Delhi District Court
Smt. Shital Devi vs Delhi Development Authority on 2 April, 2018
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IN THE COURT OF SH. DEEPAK VATS, CIVIL JUDGE, DELHI
(WEST)02
SUIT NO.609579/16
Smt. Shital Devi
W/o Late Joginder Singh,
R/o H.No.D1/41, Harsh Dev Park,
Budh Vihar, PhaseII, Delhi
..........................PLAINTIFF
VERSUS
1. Delhi Development Authority
Vikas Sadan, INA Market,
New Delhi
Through its Vice Chairman
2. Station House Officer
P.S. Sultanpuri, Delhi.
.....................DEFENDANTS
Suit filed on - 20/11/2006
Judgment Reserved on - 13/03/2018
Date of decision - 02/04/2018
SUIT FOR PERMANENT INJUNCTION
JUDGMENT: By this judgment I shall dispose of a suit for permanent injunction filed by the plaintiff against the defendants. Before adjudicating upon the issues framed in the present suit, I feel it necessary to dwell upon the plethora of pleadings in the present suit.
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Pleadings of the plaintiff :
1. The brief facts of the case as per the plaint are that the plaintiff is the sole and absolute owner of built up property bearing No.D1/41 measuring 50sq. Yds., Harsh Dev Park, Budh Vihar, PhaseII, in the area of Village Pooth Kalan, Delhi (hereinafter referred to as suit property) which he had purchased on 28/12/1989 from Sh. Ranbir Singh against consideration and execution of various sale and purchase documents.
It is further the case of plaintiff that in the year 1993 a survey of the aforesaid area was conducted by defendant no.1/DDA for regularization of authorized colony and accordingly a site plan was got prepared by the residents of the area and was submitted with the defendant no.1. It is averred that plaintiff is in occupation and possession of the said property without any interruption and defendant no.1 has no right, title or interest over the same.
It is averred that the land comprised in Khasra No.47/1, 47/2 and 48/5/3 within the area of Village Pooth Kalan in the colony known as Mange Ram Park Extn. Budh Vihar, PartII, behind Braham Shakti Hospital, Delhi was acquired by defendant no.1. It is further stated that defendant no.1 wanted to remove the illegal encroachers from there and to demolish the unauthorised construction for which police assistant was taken and an FIR was also got registered.
It is further averred that in the demolition drive carried out by the defendant no.1 on 18/09/06, it not only demolished the construction in Khasra No.47/1, 42/2 and 48/5/3 of said Village Pooth Kalan, Delhi but also caused substantial damage to the property of the plaintiff which forms part of Khasra No.48/4 and does not fall in the above said khasras and has never been acquired by the defendant no.1 nor it has any right, title or interest over the same. It is stated that the plaintiff is still in the possession of suit property comprising the construction which was not demolished. It is averred that no notice was ever Suit No.609579/16 Page2/10 3 served by the defendant no.1 before carrying out the demolition drive.
It is further the case of the plaintiff that on 16/11/06 some officials of the defendant no.1 accompanied with subordinates of defendant no.2 came to the property of plaintiff and asked her to leave from there and threatened that if the plaintiff does not voluntarily vacate the same, the entire construction would be demolished and plaintiff would be thrown out by using force.
It is further averred that the acts of the defendants is wrong, illegal, unlawful, arbitrary, malafide and without any right or claim and they are adamant to demolish the entire construction and to dispossess the plaintiff forcibly.
Hence, finding no other efficacious remedy, the present suit has been filed by the plaintiff seeking a decree of permanent injunction in her favour thereby permanently restraining the defendants from causing any further damage to the property of plaintiff bearing No.D1/41 measuring 50sq. Yds., Harsh Dev Park, Budh Vihar, PhaseII, in the area of Village Pooth Kalan, Delhi and also from dispossessing her from the said house.
