. After demarcating khasra no. 657, it has abruptly concluded that the suit property is situated within the demarcation done. It was observed by the court that the Local Commissioner had already decided where he wanted to show the suit property. Fresh demarcation was directed to be carried out by the concerned officials from the SDM Office, Bindapur by appointing him as Local Commissioner with observation that the directions of the Ld. Predecessor was to demarcate the suit property only and not khasra, as mentioned in the report.
16. Further vide order dated 19.03.2013, it was observed that as per report from the SDM office, there is no reference point as the area is heavily built up and therefore, demarcation of khasra no. 658 and 659 could not be carried out. It was further observed by the court that "The exact location of the suit property shall now be proved by way of giving other evidence."
17. Record further reveals that vide order dated 14.09.2015, Ld. Predecessor of this court allowed the application filed u/o 6 Rule 17 CPC on behalf of the defendant/DDA and accordingly, amended written statement filed on behalf of the defendant/ DDA was taken on record. Plaintiff was given liberty to file replication, if any, in response to the said amended W.S. Subsequently, replication was filed by the plaintiff to the amended W.S. filed by the DDA. Fresh evidence was led on behalf of both the parties i.e. plaintiff as well as defendant.
FINDING ON ISSUE NO. 1(1). Whether the suit is bad for non-joinder of necessary parties, i.e. MCD?
OPD CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 11 /21
18. Record reveals that vide order dated 04.07.2007, Ld. Predecessor of this court rejected the application U/o 1 Rule 10 CPC by recording the findings that 'MCD is not a necessary party'. In view of the above, the issue no.1 becomes infructuous. Same stands decided accordingly.
FINDING ON ISSUE NO. 2 and 3 (Both the issues are taken up together as both are interconnected with each other.) (2). Whether the plaintiff has suppressed the material facts from the court, if so, its effect? OPD (3). Whether the plaintiff is entitled for the relief claimed for ? OPP.
19. Present suit has been filed by the plaintiff praying therein to pass a decree for possession of plot No.99 measuring 200 sq. yds. forming part of Khasra No.658 situated in the Revenue Estate of Village at Bindapur, New Delhi in favour of the plaintiff and against the defendants. It is the case of the plaintiff that the plaintiff is Bhumidar/owner and in possession of plot bearing no. 99 measuring 200 sq. yds forming part of khasra no. 658 situated in the revenue estate of Bindapur, New Delhi having purchased the same from Smt. Sarjo Devi w/o Sh. Ram Sarup, R/o Village Bindapur, New Delhi through a registered sale deed dated 01.08.1984 duly registered with Sub-Registrar, Delhi. That the actual and physical possession of the aforesaid land (hereinafter called the suit land) was handed over by Smt. Sarjo Devi to the plaintiff. That the aforesaid suit land/plot was purchased after obtaining no objection certificate from the office of Tehsildar Notification/Addl. Distt. Magistrate (LA), Delhi.
20. Per contra, it has been contended on behalf of the defendant that that the suit land falls in Kharsa No. 657 in the Revenue Estate of Bindapur, which has been CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 12 /21 acquired vide Award No. 163/86-87. That the physical possession of the said land has been taken over from LAC/ L & B on 03.10.86. That the notification U/Sec. 22(1) of the DD Act has been issued, as such the plaintiff has no locus-standi or any right or title over the suit land for any relief. That after acquisition of the land and taking over the possession, the answering defendant has transferred the land to MCD on 11.11.1991 and the same is under its possession. That the plaintiff under the garb of suit for possession is seeking declaration which is not maintainable in view of the judgment of Hon'ble Supreme Court in the matter of Anathula Sudhakar vs. P Buchi Reddy & Ors AIR 2008 SC 2033.
21. I have heard both the parties and carefully gone through the materials available on record and the case law relied upon.
22. The Hon'ble Supreme Court has in the matter of Anathula Sudhakar vs. P. Buchi Reddy & Ors [AIR 2008 SC 2033], clarified the general principles as to when a mere suit for permanent injunction will lie and when it is necessary to file a suit for declaration and or possession with injunction as consequential relief, which is reproduced as under:
Para 11.1- When a Plaintiff is in lawful or peaceful possession of a property and such possession is disturbed or threatened by the defendant, a suit for injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner.
Para 11.2- Where the title of the Plaintiff is not disputed, but he is not in possession his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of his possession cannot seek the relief of CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 13 /21 injunction simpliciter, without claiming the relief for possession.
Para 11.3- Where the plaintiff is in possession but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and consequential relief of injunction. Where the title of the Plaintiffs is under cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.
23. It is pertinent to note that present case is suit for possession. No other relief of either declaration or injunction has been sought. Admittedly, the plaintiff is not in possession of the suit property. The title and ownership of the plaintiff over the suit property is in dispute. The defendant is asserting the title over the suit land. The very case of the defendant is rooted in disputing and rejecting the title of the plaintiff over the suit property. In such circumstances, necessarily the plaintiff was required to file a suit for declaration, possession and injunction. However, plaintiff chose to file the suit for possession only. In view of the facts and circumstances of the case, material available on record and legal position as settled in aforesaid judgment of Hon'ble Supreme Court of India in Anathula Sudhakar vs. P Buchi Reddy & Ors (supra), the present suit is not maintainable in the present format. However, considering the interest of justice, the court proceeds to examine the other aspects as raised by both the parties.
24. At the very outset, it assumes relevance and significance to note that present case is suit for possession and it is settled position of law that a suit for possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 14 /21 whether the defendants have proved their case or not.
25. The present suit has been filed by the plaintiff for passing a decree of possession of plot No.99 measuring 200 sq. yds. forming part of Khasra No.658 situated in the Revenue Estate of Village at Bindapur, New Delhi in favour of the plaintiff and against the defendants. It is the case of the plaintiff that that the plaintiff is Bhumidar/owner and in possession of plot bearing no. 99 measuring 200 sq. yds forming part of khasra no. 658 situated in the revenue estate of Bindapur, New Delhi having purchased the same from Smt. Sarjo Devi w/o Sh. Ram Sarup, R/o Village Bindapur, New Delhi through a registered sale deed dated 01.08.1984 duly registered with Sub-Registrar, Delhi
26. It is pertinent to note that vide order dated 19.03.2013, it was observed by the Ld. Predecessor of this court that as per report from the SDM office, there is no reference point as the area is heavily built up and therefore, demarcation of khasra no. 658 and 659 could not be carried out. It was further observed by the court that "The exact location of the suit property shall now be proved by way of giving other evidence."
27. At this juncture, it appears pertinent to refer the judgement of Hon'ble Supreme Court of India in Union of India & Ors vs Vasavi Co-Op. Housing Society 2014 (2) SCC 269 wherein it has been held by Hon'ble Apex Court that: -
"15. The legal position, therefore, is clear that the plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the defendants have proved their case or not. We are of the view that even if the title set up by the defendants is found against, in the absence of establishment of plaintiff's own title, plaintiff must be non-suited."CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 15 /21
28. In the present case, the onus was on the plaintiff to first lead evidence to prove and establish the identification and location of the suit land and then prove her ownership over the same. Right from the beginning, there has been cloud over the exact location of the suit property. It is pertinent to note that on the application of the plaintiff, the Ld. Predecessor of the court has ordered for demarcation of the suit property by appointing the local commissioner as many as on three occasions. However, despite all the efforts, the demarcation of suit property could not be carried out as there was no reference point due to the area being built up heavily. Accordingly, the Ld. Predecessor of the court has specifically held and ordered that the exact location of the suit property shall now be proved by way of giving other evidence.
29. However, the plaintiff failed to lead any substantive evidence to prove the exact location and identification of the suit property despite having ample opportunities for the same. Plaintiff failed to examine any independent witness to corroborate her version of the case. It is relevant to note that it is the plaintiff who sought the demarcation proceedings and as such it was incumbent upon her to produce the relevant records or take appropriate steps to ensure that the demarcation proceedings are carried out successfully. However, plaintiff is silent as to what steps she has taken to take the demarcation proceedings towards its logical conclusion. Plaintiff simply cannot wriggle out her responsibility by shifting the entire burden on the defendant. The conspicuous silence/inaction of plaintiff leaves no scope before the court but to take adverse inference against the case set up by the plaintiff.
30. The plaintiff has not placed on record any document nor has examined any witness to prove the location and boundaries of the said land. It is unbelievable that CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 16 /21 sale of the immovable properties could have taken place without identification of the property with regard to its location. As per existing practice all such transactions of immovable properties either bear the complete details of the boundaries to assist location of the property sold alongwith the site plan or is accompanied by aks- shijra. However, in the present case this has not been done and the plaintiff has not adduced in substantive evidence to prove boundary of the suit land.
31. The entire case of the plaintiff is based on placing reliance upon the Sale Deed dated 04.07.1984 i.e. Ex. PW-1/1. It has been asserted that the suit land has been purchased by the plaintiff from Smt. Sarjo Devi w/o Sh. Ram Sarup, R/o Village Bindapur, New Delhi through a registered sale deed. However, during her cross examination, PW1 has admitted to be not in possession of any document to show the ownership of Sarjo Devi from whom her mother allegedly purchased the suit property. Further, the witness claimed to have obtained written verification regarding disputed land. However, she failed to point out if any written verification was filed on record for the inspection of the court. Witness further admitted that her mother never intimated the revenue authority regarding the purchase of the suit property.