Pleadings of the defendants :
2. The amended WS was filed on behalf of defendant no.1 wherein certain preliminary objections were taken namely, plaintiff has no locus standi to file the present suit as Khasra No.47/2 stands acquired and same is now part of Rohini Residential Scheme. It is contended that the plaintiff has not valued the suit properly for the purpose of court fees and jurisdiction. It is further contended that the suit is not maintainable as the plaintiff is seeking declaration in the garb of permanent injunction. It is contended that Union of India and LAC are necessary parties of the present suit, hence, the suit is bad for nonjoinder of necessary parties. It is further contended that plaintiff has not come to the court with clean hands and has suppressed the material facts from this court.
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In reply on merits, the defendant no.1 has denied all the averments made in the plaint as false and frivolous and it has been prayed that the suit of the plaintiff be dismissed with costs. It is claimed that suit property lies in Khasra No.47//2 which has been duly acquired, possession of which has been taken and the same has been placed at the disposal of defendant no.1. It is further stated that the plaintiff encroached upon land of defendant no.1 and the said encroachment was removed on 18/09/06 and thereafter the plaintiff re encroached upon the land of defendant no.1. It is thus stated that suit of plaintiff is without any substance.
3. Subsequently, the WS was filed on behalf of defendant no.2 wherein certain preliminary objections were taken namely, the suit of the plaintiff is not maintainable against the answering defendant. It is contented that defendant no.2 cannot be served directly and he can only be served through Commissioner of Police. It is further contended that defendant no.2 is a Government Servant and plaintiff should have filed the present suit as per the provisions of Order27 R.5
(a) CPC. It is alleged that suit of the plaintiff is not maintainable as no notice U/S 140 of D.P. Act and U/S 80 of CPC have been served by the plaintiff upon the answering defendant. It is contended that the plaintiff has not come to the court with clean hands and has suppressed the material facts. It is further contended that the suit is bad for misjoinder and nonjoinder of necessary party as the answering defendant is not a necessary party as plaintiff is only seeking the relief qua defendant no.1. Plaintiff has no cause of action to file the present suit and same is liable to be rejected U/O 7 R.11 CPC and is also hit by the provisions of Section 41(h) of Specific Relief Act.
In reply on merits, the defendant no.2 has denied all the averments made in the plaint as false and frivolous and it has been prayed that the suit of the plaintiff be dismissed with costs.
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4. Replication has also been filed on behalf of plaintiff to the WS of defendants wherein the averments made in the WS were denied and those made in the plaint were reiterated and reaffirmed.
5. It is pertinent to mention here that issues were framed in the matter vide orders dt.30/05/07. Perusal of the record further shows that vide order dt.24/09/12 the issue no.3 was amended and was reframed as under : "Whether the plaintiff has no locus standi to file the present suit as the suit property stands acquired and its possession has been handed over to DDA on 13/11/1985 and it was also placed at the disposal of DDA vide notification dt.10/04/1986 U/S 22(1) of DD Act? OPD"
Now, the issue framed in the matter vide order dt.30/05/2007 will be read as under :
1. Whether the plaintiff is the sole and absolute owner of the suit property? OPP
2. Whether the plaintiff is entitled to decree of injunction as prayed for? OPP
3. Whether the plaintiff has no locus standi to file the present suit as the suit property stands acquired and its possession has been handed over to DDA on 13/11/1985 and it was also placed at the disposal of DDA vide notification dt.10/04/1986 U/S 22(1) of DD Act? OPD
4. Whether the plaintiff is seeking the decree of declaration in the garb of permanent injunction? OPD
5. Whether the suit is bad qua defendant no.2 for want of statutory notice U/S 140 DP Act and notice U/S 80 CPC? OPD
6. Relief.
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It is pertinent to mention here that on 12/02/2009 a statement was given by the counsel for plaintiff thereby dropping the defendant no.2 from the array of parties. Accordingly, defendant no.2 has already been deleted from the array of parties.
6. In order to prove her case plaintiff got examined only one witness I.e. herself as PW1 and led her evidence by way of affidavit which is Ext. PW1/A. Some documents were also exhibited by PW1 which are as under : The site plan is exhibited as Ext. PW1/1. The photocopies of GPA, Agreement, Affidavit, Receipt and Voter ICard of plaintiff are exhibited as Ext. PW1/2 (OSR) to PW1/7 (OSR) respectively. PW1 was also crossexamined by the counsel for defendant no.1/DDA only.
On the other hand, defendant no.1/DDA got examined only one witness I.e. Sh. Tej Pal, Kanoongo, Rohini Zone, Land Management Department, DDA as DW1 and he tendered his evidence by way of affidavit Ext. DW1/A. Some documents were also exhibited by DW1 which are as under : The copy of Award No.20/8586 is marked as MarkA (This document is mentioned as Ext. DW1/1 in the affidavit). The certified copy of the possession proceedings dt.13/11/1985 is Ext. DW1/2. Ext. DW1/3 (OSR) is the copy of the notification dt.10/04/1986 U/S 22 (1) of DD Act. The copy of akshijra is Ext. DW1/4 (OSR). The rough location plan is Ext. DW1/4A. The copy of demolition diary is Ext. DW1/5 (OSR). DW1 was also crossexamined by the counsel for plaintiff.
7. The arguments have been heard and the record has been carefully perused. Now, I shall give my issuewise findings which are as under : I shall take up the issues no.1, 2 & 3 together and decide them as common question of law and fact are involved.
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8. ISSUE NO.1, 2 & 3 Whether the plaintiff is the sole and absolute owner of the suit property? OPP Whether the plaintiff is entitled to decree of injunction as prayed for? OPP Whether the plaintiff has no locus standi to file the present suit as the suit property stands acquired and its possession has been handed over to DDA on 13/11/1985 and it was also placed at the disposal of DDA vide notification dt.10/04/1986 U/S 22(1) of DD Act? OPD The onus to prove issues no.1 & 2 was upon the plaintiff and the onus to prove issue no.3 was upon the defendants.
The bone of contention between the parties is as to in which khasra number the suit property lies i.e. Khasra No.48//4 (as claimed by the plaintiff) or Khasra No.47//2 (as claimed by the defendant). Initial onus to prove that suit property lies in Khasra No.48//4 was upon the plaintiff. Plaintiff has placed on record documents I.e. GPA, Agreement, Affidavit, Receipt and Voter ICard exhibited Ext. PW1/2 (OSR) to PW1/7 (OSR) respectively whereby it is claimed by her that she has purchased the suit property from one Sh. Ranbir Singh. In all these documents the suit property is stated to be lying in Khasra No.48//4. However, in the crossexamination of plaintiff she has categorically admitted that suit property lies in Khasra No.47//2. The plaintiff has not placed on record any demarcation report or other document to negate the effect of categoric admission made on behalf of the plaintiff and to prove that suit property lies in Khasra No.48//4 and not in 47//2. In such circumstances, especially in view of the admission made on behalf of the plaintiff, it may be concluded that the initial onus to prove that suit property lies in Khasra No.48//4 is not discharged.
So far as the evidence led by defendant is concerned, perusal of record shows that in the original WS the defendant/DDA did not challenge the claim of Suit No.609579/16 Page7/10 8 the plaintiff that suit property lies in Khasra No.48//4. Rather, in the original WS it was claimed that Khasra No.48//4 stands acquired, though possession of the same was not taken. It was further stated in the original WS that no demolition proceedings had been initiated in Khasra No.48//4. During the pendency of the suit an application U/O 6 R.17 CPC, filed on behalf of the defendant/DDA, was allowed vide order dt.03/05/12 and the defendant DDA was allowed to amend its WS. In the amended WS the defendant took a Uturn and claimed that the suit property lies in Khasra No.47//2 and the same was encroached upon by the plaintiff.
However, as discussed above the plaintiff has failed to discharge the initial onus lay upon her to prove that suit property lies in Khasra No.48//4 and she has admitted that suit property lies in Khasra no.47//2. As such, it is concluded that the suit property lies in Khasra No.47//2.