32. It is the case of the defendant that pursuant to the order of this Court, demarcation has been carried out by the Local Commissioner and the demarcation report dated 03.07.2009 filed by the local commissioner is acceptable to the defendant/DDA. The defendant has relied upon the demarcation report dated 03.07.2009 i.e. Ex.PW1/D1 As per the said demarcation report the suit land forms part of khasra no.657 of village Bindapur.
33. It has been further contended by the answering defendant that the suit land falling in Khasra No. 657, Village Bindapur has been acquired vide Award No. CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 17 /21 163/86-87. That the formal possession of the said land has been handed over by LAC/ L&B to DDA on 03.10.1986. Thereafter, the physical vacant possession of Khasra No. 657 of village Bindapur i.e., suit land was handed over by LAC/ L&B to DDA on 04.09.1991. That the land comprising Khasra No. 656 & 657 of village Bindapur was then transferred to Slum & J.J. Department on 11.11.1991 and is lying vacant duly fenced under the jurisdiction of MCD. That the plaintiff has no right, title or interest over the suit land. That so far as the status of Khasra No. 658 and 659 of village Bindapur is concerned, the same is Gram Sabha land. That on urbanization of the village, the land vested in Central Govt. Thereafter, by virtue of notification dated 19.08.2002 U/Sec. 22(1) of DD Act, the said land has been placed at the disposal of the DDA/ department. That in view of the position that Khasra No. 654 to 657 of village Bindapur is duly acquired and possession taken under the provision of L.A. Act and that Khasra No. 658 and 659 of Village Bindapur being gram Sabha land vested in Govt. on urbanization of the village and thereafter placed at the disposal of the DDA under Sec. 22(1) of D.D. Act, the plaintiff hence has no right, title or interest in respect of either of the Khasra numbers mentioned above.
34. The defendant has examined Sh. Prem Chand, Kanoongo as DW-2 and he has relied upon certified copy of gazette notification dated 19.08.2020 Ex. DW-2/1. He also relied upon the demarcation report dated 03.07.2009 Ex. DW-2/2 along with Naksa Nazri {already Ex. PW-1/D1 (colly.) }. Defendant also examined Sh. Munesh Sharma, Kanoongo, West Zone, Land Management deparatment, DDA as DW-1, who relied upon various documents i.e. Award bearing No. 163/86-87 Ex. DW-1/1, possession proceedings dated 03.10.1986 Ex. DW-1/2, notification dated 17.10.1986 Ex. DW-1/3, copy of physical possession proceedings dated 04.09.1991 Ex. DW-1/4, the copy of Ask Shizra Ex. DW-1/5, the copy of notification dated 19.08.2002 as Mark- A and copy of demarcation report dated 19.09.2011 as CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 18 /21 Mark-B. He also relied upon the copy of demarcation report dated 03.07.2009 along with Naksa Nazri Ex. PW-1/D-1.
Sh. Tej Pal, Kanoongo was examined as DW-3. He has relied upon demarcation report dated 19.09.2011 Ex. DW-3/1.
Defendant also examined Sh. Suresh Kumar, Kanoongo from the office of LAC, South-West, Delhi as DW-4. He has relied upon the award bearing No. 163/86-87, Village Bindapur, copy of which is Ex. DW-4/1. He has also relied upon the certified copy of the possession proceedings Ex. DW-4/2 (colly.).
35. It has been argued by the Ld. Counsel for defendant that even if it is assumed for the sake of arguments that the suit land falls in Khasra No. 658 as alleged by the plaintiff, the prayer of the possession of the plaintiff over the suit property still falls flat for the simple reason that the Khasra No. 658 and 659 of Village Bindapur belong to gram Sabha land and with urbanization of village Bindapur, the same automatically vested in Central Government. It was further contended that by virtue of notification dated 19.08.2002 U/Sec. 22(1) of DD Act, the said land has been placed at the disposal of the DDA/ department and as such the plaintiff has got no right, title or interest in respect of either of the Khasra numbers mentioned above. The defendant has relied upon the naksa Nazri filed alongwith demarcation report dated 03.07.2009 i.e. Ex. PW-1/D-1. It has been contended by the Ld. Counsel for the defendant that the report of the Local Commissioner is a legal evidence under Order 26 Rule 10(2) Civil Procedure Code and the same can be looked into and relied upon without formal proof of the said report. Reliance has been placed upon judgement of Hon'ble Delhi High Court in the case titled as New Multan Timber Store and Ors. vs Rattan Chand Sood 68 (1997) DLT 680.
CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 19 /2136. Ld. Counsel for plaintiff has opposed the demarcation report and the documents filed alongwith it by submitting that the plaintiff has filed objections to the report of the local commissioner. It has been further contended that the report of the local commissioner has not been proved by the examining the Local commissioner.
37. In New Multan Timber Store and Ors. vs Rattan Chand Sood 68 (1997) DLT 680, it has been held by Hon'ble Delhi High Court that: -
"(12) Admittedly the Commissioner Shri Ishwar Dass was appointed on March 4, 1976 by the learned Sub Judge at the instance of the appellants on their application dated January 9, 1970 moved by them. The commission was executed in the presence of both the parties. The report of the Commissioner dated September 13, 1970 bears the signatures of the appellants. Thus, it does not lie in the mouth of the appellants to say that since the Commissioner was not examined hence the said report should not be taken into consideration. Non-examination of the Commissioner does not invalidate the said report. It is legal evidence as per the provisions of Order 26 Rule 10(2) CPC. Furthermore, the appellants could have examined the Local Commissioner, if they wanted to do so, and they could have made a request to that effect to the learned Sub Judge who could have granted their prayer under Order 26 Rule 10(2) CPC. However, for the best reasons known to them they did not avail of the said opportunity. Consequently, this Court feels that this argument is not available to the learned counsel for the appellants."
38. In the present case also, it is matter of record and undisputed that the Local Commissioner was appointed on 16.03.2009 by the then learned Civil Judge at the instance of the plaintiff on her application. The commission was executed in the presence of both the parties. The report of the Commissioner dated 03.07.2009 bears the signatures of the plaintiff. Thus, the contention of the Ld. Counsel for the plaintiff does not hold the ground that since the Commissioner was not examined hence the said report should not be taken into consideration. In view of the aforesaid judgment of Hon'ble Delhi High Court and considering the facts and circumstances of the case, the non-examination of the Commissioner does not CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 20 /21 invalidate the said report.
39. Further, as per the documents filed alongwith demarcation report dated 03.07.2009, the Khasra No. 658 and 659 of Village Bindapur belong to gram Sabha land. Moreover, the defendant has examined DW-1 and produced documents i.e. Award bearing No. 163/86-87 Ex. DW-1/1, possession proceedings dated 03.10.1986 Ex. DW-1/2, notification dated 17.10.1986 Ex. DW-1/3 and copy of physical possession proceedings dated 04.09.1991 Ex. DW-1/4 to substantiate its claim that the Khasra No. 657 of village Bindapur is duly acquired and possession of the same has been duly taken under the provision of Land Acquisition Act. However, except giving formal suggestions, no evidence has been led by the plaintiff to discredit the aforesaid documents produced by the defendant witnesses. In view of the aforesaid legal positions and considering the materials available on record and facts and circumstances of the case, it was the plaintiff who was to examine the witness to rebut the case of the defendant. In the considered opinion of the court, the defendant has led sufficient evidence to rebut the presumption which the plaintiff has sought by filing the registered sale deed. The onus was squarely on the plaintiff to prove the location of the suit land and the competency of the Sarjo Devi, from whom the suit land has been alleged to have been purchased, to execute and pass on the valid title deed over the suit land. However, plaintiff has failed to discharge the onus by leading the evidence of cogent and credible nature. In view of the totality of facts and circumstances of the case, the version put forth by the plaintiff does not inspire the confidence of the court.
40. So far as claim of the suit property being singled out by the defendant against the similarly situated persons in the area/locality is concerned, the onus to prove this issue was on plaintiff. However, no independent witness has been examined or materials produced to substantiate this claim. Moreover, even if it is assumed that CS. 60 6830/2016 Smt.Shanta Rani Vs. DDA. Page 21 /21 DDA has not set up the claim against the similarly situated persons as of now, the same itself does not make the plaintiff entitled to the suit property. The case of the plaintiff needs to stands on its own legs.
41. In view of the aforesaid discussions, it is held that the plaintiff failed to prove her case by preponderance of probabilities and as such not entitled to relief of possession. So far as suppression of material facts are concerned, the onus to prove this issue was on the defendant. However, no definite evidence has been led to prove the same and as such the said issue stands disposed off accordingly. Issue No. 2 and 3 are decided accordingly.
Relief:
42. In view of findings on the issues and reasons as given earlier, present suit is dismissed.
43. Decree sheet be prepared accordingly.
44. File be consigned to Record Room after due compliance.
Announced in the open court Digitally signed
by DEEPAK
On 21st October, 2021. DEEPAK KUMAR
Date:
(This judgment contains 21 pages) KUMAR 2021.10.21
18:41:26
+0530
DEEPAK KUMAR-I
Commercial Civil Judge,
West District, Delhi.