Now that it has been concluded that suit property lies in Khasra No.47/2 it has to be seen what right the parties have with respect to the suit property. As far as the plaintiff is concerned, she has placed on record Ext. PW 1/2 to PW1/5 to show that the suit property was purchased by the plaintiff from one Sh. Ranbir Singh. Admittedly, the said documents are not registered and thus the same are hit by Section17 (1) of Registration Act, thus the same cannot result into transfer of rights in suit property in favour of plaintiff. Also Sh. Ranbir Singh from whom the plaintiff has claimed to have purchased the suit property, has not been examined by the plaintiff. Further, previous chain of documents showing that Sh. Ranbir Singh was the owner of the suit property has not been filed, neither any witness has been produced to prove the same. Further, the said documents are dt.28/12/1989 and award No.20/8586, MarkA (filed by the defendant/DDA and not denied by the plaintiff), through which the suit property was acquired is dt.11/11/1985. Thus, the said documents have been executed after the award was issued. As such, the said transfer is also hit by Suit No.609579/16 Page8/10 9 Section3 & 4 of the Delhi Land (Restrictions on Transfer) Act, 1972 which provides that after the issuance of award the acquired land cannot be transferred. The documents Ext. PW1/2 (OSR) to PW1/5 (OSR), through which the plaintiff has sought to prove that she has purchased the suit property, do not bear signature of the plaintiff. Above all, the suit property has already been found to be lying in Khasra No.47//2 and all the documents placed on record by the plaintiff mention the suit property to be lying in Khasra No.48//4, thus the documents cannot be believed and the same are invalid and void and it can be inferred that the plaintiff has failed to prove her ownership over the suit property. Moreover, the claim of the plaintiff that she is in possession of the suit property cannot also be believed as all the documents placed on record by her pertain to Khasra No.48//4 and not in Khasra No.47//2.
Now, the right of DDA over the suit property needs to be looked into. DDA has placed on record the copy of Award No.20/8586 MarkA to show that vide the said document, interalia Khasra No.47//2 was acquired. Document Ext. DW1/2 has been placed on record by DDA showing interalia that the possession of Khasra No.47//2 was taken. Also Ext. DW1/3 (OSR) has been placed on record showing interalia that the land comprising Khasra No.47//2 was placed at disposal of DDA. All these documents have not been challenged by the plaintiff. As such, DDA has been successful in proving that the land was duly placed at the disposal of DDA.
Accordingly, the issue no.1 to 3 are decided in favour of defendant and against the plaintiff.
9. ISSUE NO.4 Whether the plaintiff is seeking the decree of declaration in the garb of permanent injunction? OPD The onus to prove this issue was upon the defendants.
No evidence has been led to prove the said issue. Further, while
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deciding issue no.1 to 3 a categorical finding has been reached that the plaintiff has failed to prove the ownership over the suit property. Accordingly, in the opinion of this court the plaintiff is not seeking the decree of declaration in the garb of permanent injunction.
Accordingly the present issue is decided in favour of plaintiff and against the defendants.
10. ISSUE NO.5 Whether the suit of plaintiff is not maintainable for want of mandatory notice U/S 140 Delhi Police Act? OPD The onus to prove this issue was upon the defendants.
Defendant no.2 was deleted from the array of parties on 12/02/2009. As the defendant no.2 was deleted, hence, there is no need to give any findings on this issue. Accordingly, this issue remains unproved.
11. ISSUE NO.6 RELIEF In view of the findings given on issues no.1 to 5 documents placed on record, pleadings of the parties and evidence led by the parties, the plaintiff has failed to prove her case on the scale of preponderance of probabilities. Accordingly, suit of the plaintiff is dismissed.
Decree sheet be prepared accordingly. File be consigned to record Digitally signed room after completing the necessary formalities. DEEPAK by DEEPAK VATS VATS Date: 2018.04.02 16:28:11 +0530 (Deepak Vats) Civil Judge (West)2, Delhi Pronounced in the open court on 02/04/2018.
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